LEGAL REALISM (AMERICAN REALISM)

American Realism
- Exists as a result/in response of formalism formulated by Christopher Columbus Langdell
- The law is analysed based on logic (analytical deductions and legal reasoning)
- When a judge reaches a decision, what is most important is for there to be a logical deduction
regardless of the effect and morality
- The realists were against formalism as they felt that logical deductions did not illustrate
the reality of how judges reached their decisions
- They rejected theoretical and analytical approaches to jurisprudential questions
- The realists were more concerned with enlarging knowledge empirically and to relate it to the
solution of the practical problems of man in society at present day
- The law, to them, is both, a result of social forces and an instrument of social control
- The movement is a combination of the analytical positivist (considers the law as it is), and
sociological approaches (the law as a product of many factors).
- In attempting to be both, practical and pragmatic (realistic), they attempted to look at what they
perceived to be the reality in the question: How does law work in practice?
- Thus, it stresses on the study of the behaviour of judges, whereby its ultimate goal is to be able to
predict how judges decide cases in order to understand WHAT LAW IS?
- Accurate predictions can only be made once the law is fully understood
- It seeks to discover how judicial decisions are reached in reality and discover other factors that
contribute towards a judicial decision
- LAW IN BOOKS vs. LAW IN ACTION law not just as it exists in the statutes and cases, but as
it is actually applied in society)
- Their approach is highly empirical (based on real experience)
- Law is the product of ascertainable factors (non-legal factors) such as: judges personalities, their
social environment, the economic conditions in which they were brought up, business interests,
trends and movements of thought, emotions, psychology
- Carlill v Carbolic Smoke Ball: The decision was not made merely in regards to an invitation to
treat; it was also made out of sympathy towards Mrs Carlill.
- E.g: In deciding whether a harmful business activity is a Common Law nuisance, the judge must
ascertain whether the particular activity is reasonable. Realists contend that judges who are
ideologically inclined to foster business growth will authorise the continuation of a harmful activity,
whereas judges who are ideologically inclined to protect the environment will not.
- The realists believed that judicial decisions would better meet the needs of society if judges were
more open about the non-legal factors that influenced their decisions.

Oliver Wendell Holmes (1841 – 1935; US Supreme Court Justice, founder of the movement)
- He introduced a predictive approach to the law
- Law is simply a prediction of what courts will decide; that if a man does or omit certain things, he
would be punished
- He looked at the law from the perspective of a bad man
- In order to know what law is, one should view it through the eyes of a bad man, who does not
care the method in which the court applies in reaching a decision, but who is only
concerned with what will happen to him if he commits a certain wrong
- He recognised that there are many non-legal factors which influence the law, such as morality,
politics and prejudices.
- He doubted the general rules or principles of law as other factors are considered to play a
more dominant role
- The general propositions do not determine concrete cases; no case can be determined by general
propositions.
- The main focus of American realism is judicial decision-making
- “The life of law is not logic but experience”.
- A proper understanding of judicial decision-making would reveal that it was Fact centred, that
judges decision were often based on personal or political biases and constructed from hunches,
when in fact, public policy and social sciences should play a large role
- The indeterminacy (unpredictability) of legal concepts and legal reasoning led to the need to
explain judicial decisions in other terms (non-legal factors) and the opportunity to encourage a
different focus for judicial reasoning, namely public policy and social sciences
- Where the judiciary not only plays an interpretive role, but also a legislative role, it should
become more open in its use of policy so that there would no longer be a need to look into
precedents and false mechanical reasoning to understand what was really going on.

