This trend toward allowing non-legal evidence leads us to Legal Realism. Legal Realism is the climax of the opposition to viewing law as an abstract concept. According to this theory, judges don't find law, they make it. (Friedrichs, p. 86-88) The primary proponent of this school of jurisprudence was Justice Oliver Wendell Holmes. Justice Holmes believed that after hearing a case, judges make a decision based on what they believe to be the correct answer. They THEN find the law to support their decision.
An interesting example of this theory from my own experience was as follows:
I was representing a young woman ("Susan") with a six year-old daughter in a custody case. When Susan was a teenager, she had been in a relationship with an extremely violent young man, whom I'll call Sam. Sam physically, emotionally and sexually abused her throughout the relationship. In fact, because she came from a broken home, she moved in with his family. There his mother and siblings also physically abused her and treated her as a domestic slave. She eventually was able to escape this brutal relationship. She met and fell in love with a kind, gentle man ("Charles.") During her courtship with Charles, Sam abducted Susan and brutally raped her. That was the last time she saw him for several years. Shortly after, she and Charles were married and a few months later, she had a baby. When the child was five, Charles and Susan divorced, but Charles maintained a strong relationship with the little girl.
The reason she came to me was because Sam and his mother found out about her daughter and believed that Sam was the father. They abducted her at gunpoint and forced her to go to a medical facility and have a paternity test performed. The result was that Sam was, in fact, the child's father. He was now suing for visitation with the little girl.
Because of Sam's and his family's extreme violence, Susan was asking the court not to grant any visitation to him.
Though Sam was the child's father, I felt compelled to make the strongest case possible to the court in order to protect this child from this extremely violent individual. I was concerned that this would be unsuccessful. I did some legal research and found an antiquated law called the Presumption of Paternity. This presumption held that if a child is born during marriage, it is a legal presumption that the husband is the father. This is true no matter when the marriage takes place- even if the wedding occurs during the ninth month of pregnancy! There are only two ways to rebut the presumption once it is raised. The putative father, Sam, would have to prove that Charles and Susan had no possibility of sexual contact during the time when the child was conceived or that Charles was incapable of reproducing. The reason for this law was to preserve the sanctity of families and render children legitimate. Arguably, the latter, and maybe both of these issues are considered to be less important in today's society. However, the law was still on the books, I argued it in court and the judge ruled in my client's favor. The paternity test results were ruled to be inadmissible and Sam's claim was dismissed.
Because this family was no longer intact, that is Susan and Charles were no longer married, the reason for the presumption really didn't apply to this case. Because the judge was aware of how dangerous Sam was, he wanted to rule to protect the child and there was law available to enable him to do that
This is, I think, a positive application of legal realism, but of course it worked to the advantage of my client and what I thought was morally right....
Could there be negative applications given that reasonable people often differ regarding what is morally right?
The next group of theorists would argue just this.