New legal realism

Gruzdev Vladimir Sergeevich Doctor of Law Chairman of the Board, All-Russian Non-Governmental Organization “Association of Lawyers of Russia”; Senior Scientific Associate, tghe department of Philosophy, History, and Theory of State and Law, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, g. Moscow, ul. Znamenka, 10 vsgruzdev@yandex.ru Other publications by this author

Methods, means and ways of mastering legal issues are not something static that remains out of time. This does not mean that the fundamental problems associated with attempts and approaches to mastering and clarifying the essence of law become simpler and can be reduced to an instrumental level, to a set of everyday tasks for the use of law, as, for example, the English jurist P. S. Atiya ^[3] suggests. It is obvious that both fundamental and applied questions of law remain one of the most complex and relevant areas of social problems in a broad sense, inevitably affecting a wide range of related areas of political, economic, cultural, ethical, socio-practical and other nature ^[2]. Legal theory, trying more or less successfully to reflect and analyze the problems of law, must be in search of new or refined approaches, ways and means of cognition and interpretation of its object. Bearing in mind the role and significance of law in the history of mankind and its potential for ensuring sustainable and stable social development, of course, over time, as the civilizational and other conditions of existence of societies and States are updated, new challenges and requirements, tasks and factors, needs and goals appear, which necessitate a deeper understanding of traditional problems of law, its essence and social functions, rethinking the ways of interpretation and knowledge of legal phenomena, reconstruction, clarification and clarification of legal doctrines, theories and philosophy of law. At the same time, emerging theoretical constructs and trends should be subjected to a careful problem-critical analysis, which allows us to consider them primarily in terms of their successive and innovative moments, repetitive and promising approaches. Otherwise, there may be a danger that under the guise of a new name, classical concepts and theories are simply reproduced, as well as the danger of their distortion and falsification. It should also be borne in mind that constructive solutions and approaches can significantly enrich, clarify and activate legal theory and its social and practical significance.

In the latest legal literature of the last decades, a large number of scientists, moreover of different profiles (lawyers, anthropologists, sociologists and philosophers, mainly from English-speaking countries) have identified and are developing such a direction of legal theory and philosophy of law as "new legal realism" ^{[15, 16]}. Representatives of this direction take as a starting point 1997, when they first set the goal of developing the foundations of the "new legal realism" ^{[5, p. 251]}. However, there has been a clear increase in research and publication of key results over the past decade.

E. Merz writes about the "new legal realism"as a project aimed at developing strict, truly interdisciplinary approaches to the empirical study of law ^[11]. This project was initiated by the American bar Foundation and The University of Wisconsin Institute for legal research (USA). According to the authors and developers of this project, "the new legal realism" acts as an organizational paradigm within the scientific community to transform and integrate various scientific disciplines and methodologies. The new legal realism systematically pays attention to this process of transformation and integration. Just like the old legal realists, "writes E. Merz," we strive to use the best achievements of modern social and legal Sciences to solve important political issues of our time, but with the benefit of several generations of new knowledge ^[11]. However, this only articulates a statement about the "development of strict empirical methods of legal research". The authors see the main methodological feature of this project as combining quantitative and qualitative research methods. Explaining this point, representatives of the "new legal realism" emphasize that there are no universal methods of social science, and therefore a separate method of social science has its advantages and disadvantages. For example, quantitative methods allow you to generalize the results obtained, but at the cost of detailed contextual analysis. The most quality-oriented methods, such as participant observation, provide more complete information about the real social contexts in which the law operates ^[11].

The focus of attention of the new legal realists is not so much law as the behavior of judges, and by law, the supporters of this movement are ready to understand anything related to the behavior of judges (judicial behavior), and not just their decisions. Moreover, it is the behavior of judges that is declared the object of research. Then there is a formula such as the "standard model of judicial behavior", in relation to which the idea of deviant behavior is formed. Representatives of the new trend write about the possibility of adjustments. This adjustment should facilitate political compromise in legal decision - making between supporters of different political parties and beliefs. The concept of "standard model of judicial behavior" is only a variation on the theme of "normal judge", which was actively worked with by supporters of the "free law" movement. Therefore, this idea is not new at all, and with an obviously narrow regional understanding of the history of legal thought, the proponents of the "new legal realism" present well-known ideas and constructs as their " new " program theses. But in contrast to the "free law" movement, the program of the "new legal realism" standard model of judge behavior and the Central problem of political affilation of judges are mainly considered not so much as a problem of law-making, but as a task to develop means of correcting politically consistent behavior of judges, which is clearly beyond the scope of legal research. the New current tries to find a compromise between jurisprudence and political science, since the task is to identify the influence of politics, primarily political beliefs, political processes, etc., on the adoption of judicial decisions. The majority of representatives of this direction focuses on the fact that in the field of political science there is a direction "law and politics", which is engaged in the development of the topic of the influence of ideology on judicial decisions ^{[12, 13]}. The current direction of political science research in the field of law is the study of the institutional context of judicial decision-making, establishing and testing models of strategic behavior ^[7]. From this « new realists » deduce the need for a closer convergence of jurisprudence and political science, which is considered as a necessary condition for the formation of a new organizational paradigm«a new legal realism ».

