Jerome Frank Legal Realism

Legal philosophers also deal with a variety of philosophical problems that arise in certain legal entities such as constitutional law, contract law, criminal law, and tort law. Thus, the philosophy of law deals with topics as diverse as theories of contract law, criminal theories, theories of tort and the question of whether judicial review is warranted. Legal philosophy is a branch of philosophy that studies the nature of law and the relationship of law to other normative systems, especially ethics and political philosophy. [1] [2] It asks questions such as “What is law?”, “What are the criteria for legal validity?” and “What is the relationship between law and morality?” Legal philosophy and jurisprudence are often used interchangeably, although jurisprudence sometimes includes forms of reasoning that fit into economics or sociology. [3] [4] In addition to analytical jurisprudence, philosophy of law also deals with normative legal theories. “Normative jurisprudence includes normative, evaluative and otherwise prescriptive questions about law. [9] For example: What is the purpose of the law? What moral or political theories form the basis of law? Three approaches have influenced contemporary moral and political philosophy, and these approaches are reflected in normative legal theories:Unlike experimental jurisprudence, which examines the content of our concepts of popular law using the methods of the social sciences,[6] analytical jurisprudence seeks to provide a general representation of the nature of law through the tools of conceptual analysis. The narrative is general in that it addresses the universal features of the law that apply at all times and in all places. [7] While jurists are interested in what law is about a particular topic in a particular jurisdiction, legal philosophers are interested in identifying the characteristics of law that are shared across cultures, times, and places. Taken together, these fundamental features of law provide the kind of universal definition that philosophers seek. The general approach allows philosophers to ask questions, for example, about what separates law from morality, politics or practical reason. [7] Researchers in this field often assume that the law has a unique set of characteristics that distinguish it from other phenomena, although not everyone shares this assumption.

The philosophy of law can be divided into analytical jurisprudence and normative jurisprudence. [5] Analytical jurisprudence seeks to define what is right and what is not by identifying the essential characteristics of the law. Normative jurisprudence examines both the non-legal norms that shape law and the legal norms that are generated by law and guide human action. [5] There are many other normative approaches to legal philosophy, including critical legal studies and libertarian legal theories. In 1930, after six months of psychoanalysis, Frank published Law and the Modern Mind, which challenged the “fundamental legal myth” that judges never make laws, but simply drew legal conclusions from clear, certain, and essentially immutable premises. Following psychologists such as Sigmund Freud and Jean Piaget, Frank suggested that judicial decisions are primarily motivated by the influence of psychological factors on the individual judge. [5] Like his legal hero, Justice Oliver Wendell Holmes Jr., Frank urged judges and jurists to openly acknowledge the gaps and uncertainties of the law and to view the law pragmatically as a tool for the betterment of humanity. [6] The book “fell like a bombshell on the legal and academic world,”[5] and quickly became a “jurisprudential bestseller” that was “both widely noticed and criticized.” In 1930, Frank moved to New York City, where he practiced until 1933 and in 1932 also worked as a research associate at Yale Law School, where he worked with Karl Llewellyn and competed with legal idealist Roscoe Pound.[7] In addition to the philosophical disagreements that arose from Frank`s realism and Pound`s idealism, Pound accused Frank of wrongly attributing quotes from Law and the Modern Mind to him and wrote to Llewellyn: Jerome New Frank (September 10, 1889 † – January 13, 1957) was an American philosopher and legal author.

He served as chairman of the Securities and Exchange Commission and as a judge of the United States Court of Appeals for the Second Circuit.[1] Frank had published many influential books, including Law and the Modern Mind (1930), which argued for “legal realism” and emphasized the psychological forces at work in legal matters. In 1965, his daughter Barbara Frank Kristein published A Man`s Reach: The Selected Writings of Judge Jerome Frank with a foreword by William O. Douglas and an introduction by Edmond Cahn of New York University School of Law. At least one legal commentator has written that “[t]he legal authors have been the subject of public controversy for as long as Jerome Frank.” [20] Frank`s legal department did not interfere with his scientific work. In 1942, he published If Men Were Angels, a defense of the ambitious New Deal agendas and government regulation in general, and expressed the views he developed during his time at the SEC. [2] In 1945, he published Fate and Freedom, which attacked the theoretical foundations of Marxism,[5] denying that societies followed strict progress and insisting that people were free to shape the development of their own society. Beginning in 1946, Frank also began teaching a regular course on legal fact-finding at Yale Law School, which “emphasized the role of human fallibility and bias in judicial proceedings.” In 1949, he published his most important work after Law and the Modern Mind, Courts on Trial, which highlights the uncertainties and fallibility of the trial.[2] In 1951, he moved from New York to New Haven, Connecticut, where he preferred to live closer to Yale. His last book, Not Guilty, was written with his daughter and published after her death.[5] The book dealt with specific cases of people who had been wrongly convicted of crimes. [5] In recent years, debates about the nature of the law have become increasingly fine-grained. An important debate exists within legal positivism about the separability of law and morality. Exclusive legal positivists claim that the legal validity of a norm never depends on its moral rectitude.

Inclusive legal positivists claim that moral considerations can determine the validity of a norm, but that they don`t have to. Positivism began as a inclusivist theory; but influential right-wing positivists, including Joseph Raz, John Gardner, and Leslie Green, later rejected the idea. A second important debate, often referred to as the “Hart-Dworkin debate”,[14] concerns the struggle between the two most dominant schools of the late 20th and early 21st centuries, legal interpretivism and legal positivism.