In the case of the Office of Fair Trading v Abbey National1 Lord Phillips stated “I think personally I would have been quite in favour of the OFT looking into bank charges, if I had complete freedom to decide.... but the statute said it was not within their terms of reference”2
Lord Phillips makes it very clear that decisions in cases are tied to legal rules, however what is the role of legal rules in judicial decision making? There are different schools of thought with regards to that question. This essay will explore those differences. Firstly we shall consider the perspectives of the formalists, what was their view of applying rules. Continuing onto the American Legal Realists ' views, assumptions and looking at their two main…show more content… Although initially this may seem a simple and straight forward process, it may be more restrictive and ambiguous than would first appear. With formalism we assume that the law is clear and the selection of the appropriate rule can fit the facts. When judges apply the rules in complex situations there may not always be consistency. The outcome may not always seem to make sense or even be just, or we may find the outcome can differ greatly if we incorrectly apply the wrong rule, these rules needed to be applied with strict adherence which limited flexibility.
In the early 20th century a group of American scholars, lawyers and judges considered these issues and put forward a theory now known as American Realism. They attacked the formalists claims of their decision making process and highlighted that was not how the courts operated during adjudication. Roscoe Pound stated “The notion that most judicial decisions should or could be deduced from general concepts or general rules, with no attention to real-world conditions or consequences, critics labelled “mechanical jurisprudence.”3, another realist Oliver Wendell Homes Jr. concurred “General propositions do not decide concrete cases.”4 Realism is not easily defined, however, the key concept of the realists was that they wanted to look at the law in action in the real world. How it actually worked in real life, what do judges actually consider when making a decision, Holmes clarified the