American Realism

[Besides the American Realist movement, a simultaneous wave of realism

also developed in Sweden which was pioneered by Prof. Hagerstorm,
Olivecrona and other Scandinavian jurists. There was however, some
difference between American Realism and Scandinavian realism. We will
only discuss American Realism.]

1. Introduction:-
The realist movement in United States represents the latest branch
of sociological jurisprudence which concentrates on decision of law
courts. The realists contend that law has emanated from judges; therefore
law is what courts do and not what they say. For them, judges are the law
makers. The contention of the realists is that judicial decisions are not
based on abstract formal law but the human aspect of the judge and the
lawyer also has an impact on court’s decisions.

1.1. Left Wing of the Functional School:-

Some jurists refuse to accept realism as a separate school of

jurisprudence and hold that at the best it may be called a branch of
sociological jurisprudence. However, realist school differs from
sociological school as unlike the sociological school, they are not much
concerned about the ends of law but their main attention is on a scientific
observation of law and its actual functioning. It is for this reason that
some authorities have called Realist school as the ‘left wing of the
functional school’.

2. Origin of the Realist Movement and Founders of the Realist

movement in America:-

The realist movement in United States owes its origin to

pragmatic approach to law in early decades of 20th century. The
progressive legal thinkers denied to accept law as an abstract conception
and tried to base it on actual facts and actions. This inspired jurists to
 concentrate more on courts to know the actual working of law and
determine those factors which influence court’s decisions. According to
Friedman, the founders of the Realist movement in America were Oliver
Windell Holmes, Gray, Jerome Frank who emphasised on functional and
realistic study of law not as contained in the statute or enactment but as
interpreted and laid down by the courts in their judicial decisions.

3. Meaning of Realism:-

It was around 1930’s that some American jurists notably, Holmes,

Cardozo and Gray raised their voice against legal conceptualism and stressed
on the study of law as it actually operates and functions. They were called
realists and their approach has been named as Realist School of
Jurisprudence.

Roscoe Pound has defined the realism as “fidelity to nature, accurate

recording of things as they are, as contrasted with things as they are
imagined to be, or wished to be or as one feels they ought to be”.

4. Certainty of law is a Myth:-

Realists uphold only judge made law as genuine law and they don’t
give any importance to laws enacted by legislatures. Realists believe that
‘certainty of law is a myth’. Elaborating the point further Jerome Frank
has stated “law is what the court has decided in respect of any particular
set of facts, prior to such a decision, the opinion of lawyers is only a
guess as to what the court will decide and this can’t be treated as laws
unless the court so decides by its judicial pronouncements”.
5. Basic Features of Realist School:-

The main features or the realist school are as follows:-

(i) Combination of Analytical and Sociological approaches:-

The American Realist movement is a
combination of the analytical positivist and sociological approaches. It
is positivist in the sense that it regards law as it is and not as it ought
to be. It is sociological in the sense that it treats law as the product of
sociological factors.

(ii) No Certainty about Law:-

Realists believe that there can be no certainty about law as
its predictability depends upon the set of facts which are before the
court for decision.

(iii) Against the Conceptual approach to law:-

Realists don’t support formal, logical, and
conceptual approach to law because the court while deciding a case
reaches its decision on ‘emotive’ rather than ‘logical’ grounds.

(iv) In favour of psychological approach to law:-

Realists lay greater stress on psychological
approach to the proper understanding of law as it is concerned with
human behaviour and convictions of the lawyers and judges.

(v) Opposed to the value of legal terminology:-

Realists are opposed to the value of legal
terminology, for they consider it as tacit method of suppressing
uncertainty of law.

(vi) Evaluate the law in terms of its effects:-

Realist school prefers to evaluate the law in terms of
its effects.
 Karl Llewellyn (1893-1962)
Karl Llewellyn was a professor of law at the Columbia University. He
confessed that there is nothing like Realist school, instead it is a particular
approach of a group of thinkers belonging to the sociological jurisprudence. He
defined realism as a movement in thought and work about law.

Law as Means to social end:-

He considered law as means to a social end and suggested

evaluation of law in terms of its actual effects without giving much importance
to a formal conceptual rules. He described law as ‘what officials do about
disputes’ and insisted that law should be evaluated in terms of its effects. He
further said that it is a fact that society changes faster than the law and hence it
is absolutely necessary to examine how law meets contemporary social
problems.

Need to shift emphasis from precedent to the study of case-law:-

According to Karl Llewellyn, the traditional outlook

that the rules decide cases, therefore they should be looked into the law books
has become outdated and now the main point of attention should be the
behaviour and thinking of the deciding Judges or the Court. Hence, there is need
to shift the emphasis from precedent to the study of case-law.

Law-Jobs Theory:-

Karl Llewellyn described the basic functions of law as ‘law-jobs’. He said

that law is an institution which is necessary in the society and it has jobs to do
within a society. These are:-
 (a) The disposition of the trouble case: a wrong, a grievance or a dispute.
(b) The preventive channelling of conduct and expectation so as to avoid
trouble.
(c) The allocation of authority and the arrangement of procedures which
mark action as being authoritative.
(d) To develop a ‘juristic method’ approach so that the people are kept doing
their law jobs until they became a source of revelation of new possibility
and achievement.

Jerome Frank (1889-1957)

Jerome Frank was initially a practising lawyer. He served in the Law
Department of the Government for about a decade. In 1941, he was appointed
as a Judge in the United States Circuit Court. He was also a visiting professor of
Law in Yale Law School.

