The Realist Approach to Law Making (OCR A-Level Law): Revision Notes
The Realist Approach to Law Making
Introduction to legal realism
Legal realism is a school of thought that challenges traditional views about how law operates in practice. Unlike formalist approaches that view law as a system of objective rules leading to predictable outcomes, realists argue that legal decision-making is far more subjective and influenced by human factors.
The realist perspective emerged from observations that judges frequently disagree on cases, even when applying the same legal principles and precedents. This disagreement suggests that something beyond pure legal reasoning influences judicial outcomes. Realists maintain that if law were truly objective and mechanical, legal disputes would be far easier to resolve, predictions of case outcomes would be more accurate, and many disputes would settle before reaching court.
Legal realism is fundamentally concerned with how law functions in reality rather than how it theoretically should function. It examines the practical application of legal rules and the human elements that shape judicial decisions.
Types of realism
Realist thought encompasses different perspectives on law and society, particularly regarding crime and law enforcement. Two main branches exist: left realism and right realism. These approaches differ fundamentally in their analysis of crime causation and their proposed solutions.
Left realism
Left realism approaches crime from a structural and societal perspective. This theory argues that inequality is the primary cause of criminal behaviour. According to left realists, crime results from social and economic disadvantages that create conditions where criminal activity becomes more likely.
The left realist approach advocates for community-based interventions to address crime. Rather than focusing solely on punishment, left realists believe that reducing crime requires tackling its root causes through social programmes, improved education, employment opportunities, and community support systems. This perspective emphasises prevention through social reform.
Left realism has strong connections to Marxist theory, which views social problems, including crime, as products of economic inequality and class conflict. Marxist thinking suggests that the legal system itself may reflect and reinforce existing power structures and inequalities in society.
Right realism
Right realism takes a contrasting view, emphasising individual responsibility for criminal behaviour. This theory argues that individuals choose to commit crimes and must be held accountable for their decisions. Rather than focusing on social causes, right realists believe that crime results from inadequate deterrence and insufficient consequences.
The right realist approach advocates for tough enforcement measures to reduce crime. This includes stricter sentencing, more robust policing, and policies that emphasise punishment as a deterrent. Right realists argue that society must take a firm stance against criminality to maintain order and protect law-abiding citizens.
Charles Murray's underclass theory significantly influenced right realist thinking. Murray argued that a distinct underclass had emerged, characterised by dependency on welfare, family breakdown, and criminal behaviour. According to this theory, cultural factors within certain communities perpetuate crime, and tough measures are necessary to address these problems.
The realist school of thought
Core principles of legal realism
The realist school of thought fundamentally questions whether law provides objective, determinate answers to legal disputes. Realists observe that judicial disagreement is commonplace, and judges regularly rely heavily on precedent and complex legal arguments to justify their decisions. According to realist theory, this pattern exists because there is rarely a single correct answer in most legal disputes. Instead, multiple reasonable but different viewpoints exist, each reflecting subjective interpretation.
Realists argue that precedents and statutes alone are insufficient to determine the correct legal outcome in many cases. While these sources provide frameworks and guidance, they do not mechanically produce answers. Legal texts require interpretation, and interpretation involves judgment calls that different people may make differently.
The outcome often depends on a particular judge's political opinions, personal values, and life experiences rather than purely on objective legal analysis. This perspective explains why legal disputes proceed to court and why outcomes can be difficult to predict. If law were truly a matter of applying clear rules to facts, far fewer cases would need judicial determination. The existence of ongoing legal debate and uncertainty supports the realist claim that subjective elements play a crucial role in legal outcomes.
Judges and the law-making process
A particularly significant realist argument concerns how judges actually make decisions. Realists suggest that judges often begin with their desired outcome and work backwards to construct legal justification for that result. The lengthy written judgments that judges publish may simply rationalise decisions that were actually made on other grounds, such as what seems fair, practical, or socially desirable in the circumstances.
According to this view, the detailed legal reasoning in judgments serves to legitimise what is essentially an arbitrary decision made in response to real human needs and practical considerations. Judges craft legal arguments that support their preferred outcome rather than allowing abstract legal rules to dictate the result. This process is not necessarily conscious or dishonest; judges may genuinely believe they are following legal principles while unconsciously being influenced by their own perspectives.
Realists emphasise that judges are human beings with political views, moral beliefs, and personal biases that inevitably influence their decision-making. Two judges with different backgrounds or political leanings may reach different conclusions in the same case, each using legitimate legal reasoning to support their position. This reality contradicts the traditional view of judges as neutral umpires mechanically applying law.
Lord Reid's perspective
Lord Reid, a highly respected Law Lord, famously acknowledged the law-making role of judges. He stated:
There was a time when it was thought almost indecent to suggest that judges make law – they only declare it ... But we do not believe in fairy tales anymore.
This quote represents a significant judicial acknowledgment of what realists had long argued. The traditional declaratory theory held that judges merely discovered and declared pre-existing law, never creating new legal rules. Lord Reid's statement explicitly rejects this fiction, admitting that judges do make law rather than simply finding it.
This admission is particularly important because it comes from within the judiciary itself. Lord Reid's candour validates the realist critique and acknowledges that judicial decision-making involves creative law-making, particularly in difficult cases where existing legal materials do not provide clear guidance. His statement reflects a more honest understanding of how the legal system actually operates.
Exam guidance
Always reference specific theorists to support your arguments. Questions may ask you to discuss, analyse, or evaluate the realist approach, requiring both knowledge (AO1) and critical evaluation (AO3).
For discussion questions using phrases like "discuss the extent to which," you must:
- Demonstrate understanding of realist principles
- Reference key theorists (Charles Murray for right realism, Marxist connections for left realism, Lord Reid for judicial law-making)
- Analyse both strengths and weaknesses of the realist perspective
- Consider alternative theories (such as formalism or natural law)
- Reach a balanced, reasoned conclusion that directly addresses the question
Effective answers will use specific examples to illustrate how realist theories apply to actual legal situations. Consider how judicial disagreements in landmark cases demonstrate that legal outcomes depend on subjective interpretation rather than mechanical rule application.
Remember!
Key Points to Remember:
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Legal realism challenges the view that law provides objective answers; it argues that judicial decisions reflect subjective interpretation influenced by judges' personal and political views
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Left realism focuses on inequality as the root cause of crime and advocates community-based interventions to address social problems; it has connections to Marxist theory
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Right realism emphasises individual responsibility for criminal behaviour and advocates tough enforcement measures; it is associated with Charles Murray's underclass theory
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Realists argue judges make law rather than simply declaring it; Lord Reid's famous quote acknowledges that "we do not believe in fairy tales anymore" about judges merely finding pre-existing law
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Precedents and statutes are insufficient on their own to determine legal outcomes; interpretation requires subjective judgment, explaining why judges disagree and why cases proceed to court
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Always reference key theorists in exam answers: Charles Murray (right realism), Marxism (left realism), and Lord Reid (judicial law-making)