Legal realism is a philosophy of law that originated in the twentieth century. As a fairly modern legal philosophy, legal realism brings its kind of perspective to modern legal practices and the national legal systems of modern countries. One prime aspect of legal realism is that it distinguishes itself from a more technical legal approach.
Forms of legal realism became popular in both the United States and in Scandinavia in the 1900s, and some elements have persisted ever since. The philosophy examines the law from a “real world” perspective, and suggests that it is not the actual legislation that shapes legal outcomes, but what judges will enforce and what a legal community or general population will accept. A "realism" approach to the law also contends that technical law as legislated is often faulty and may not conform to some commonly held human principles.
Important figures, including high level judges in some countries, have embraced legal realism over the years. This kind of legal philosophy competes with a “mechanical jurisprudence” approach that holds technical legislation as an ideal law to be ruled on by judges. In contrast, the more intuitive approach gives a lot more power to judges than it does to legislators, at least in theory.
Legal realism has often generated healthy debates in legal communities or legal education programs about what the law “should be.” One similar idea that gets incorporated into these debates is the idea of a “rule of higher law.” The rule of a higher law argument separates the legislation of a national government from the principles of morality, decency, and humane treatment of individuals; it seeks to show how the former may be at fault in various ways, or, in a legal setting, subjugated to the higher principle in practice, i.e. in the courts.
Beyond being a tool for debate over legal structures in the role of law within a society, the idea of legal realism can help outsiders analyze a legal system in various ways. Part of what made this idea thrive is its distinction from a simply empirical view of the law, and to those outside a system, a legal realism approach can be extremely useful in judging not only the intent of legislation, but its actual results. Journalists and others who weigh in on legislation could find legal concepts of realism, and related concepts, to be the best basis for an analysis of legal changes, and law-related opinion pieces.
