Teorie „právního realismu“ (Kritická studie)

The treatise is a critical analysis of the contemporary legal doctrine which, especially in the United States of America, was and is of considerable importance. The introductory part is devoted to the analysis of the principal specific peculiarities of the Anglo-American sphere of law embodying a great part of the legal systems of the capitalist countries in the world. Common to them are the main principles derived from the English Common Law, in particular the principle of precedent. To the application of precedent the principle applies that the court is bound by the decision of a superior court (authoritative precedents). Each valid decision is a weighty argument deserving serious attention in taking decisions (persuasive precedents). The boundary between the binding and not binding in an individual precedent is, however, debatable to a certain extent, its vagueness is one of the principal starting arguments of the Anglo-American jurisprudence in the period of the general crisis of capitalism. The principle of precedent itself places the judge in an important position both in the making of the bourgeois law and, in particular, in the process of its practical application. In the period of the general crisis of capitalism the work of the courts became one of the methods of adapting the law to the demands and requirements of the controversial motion of the contemporary bourgeois social and economic formation and to the subjective interests and requirements of the various groups of the bourgeoisie respectively. This fact is documented by the analysis of some of the aspects of the position of courts and judges in the USA. In the second chapter the author establishes that in such conditions the contemporary bourgeois Anglo-American legal doctrines endeavouring to justify theoretically the procedure of the courts of justice and of the government authorities are of considerable practical and political significance. The contemporary bourgeois legal theory sprouts from the conditions of the recent bourgeois society, is conditioned by the aggregate of processes in the political structure, machinery of state, law and its application that lead into the crisis of bourgeois legality. Legal realism reflects inadequately and generalises some aspects of the process justifying them theoretically as being seemingly the only possible ones complying with the evolution of society. This does not mean to say, of course, that the emergence of legal realism is not affected by gnoseological roots and that consequently there is no objectively existing problem of the nature of rule of law and dialectic general relation in the rule of law and unique in the individual decision of government authority. It is just this problem the theory of legal realism sees clearly and, in addition, documents generously its existence by an analysis of the USA legal practice. It is even possible to consider the very position of these gnoseological problems as a certain contribution of legal realism. But the theoretical answer of legal realism is scientifically quite incorrect and methodologically untenable. Realism makes a single isolated aspect of the unique to general relation in legal ruling absolute arriving thus methodologically and gnoseologically to untenable, absurd claims and conclusions. In addition to gnoseological roots and also causes attaching to relatively autonomous links with the preceding development of the Anglo-American legal thinking, the emergence of legal realism has also a cause present immediately in the evolution and contradictions of the bourgeois society and as part of the bourgeois ideology affects to an extent the functioning of the political mechanism of the bourgeois society. “Legal realism” as well as “legal scepticism” are most radical conceptions aiming after all at weakening of the classic principles of bourgeois legality. The assumption is voiced that legal realism emerges and develops in connection with the acute political problems of the great economic and social crisis in the USA in the early thirties. The nature of legal realism can be fully explained only by a summary of a number of social, historical and gnoseological factors in their interrelation. The social importance of the realistic theory of the process of law making and application consists in that it theoretically disclaims the importance of the rules оf law in force declaring as law that which the courts are doing and in future shall be doing for the preservation of the capitalist system and which they will deem fit for attempts to foil difficulties and approaching clashes. Realism comes to claim the nonexistence of some of the principles of bourgeois legality and to recognize as a matter of principle the discretion of judges as a gnoseologically and noetically given substance of the process in general. The nature of the bourgeois legal theory leads to the conclusion that it can act as a doctrine outwardly independent of class conditions and interests dealing essentially with legal methodological and gnoseological problems. Legal realism possesses, of course, definite social class aspects and a class conditioned function. In the theoretical generalisation a conception, which is the direct consequence of the influence of the contemporary bourgeois economic and political system exerted on the legal superstructure, was asserted, in particular retreat from the principle of bourgeois legality in the direction of flexible functioning of the courts and the machinery of the bourgeois state in general. Affected is, of course, in particular the sphere of democratic rights and freedoms as well as that of legal safeguards, against which are directed the attempts of the antidemocratic tendencies of the monopolistic bourgeoisie. The actual social significance of legal realism, concealed essentially by the limits of the methodological interpretations, consists in overriding of the “rule of law” principles and their substitution by a freer status of judges, which escapes thus public democratic control of law making and of its application, and in which the working masses are interested and for which they strive. Thus the realistic theory of application is an attempt by the bourgeois ideologists in the period of the general crisis of capitalism to justify the considerable relaxation of judicial bounds. It provides a specific form of assertion of the interests of the bourgeois groups controlling the authorities of the imperialistic state. Methodological approaches of legal realism permit and protect more flexible manoeuvring by exponents of the bourgeoisie (whether more liberal or more reactionary) in the process of the work of the courts and government authorities and thereby weakening of the importance of the legislative bodies. In the third chapter the author analyses and subjects to criticism the conception of the relation of the law and of the rule