Melnyk M. School of Legal Realism and the Possibility of Using its Achievements in National Jurisprudence

The thesis (in the form of a dissertation) discloses the analysis of the preconditions of the emergence and development of the American and Scandinavian movements of the School of Legal Realism. The origins of ideas and conceptual bases of the school founders are analyzed in the research. The development of civil society, the spiritual situation, and socio-political events that took place in the late 19th – early 20th century led to new phenomena, needs and demands of a society, which have not been reflected in the previously established concepts of legal thinking. Fundamental ideas of legal positivism have not satisfied anymore the demands of a society that reflects on the refusal to recognize the central role of the state, which had been considered to be endowed with the exclusive power of lawmaking that narrowed down to the rulemaking. The positions of philosophers and lawyers come together to the idea that a person stands in the center of legal reality, his/her needs, interests that cannot be ignored. In this period, the school of legal realism begins to develop. There are two movements of the School in history: Scandinavian and American. There were other conceptual differences between these two movements, except for the geographical. While the founders of American legal realism were legal practitioners who were trying to establish ways to counteract mechanical jurisprudence in the legal proceedings, the Scandinavian movement was developed by philosophers who took steps to comprehend the essence of legal reality. The thesis focuses on the fundamentals of both movements by analyzing the core ideas of the school’s founders. The analysis of the history and the founders of American and Scandinavian legal realism’ fundamental ideas demonstrates that the school made significant impact on the development of legal thought both in continental and Anglo-Saxon legal systems. The determined core accents and arguments of legal realists of the American movement comprise the essentiality to bring legal theory and practice closer to social reality, which constitutes the living part of law; to analyze the interdisciplinary relations in jurisprudence and the influence of irrational elements on the process of legal perception, especially when judges decide cases. Among the researched fundamental ideas of the Scandinavian movement of legal realism, the following are highlighted: determination of the human psychology as the main source of law; comprehension of jurisprudence as the empirical science; denial of the existence of any manifestations of metaphysical phenomena in jurisprudence. The theoretical generalization of basic ideas of the school of legal realism’ founders is carried out through the thesis. The common and distinguishing features of the American and Scandinavian movement are derived.