It should be borne in mind that for supporters of the "new legal realism", the concept of reality, as a rule, does not have any single essence. In fact, we are not talking about social reality as a set of interests, needs and goals, human interactions, but about such an understanding when reality is considered as a definition of an infinite multiplicity of phenomena, i.e. there is no single reality of law, but the reality of each individual legal act is recognized, which may be completely indifferent to the reality of law. In other words, relativism in law reaches its extreme expression. However, in this regard, the ideas of the proponents of the "new legal realism" to link law with politics become clearer and clearer, since only in this way there is a possibility of some restriction of relativism, but only for the sake of political interests. In the paradigm of the new legal realism, the law is different for everyone, but in an effort to overcome the consequences of relativism and solve the problem of legal uncertainty, the new realists focus on the problem of the possibility and reliability of predicting the judge's behavior. If you attract enough empirical data, then based on their analysis, you can confidently predict the behavior of judges, and accordingly, if what the judges do is the right, then the traditional problem of the movement of "free law", legal realism and pragmatism - legal certainty-can be solved.

For example, I. Augsberg generally writes about a certain special reality of international law, which, accordingly, does not have its own essence, but is, according to the author's idea, a constructed object of knowledge, on the one hand, and on the other hand, in the paradigm of the new legal realism, realities are infinite and unrelated; the moment of the accidental and irrational;each has its own reality. "Current efforts to develop a "realistic" concept of international law, "writes I. Augsberg," must take into account that there is not only one reality. It is not enough to admit that reality can be perceived from different sides. Rather, a realistic view of modern society must recognize that we can no longer speak of "the world" or "reality" as a distinct entity. Perspectives matter; they construct their own distinct objects of knowledge. "New legal realism" is consciously new, legal and realistic only insofar as it is seen as an understanding of how (international) law creates its own realities ^{[4, p. 458]}.

"a Distinctive feature of the new legal realism," the representatives of this direction write, " is a thorough study of the relevant cases in order to understand how the judge's personality, understood in various ways, affects legal results and how legal institutions restrain or release these influences. These requests are an attempt to test (previous) realistic claims about the ambiguity of law and implement a call for an empirical study of how different judges decide cases in response to a specific "stimulus" in each case ^{[14, p. 835]}.

The representatives of "new realism" offer three parameters as evaluation criteria: political affiliation, demographics, and previous professional experience. "the New legal realism also seeks to cover the institutional context of judicial conduct" ^{[14, p. 836]}.

Analyzing the program of the main theses of the "new legal realism", it should be noted that its representatives, who take confidently the positions of pragmatism and relativism, practically do not write anything about the expected results, except for the often repeated thesis about the great future of empirical research of law, which in the case of the implementation of the "new legal realism" project, first, must be transformed into a single interdisciplinary model of socio-legal knowledge that unites politics, law and Economics on a principled methodological basis according to its developers, this " new " version of understanding law is already a serious competition for those who adhere to traditional approaches to law, which even threatens to lose the latter's authority in society and the professional environment. The problem of in-depth empirical research of law (and not just the behavior of judges) is undoubtedly an important methodological resource for improving our understanding of it, clarifying existing approaches to its understanding. But empirical research by itself, i.e. without a specific ideological and theoretical content of their goals and objectives, is presented as an arbitrary set of random practices. In this regard, Kant's objections to the purely empirical doctrine of law are perfectly valid. Answering the question "what is law?», he wrote in particular: «What follows by law (quid sit iuris), i.e., say or say the laws in this or that place at that or another time, he [the jurist] can still indicate; but whether what they require is right, and what is the universal criterion by which it is generally possible to distinguish right and wrong (iustum et inustum) - this remains a mystery to him, if he does not at least for a time leave these empirical principles and does not look for the source of these judgments in one only reason (even if the laws mentioned served as a good guide for this purpose), to establish the basis for possible positive legislation. The purely empirical doctrine of law is the head (like the wooden head in Phaedrus ' fable), which may be beautiful, but, alas, brainless » (italics are mine. – V. G.) ^{[1, p. 253]}. However, the problem of the concept of law does not interest new realists, unlike classic American legal realists. For the latter, it was resolved in different ways and largely under the influence of criticism of formalism and conceptualism in legal science. O. Holmes in his report " Law " wrote about the problem of justice in law, partly reproducing the Aristotelian formula of justice (giving and distributing) ^[8]. The prognostic theory of law of O. Holmes focused on what judges actually do in the field of law only to overcome the inertia of judicial practice, since the law was deduced by the court only from existing precedents, denying protection in the event that there is no suitable precedent. Therefore, the main task was to draw the attention of jurisprudence to the problem of real needs and interests as a source of law ^[9]. Hence the basic attitude of legal realism. R. pound formulated the functional concept of law as a means of social control. When comparing the positions of «old » and«new » realists, the theoretical views of the former look much more convincing and justified. "New realists" clearly lack a theoretical understanding of legal issues, even if they adhere to a strictly behavioral approach.

