Understanding the essence of judicial activity in the framework of theories of legal formalism and realism

the author examines two key judicial activity theories - legal realism and legal formalism. The author draws attention to the fact that the main differences between these theories are based on assessing the degree of importance of legal norms in decision’s making. It is noted that in the framework of the tradition of formalism, judicial activity is considered as a strictly regulated system of law enforcement. The author also describes more radical versions of formalism, in which the judge is seen as the operator of a gigantic syllogism machine. Contrasting these views with the provisions of the legal realism theory, the author notes that they come to the fact that legal norms do not determine the outcome of dealing with cases. The author emphasizes that apprehension of legal realism was biased in almost everywhere except the United States. In particular, the continental legal tradition considers legal realism as a practice-oriented direction of legal thought, which is the opposite of more scientifically formulated theories. The author contemplates that legal realism did not deny the importance of regulatory requirements for the purpose of decisions making. However, most of these norms are “informal” regulators. Also, the author concludes that in the continental legal tradition, realism by its nature was not an anti-scientific theory. In fact, this theory appeared as the first truly scientific theory of judgment, or at least its prototype.