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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.”...