Many of the representatives of this direction believe that the program of "new legal realism" is undergoing a paradigm shift towards a new understanding of the reality of law, and in their view it is such that it only allows us to limit ourselves to a more definitely predictable compromise when making judicial decisions. Compromise involves taking into account factors of external influence: political ideology, political beliefs, resources of economic analysis of law, socio-demographic characteristics of the judge's personality, his professional experience and some procedural characteristics of the dispute and its passage through the instances. The only presumed common point in this understanding of law is the "standard model of judicial conduct". Some of the representatives of this direction refer to the argument of R. Dworkin about the "integrity" of the law, which determines the "embedding"and " justification"of new decisions ^[6]. And in this regard, the concept of the "standard model" allows you to focus on a certain generality of tasks – search for standard and deviant behavior, which in any case, according to the design of«new realists », remains the right. In the concept of the "standard model", one can try to see an attempt to overcome irrationality in the understanding of law in pragmatism, realism and relativism. And this hint is contained in the works of some of the supporters of the new direction. But in reality, the main goal of the "new realists" is not to clarify the concept of law, but only to use the methods of other Sciences to try to make the forecast of the judge's behavior more accurate. And as the main method they articulate, they call a certain formula for the analysis of large amounts of data and statistics, which remains only an unsupported hypothesis, since their proposed research on specific topics of an applied nature is based on a fairly standard set of sources and materials ^{[15, 16]}. So far, only the pathos of the tasks and theoretical certainty remain largely due to selective adherence to the heritage and traditions of classic American realists.

Opening a large two-volume edition of the works of «new realists», M. McCann writes: « to a large extent, representatives of the new legal realism follow the original realists in an effort to integrate social science with the study and study of law in action. But representatives of the new legal realism do this with a far-sighted understanding of the fundamental processes of development in the nature of both modern socio-legal research and the legal scientific community ^{[10, p. XV]}.

Denying the significance of traditional methods of interpreting law, the new realists write: "for those who believe in the rule of law and in the discipline imposed by the legal system, the results of the new legal realism should not be completely discouraging. … there is much more room For conceptual and theoretical analysis » ^{[14, p. 11]}. Such conclusions leave an extremely contradictory impression and are a generalization of very arbitrary characteristics of the history and current state of legal thought.

First, the changes taking place in the modern world do not mean that legal science suddenly has to give up all that wealth of ideas and ideas on the basis of which it is generally possible to reconstruct the history of legal thought and to determine its current state with any accuracy. New perspectives and approaches are only a certain refinement of the ideas of their predecessors. After all, «new legal realists», although they write about some almost paradigmatic shift in consciousness (in the form of a contrast between traditional jurisprudence and new-realistic jurisprudence), nevertheless claim their rights only in the context of identifying themselves as « a new» version of realism, explaining that the essence of their program is derived from some of the Central theses of classic American realists. For such claims about profound changes in the field of legal understanding, we definitely need more convincing and well-founded arguments, and not just a reference to the only implied premise of conducting research based on "large data sets".

Secondly, a narrow regional understanding of some aspects of the essence of law and ways to specify it should not be presented as a comprehensive concept of a new approach to understanding the law. A careful study of the main statements of the representatives of the "new legal realism" can easily be seen the desire to pass off certain moments of the typical common law tradition of legal practice as a new legal theory. It should be noted that in the works of representatives of the so-called classical legal realism, the connection with European lawyers and legal philosophers was not severed. In addition, the key thesis of the "new realists" about the connection of jurisprudence, politics, sociology and Economics is nothing new for the sociological direction in legal science. Even in the XIX century. sociology, including the sociology of law, claimed the role of a universal science of society, covering all other social Sciences, including law.

Third, the weakest link of the new trend is the lack of discussion about the concept of law. At the same time, the attempt to use a universal template in the form of a "standard model of judge behavior" returns the theoretical part of the program of "new realists" to the ideas of the supporters of the "free law" movement, which were actively discussed in the early twentieth century. (for example, the works of E. Ehrlich, K. Schmitt, V. Eggenschwiler, etc.). the Program of the "new realists" does not appear as a purely empirical doctrine of law, but rather is proclaimed as such. In this connection, the objections to the purely empirical doctrine of law are not removed. Representatives of this direction, in fact, do not manage to fully follow their basic theoretical and methodological orientation, since they are forced to develop, although in fragments, such concepts as«incentives »,«institutional environment »,«political ideology »,«behavior strategy »,«behavior model » as theoretical problems of the doctrine of law. The category of " due "is essentially covered by the " standard model of judge behavior", which, according to the new realists, can be more definitely predicted and adjusted in the direction of obtaining the expected results. This clearly shows the position of the German positivists of the sociological and psychological sense, who in the second half of the XIX century articulated the idea that the image of " due "is formed from the observation of "existing" by analogy with the natural Sciences.