Legal Formalism vs. Legal Realism Analytical Essay by Nicky

Legal Formalism vs. Legal Realism
A comparative analysis of the concepts of legal formalism and legal realism.
# 128892 | 1,174 words | 2 sources | MLA | 2010 | US
Published on Aug 16, 2010 in Philosophy (Ethics) , Law (General) , Ethics (General)

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The paper looks at Aquinas' conception regarding natural law and morality and then analyzes the different approaches of legal formalism and legal realism to the application of the law. The paper explains how according to legal formalism, the role of the judges is to merely apply the laws and not to interpret them, while according to legal realism, the role of the judges is not to blindly apply the laws, but interpret them in the most appropriate manner in order to respect the law and protect human rights and liberties. The paper examines Lon Fuller's"Case of the Speluncean Explorers", and the perspectives of both legal formalism and realism on the questions it presents.

From the Paper:

"There has been a strong debate between the supporters of legal formalism and legal realism for years. The fact that the issue continues to remain an important topic for the public agenda suggests that, as the world changes, nothing becomes more simple, but rather the opposite.
"One can not discuss ethics without bringing into discussion Aquinas' conception regarding natural law. According to him, the fundamental principle that should be at the core of all human actions is represented by the natural law. Since the law is natural, that is, deriving from nature, this implies that all the humans understand it and must obey it, pursuing good and avoiding evil."

Sample of Sources Used:

  • Suber, Peter. The case of the Speluncean Explorers: Nine new opinions. Routeledge, 1998
  • "The natural law tradition in ethics". Stanford encyclopaedia of philosophy. 11March 2008. 17 November 2008

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