Realist School of Law || American Realism ||
Jurisprudence ||
In this article, we are going to
discuss the theory of realism, modern realism, Realist school of law, American
realism, etc. Let's get starts.
Introduction:-
The realist approach in the field of jurisprudence is a relatively modern one. Its
prime home is the US. The thesis of realists is based on the notion: “Law is what
the psychology of courts determines - the aggregate of the item of judicial and
official actions”. “Law is what the judges decide.” They emphasis the element
of uncertainty in law and part played by the personal characteristics of the
judge. Law is defined not as a set of the legal propositions, but in term of
the official action. The realist approach to law is a part of the sociological
approach. That is why it is sometimes called a left-wing of sociological or
functional School.
Meaning
of realism:-
The Realist movement concentrates on scientific observation of law in
its meaning and working. This movement is named as a ‘realist’ because this
approach studies law as it is in actual working and its effect.
In the word of Professor Pound:
“By realism, they mean fidelity to nature, accurate recording of
things as they are as contrasted with a thing as they are imagined to be, or
wished to be or as one feels they ought to be.”
According
to Llewellyn,
“Realism
is not a school but it can be called as a branch of sociological School.1
It concentrates on the actual working and effect of law and is, therefore,
called the realist school.
Reasons
for the establishment of realist schools:-
There are mainly three reasons for the establishment of the Realist
School of law, as follows;
The first reason is that it was established as a reaction again the sociological
jurists who were emphasizing the social effect of law.
The second reason was that it was established to ignore the theory of interest as
given by the Ihering and the theory of Social Engineering as advocated by
Pound.
The third reason is that this school was established to point out the importance of
Courts and the importance of judges- the human factor is the judges and the
lawyers.
Type
of the realist schools:-
There are two types of the Realist School. The first one is the American
Realist School and the second is the Scandinavian Realist School.
Holmes, Gray, and Jereme Frank are the main
supporters of the American Realist School. Scandinavian realism is a philosophical
critique of the metaphysical foundation of law. They have put forth a philosophical
justification. Olivercrona, Lundstedt, Ross, and Hagerstrom are the main
exponents of the Scandinavian Realist School.
American
realist school: Holme’s view:-
As a judge of the supreme courts, Holmes played a fundamental part, in both writing and his long tenure, in bringing about a changed the attitude
of the law. His emphasize on the fact that the life of the low experience, as
well as logic, and his view of the law as predictions of what the court will
decide stressed the empirical and parametric aspect of law. And he said that, if
one wishes to know what the law is, then one should view it through the eyes of
a bad man who is only concerned with what will happen to him if he does certain
things. The traditional description of law is that it consists of rules from
which deductions are made. He says, "But if we take the view of our
friend, the bad man, we shall find that he does not care straws for the action
or detection, but that he does want to know what Massachusetts of English
Courts is likely to do in fact.
Thus, according to Holmes, the law is
what courts (or other officials) do, not what they say. Until a court has pass
judgment on certain facts, there is no law on the subject yet in existence, for
opinions of a lawyer is only a guess as to what the court will decide.
Gray’s
view:-
Another
pioneer of American realist school was Grey, who made a distinction between the
law and source of law. According to him, the law is what the judges decide. Everything else, including statute, is the only
source of law until interpreted by a court. He defined ‘the law’ as follows: “the
court of the state or any organized body of men is composed of the rules which
the courts, that is, judicial organs of that body laid down for the determination
of legal rights and duties”. He said of statutes that, "the courts put
life into the dead word of the statutes, other sources including expert
opinion, customs, and public policy".
Frank's
view:-
In his book titled 'Law and the Modern Mind
(1930)' Frank explained his theory of law and jurisprudence. His entire thesis
is centered on one point viz. Law is uncertain, the certainty of law is the legal
myth. Frank insists that there are two groups of realists, first one is ‘rules
sceptics’ as he calls them, who regard legal uncertainty as residing principally
in the “paper” rules of law and who seek to discover uniformities in the actual
judicial behavior and “fact sceptics” who think that the unpredictability of
the court decision resides primarily in the elusiveness of facts.
Conclusion:-
It cannot be
denied that the realist movement has made very valuable contributions to
jurisprudence. Their approach to law is in a positive spirit and they are not
concerned with any theory of justice or natural law. They say that ‘certainty of
law’ is a myth. They plead for a comprehensive approach and examination of all
the factors that lead to reaching a decision.
1.
Llewellyn,
some realism about realism; responding to Dean Pound, Harvard law Review,
Volume 44 No.8, June 1931, p. 1222-1264.
No comments:
Post a Comment