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.
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 emphasize the element of uncertainty in law and part played by the personal characteristics of the judge. Law is defined not as a set of legal propositions, but in terms 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 change the attitude of the law. His emphasis 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 aspects 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 passed judgment on certain facts, there is no law on the subject yet in existence, for the opinions of a lawyer are only a guess as to what the court will decide.
Another pioneer of American realist school was Grey, who made a distinction between the law and the 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”.
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, the 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.
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.