of law making to the theory of legal realism. It is symptomatic for legal realism and the sociological tendencies attaching to it that they conceive society as undifferentiated in classes, admitting the existence of various groups in society which, however, is not divided in classes so as the marxist conception of social classes has scientifically sustained. Legal realists bypass and leave aside the fundamental question the interests of which classes this or that rule of law serves and which class interests are the fundamental determining moment in the choice of possible variants in the process of law making and of its application. By this is the scientific value of the partial knowledge and conclusions to which they arrive fundamentally marked and affected in its very basis and deprived of its most important aspects. Theoretical investigation is thus a priori methodologically deprived of any possibility to contribute to the discovery of essential connections of the social functionality of the law. In the fourth chapter the author documents on extensive sources the opinions of realism on the process of application of the law and making of decisions and subjects them to marxist criticism. The author documents and analyses the views of the various representatives of realism of the process of application of the rule of law and points out the different shades of their points of view. The decisive majority of legal realism followers agrees that the decision in an actual case is not and can not be bound nor determined by a rule of law, but that the courts and other government authorities take decisions essentially or at least to a decisive extent freely. The rule of law serves formal justification of the decision and may possibly be of significance as one of the factors affecting the judge’s decision. The author subjects then in this part the realistic conception of the application of law to criticism. In the fifth chapter the author illustrates that the practical importance of the legal realism theory is particularly great for the bourgeoisie in the period of the political crisis of society. In a period of relatively relaxed political difficulties of the monopolistic bourgeoisie its practical significance recedes into the background as was shown by the actual development in the USA. Accordingly the theses proclaiming weakening of the bourgeois legality were admitted in the course of the forties, in a period of relative economic and political stabilisation of the USA, by the majority of the legal realists with increasing restraint and later the most aggressive formulations were slowly abandoned by them. Thus the transition of a part of the legal realists from doubts about the possibilities of realisation of legality to modified attitudes and to a rapprochement of opinion with other contemporary American legal theories is contingent on social causes. Legal realism never came to be a generally accepted or prevailing theory, its conception of rule of law making and the application thereof, however, affected with its apprehension the entire contemporary American practice and theory. The group of legal realists represented in particular by J. Frank abandoned in the period of retreat of realism some of its former views, but later developed by virtue of modified argument profound criticism of some principles of the bourgeois legality; so the theory of legal scepticism came into being. The last part of the treatise is devoted to an analysis of this variant of realism. The deductions of scepticism proceed from the theory of disclaimer of any possibility to establish objectively truthfully the facts of a matter at issue. According to the conclusions of this theory the court in the USA does not at all, nor is it capable as a matter of principle to establish the objective truth, but sustains its decision on “guess”, an extremely subjective conjecture of the facts. The facts established by the court appear to legal scepticism as not meeting the objective fact, but that they even need not and respectively can not as a matter of principle issue from it. Thus legal scepticism proceeds from fundamental rejection of the establishment of objective reality in court proceedings. Between the objective fact and that which the court regards as the established facts of the case is, according to the theory, a difference, differentiated by three degrees: a) objective reality; b) “subjective facts” — the subjective view of the court of the facts of the case that, it is said, need not as a matter of principle meet the objective reality; c) “reported facts” and those which the court announces as the established facts of the case which, it is said, need not as matter of principle even comply with the “subjective facts”. “Subjective facts”, therefore, need not as a matter of principle meet the objective reality, relying merely on the opinion of the judge. But this is not enough; even between such subjective distortion of the fact and the “reported facts”, from which the court proceeds in taking decision, may be an abysmal difference. Objective reality is thus being lost behind the prism of “subjective facts” and “reported facts” and it is not excluded that the court might operate with these differences. Deliberate work of a judge, wishing in advance to take a definite decision, his bias even is for scepticism a possible or regular part of the process of application. Scepticism, accordingly, arrives theoretically to the conclusion that in the very substance of the process of application, in a substance, that is necessary and impossible to exclude, lies the possibility of the judge to come to the desirable decision. Views of this variant of realism were, however, held but singularly. This conception provides theoretically extensive possibilities to achieve results desirable for the ruling monopolistic bourgeoisie, under ostensible observation of bourgeois legality. In conclusion the author brings evidence that legal realism has at present its effect and considerable significance; its starting theses on the nature of the process of application are the basis and methodological fighting equipment of the approach to the investigation of legal phenomena of the latest variants of sociological schools in the USA. Behaviourist jurisprudence, one of the most lively contemporary theoretical tendencies in the study of law making and its application, is but a modernised variant of legal realism, supplemented by more elaborate methods. Also the development of cybernetics in the investigation of the law relies partly in the examination of court decisions on the starting positions of legal realism. It is impossible to disregard that legal realism could be developed in various respects; in a sense some of its aspects remained open theory. Legal realism was not and is not a prevailing trend, but it was and still is a significant part of the Anglo-American bourgeois legal theory and ideology.