North-American legal realism and scandinavian legal realism: the metaphisics problem
Legal realism was a movement of the 1920s and 1940s. Realism seems to reject metaphysics, to criticize formalism, as well as to use logic in the pursuit of legal certainty. For the realists, it matters the performance of the judges, as well as the application by them of the legal norms. Thus, realis...
| Autores: | , |
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| Formato: | artículo |
| Estado: | Versión publicada |
| Fecha de publicación: | 2018 |
| País: | Brasil |
| Recursos: | Universidade Nove de Julho (UNINOVE) |
| Repositorio: | Revista Prisma Jurídico |
| Idioma: | portugués |
| OAI Identifier: | oai:ojs.periodicos.uninove.br:article/8704 |
| Acesso em linha: | https://periodicos.uninove.br/prisma/article/view/8704 |
| Access Level: | acceso abierto |
| Palavra-chave: | Law Theory of law Legal realism. Direito Teoria do direito Realismo jurídico. |
| Resumo: | Legal realism was a movement of the 1920s and 1940s. Realism seems to reject metaphysics, to criticize formalism, as well as to use logic in the pursuit of legal certainty. For the realists, it matters the performance of the judges, as well as the application by them of the legal norms. Thus, realism seems to contradict positivist law, according to which judges decide, first, according to pre-established norms. Law, in this sense, is based more on the judicial attitude than on the current legal system. The article aims at legal realism, aiming to analyze its North American and Scandinavian currents. He problematizes in both currents the common anti-metaphysical thesis, questioning the essentialism of the realist theses themselves. Methodologically, we will analyze the US legal realism, followed by the analysis of Scandinavian legal realism, in order to analyze the essentialist thesis. For the analysis, the method of deductive research, with bibliographic technique, is adopted. At the end of the study, the hypothesis presented initially was proved, demonstrating that the set of realistic theses, despite criticism of metaphysics, seems to present a metaphysical knowledge of Law. Therefore, one can conclude that realism rests on the very essentialism from which it seeks to move away, since the study of realist theses presupposes a prior knowledge of reality. |
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