Last time, we looked at how legal positivism in its reformist zeal declared that the only source of the law is the state, and how this ended up centralizing power like never before with an ongoing tendency to authoritarianism. The Legal Realists saw the real power, not in the legislature, but in the judges who interpreted the law. One of the first and greatest of the legal realists was OIiver Wendell Holmes, Jr. He was an associate US Supreme Court justice until he was 90 years old. Holmes did not believe the law was rational or logical. He rejected natural law theory as fairy tales. To him, law existed only in action, in the courts, and had to be studied as to how it actually worked without sentimentality. Legal Realism arises out of American pragmatism after WWI, a cold soulless philosophy Williams James called the "Bitch Goddess of Success". What Holmes should have had the wisdom to foresee was that by kicking open the door to law as a technical skill only, detached from morality, he set the stage for Critical Legal Studies, closely tied to Critical Race theory, and to progressive activist courts which see law as merely about power and politics. Legal Realism can be seen everywhere today, in Trump being struck from the ballot in Colorado, to the conviction of the innocent for the crime of having the wrong skin colour or political point of view or not wanting to fly a rainbow flag. Holmes was also famous for his views on Eugenics, reflected in the case law, a pragmatism we see today in places like Canada where 50,000 have been Euthanized since 2000. We are a long way from Natural law and the pursuit of the good, the true, and the just.
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Lex cast Episode 1: https://www.youtube.com/watch?v=DnGzltWEzlQ&t=114s
Lex Cast Episode 2: https://www.youtube.com/watch?v=DGERYQsIyOM&t=126s
Lex Cast Episode 3: https://www.youtube.com/watch?v=Xm5Z304pNaY&t=394s
Lex Cast Episode 4: https://www.youtube.com/watch?v=5DL9xSfMtaw&t=667s
Lex Cast Episode 5: https://www.youtube.com/watch?v=jZrSDN8ctrI&t=344s
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