Certainty of Law is a Legal Myth:-

In 1930, his classic work titled “Law and the Modern Mind” was
published. He argued that law is uncertain or certainty of law is a legal myth.
He exploded the myth that law is continuous, uniform, certain and invariable.
He emphasised that law is not merely a collection of abstract rules and that legal
uncertainty is inherent in it. Therefore, mere technical legal analysis is not
enough for understanding as to how law works. For example, facts in a legal
case have to be established by witnesses who may or may not be telling the
truth and it is for the Judge to discover and ascertain what the actual facts are
in the case before him.
Judges Only Discover Law:-

He asserted that the judges don’t make the law, instead they discover
it. Frank observed that a judge’s decisions are the outcome of his entire life
history. His likes, dislikes, emotions, temperament etc. have an important
bearing on the decisions. Further, his friends, his family, vocations, schools,
religion all these factors are influential.

Father’s Symbol Theory:-

Jerome Frank has given the Father’s Symbol theory. The child puts his
trust in the power and wisdom of his father to provide an atmosphere of
security. In the adult the counterpart of this feeling is the trust reposed in the
stability and immutability of human institutions. Frank suggested that the quest
for certainty in law is in effect a search for a ‘father-symbol’ to provide an aura
of security and although he attributed great prominence to this factor.

Oliver Wendell Holmes (1841-1935)

Law is a Prediction:-

Holmes said that law is not like mathematics. Law is nothing but a
prediction. According to him, the life of law is logic as well as experience. The
real nature of the law can’t be explained by formal deductive logic. Judges
make decisions based on their own sense of what is right. The duty of the judge
is to apply the law as he finds it and to do justice in the case before him and if
that required a creative interpretation of existing rules, then he should certainly
do it.
Bad Man Theory:-

In order to see what the law is in reality, Holmes adopted the standpoint
of a hypothetical “Bad man” i.e. the person who was before the Court as an
accused or a wrongdoer facing trial. Therefore, his theory is known as “Bad
Man Theory”. His theory says that a bad man successfully predicts the actual
law than other people. Holmes said that law should be looked from bad man’s
perspective. He pointed out that the accused or the wrongdoer, as the case may
be, had no interest in axioms or deductions but simply wanted a prediction of
what the Court would do (decide) in his particular case. In most cases, the court
is virtually certain to decide in a particular way. Thus what matters to the person
who is standing trial before the court is whether he will win or lose, and what
are the likely effects of winning or losing the case on him.

6. Contribution of Realist School to Jurisprudence

The main contribution of realists to jurisprudence lies in the fact

that they have approached law in a positive spirit and demonstrated the
futility of theoretical concepts of justice and natural law. Opposing
positivist’s view, the realists hold that law is uncertain and
indeterminable in nature therefore, certainty of law is a myth.

As Jerome Frank pointed out, “realist school has sought to liberate the
Judges from the enslavement of unduly rigid legal concepts and
empowered them to take into consideration the ground realities of social
facts while deciding the cases”.

According to Friedman, realist movement is an attempt to rationalise

and modernise the law by utilising scientific method and taking into
account the factual realities of social life.

For Julius Stone, “Realist movement is a gloss on the sociological

approach to jurisprudence. He considers realism as a combination of the
positivist and the sociological approach. It is positivist in the sense that it
undertakes the study of law as it is, and sociological, because it expects
 that law should function to meet the ends of society. Thus in his view,
realist school is merely a branch of sociological jurisprudence and a
method of scientific and rational approach to law.

Realism in the Indian Context

(i) Indian Jurisprudence does not formally accept to the realist’s

legal philosophy but stresses on functional aspect of the law:-

The legal philosophy of realist school has not been

accepted in India because of the texture of Indian social life is different
from that of the American life-style. The recent trends in the public
interest litigation also known as social action litigation have, however,
widened the scope of judicial activism to a great extent but the judges
have to formulate their decisions within the limits of Constitutional
frame of the law by using their interpretative skill. In other words, the
Judges in India can’t ignore the existing legislative statute and
enactments. They have to confine their decisions within the limits of the
written law. Besides the doctrine of precedent which has no place in
realist philosophy, plays a significant role in the Indian judicial system.
However, in certain circumstances (on grounds of inconsistency,
vagueness, unreasonableness, change of conditions etc.) judges can
overrule their earlier decisions. Thus, the Indian legal system, though
gives power to the judges with extensive judicial discretion, does not
make them omnipotent in the manner of formulation of law. The
Constitution of India itself provides ample scope for the Judges to take
into account the hard realities of socio-economic and cultural life of the
Indian people while dispensing social and economic justice to them.
Thus, in short, it can be said that though the Indian jurisprudence does
not formally subscribe to the realist’s legal philosophy, it does lay great
stress on the functional aspect of the law and relates law to the realities
of social life.
(ii) Judge made law is only real law is not correct in Indian context:-
The Indian jurisprudence refuses to
accept the realist’s view that judge-made law is the only real ‘law’ and
other laws are worthless. It accepts the role of judges and lawyers in
shaping the law. Thus it would be correct to say the Indian legal
system has developed on the pattern of sociological jurisprudence (as
evinced by the post independence socio-economic legislation) and not
on the doctrine of realism. Undoubtedly, the Indian judges do have the
liberty of interpreting law by taking into notice various cultural,
social, economic, political, historical and geographical variations of
the Indian society. The power of review and the doctrine of overruling
its previous decisions has enable the Supreme Court to effectuate the
socio-economic contents of the Constitutional mandate.
Keshav Mills v. Income Tax Commissioner (1965 SC), the Supreme
Court observed that it has inherent power to reconsider and revise its
earlier decision if it does not serve the interest of public good.
The observation made by Justice K. Ramaswamy in the case of
Krishna Swamy v. Union of India (1993 SC), deserve a special
mention in context of realism in interpretation of the Constitution and
the law of the lad. He observed as follows:
“The Judge is the living oracle working in dry light of realism pouring
life or force into dry bones of law to articulate the felt necessities of
the time.”