KARL LLEWELLYN (1893-1962)

- Law is a means to social ends and every part of it has to constantly be examined for its purpose
and effect, and to be judged in the light of both, and their relation to each other.
- The law has to be moulded to fit the current and future needs of the society
- Law must be evaluated in terms of its consequences (effects on the society)
- Legal rules as found in books and emphasised in judicial decisions do not accord with reality and
fail to describe the reasoning processes that judges adopt in reaching their decisions; they merely
provided paper justifications.
- They do not describe what the courts are purporting to do, nor how individuals concerned with
the law behave
-
- He treated the law as an institution; an organised activity built around a job or
Cluster of jobs that are fundamental to the continuance of the society or groups in which it operates.
- Where the institution of law is complex, consisting of rules, principles, techniques, values
and ideas, he asserted that the concern should be on the institution as a whole, including the
important ideals, instead of merely concentrating on the rules.
- Law has jobs to do within a society if it is to survive and achieve its purpose, and these jobs must
be effectively carried out.
-- Resolve disputes between members of the community: Law helps maintain a peaceful,
orderly society, and contributes to this stability by providing a means of resolving disputes,
overcoming a wrong done, or attending to a specific grievance.
- Prevent or help avoid disruptive conflicts within the community
- E.g: Property law facilitates business activities, while laws limiting the powers of
government help ensure individual freedom.
- Accommodate changes in the circumstances of the community and its members: Law can also
be used as a means of accomplishing social change
- E.g: In the prohibition of racial discrimination; the establishment of national health and social
security systems.
- Recognise the authority structure of the community
- Establish procedural rules for performing other tasks
- His list of law-jobs provide a holistic approach to law-making and judicial activity; they
are not merely about making the law open, accessible and clear, they also concern the fundamental
role and function of law in society.
- He considers law-jobs as universal, and is of the view that society will develop institutions to
perform these jobs.
Jerome Frank (1889 – 1957; a US Federal Judge)

- He insisted that there are two groups of realists, namely rule sceptics and fact sceptics
Rule sceptics (represented by Holmes and Llewellyn) regard legal uncertainty as residing
principally in the paper, rules of law and seek to discover uniformities in actual judicial behaviour.
- They are sceptical of formal rules as the major deciding factor in legal cases or the ability of
general rules to provide the solution to particular cases
- Law in books were considered unreliable in guiding the prediction of decisions, and that if the
real rules were to be discovered, only then can certainty and predictability be achieved.
- Its aim was to show that simple reliance on rules was a fallacy and that judges either consciously
or unconsciously continue to adhere to rule formalism
- Judges are seen as unprepared to make clear the real reasons for their decisions because it
would be seen as a betrayal of the ideal of the rule of law; the idea that the law is neutral and
objective, and not dependent upon any personal factors.
- Judges should not feel the need to hide behind precedents (doctrine of stare decisis), but should
instead make policy-based decisions that are best for the society
- They are committed to the idea that the aim of judicial decision-making was to increase
legal certainty or predictability
- They considered it desirable that lawyers should be able to predict the outcome of their
client’s cases that have yet to comment
- Fact sceptics (led by Frank) abandoned all attempts to seek rule-certainty and pointed to the
uncertainty of establishing the facts in trial courts.
- He urged that too much attention was devoted to the processes in the appellate courts, and
had, thus neglected the lower courts
- Knowledge of what goes on in the lower courts is needed in order to know what law means to
persons in “lower income brackets”
- Rule sceptics seek means for making accurate guesses, not about decisions of trial courts, but
only decisions of appellate courts when trial court decisions are appealed.
- Rule sceptics disregard the question of whether the facts arrived at in the lower court were
actually real facts as appeal courts generally do not debate the facts of a case.
- Regardless of how precise formal legal rules are, it will always be impossible to predict future
decisions/in what way the trial court will decide in most lawsuits because of the elusiveness
(ambiguity) of the facts on which decisions turn.
- There are two main groups of elusive factors:
- 1. The trial judge in a non jury trial or the jury in the jury must learn trial must learn the fact from
the witnesses who may make mistakes in observation of what they saw or heard, in recalling of
what they observed, or in their courtroom reports of such recollections
- 2.The trial judges or juries may have prejudices (often unknown to themselves) for or
against some witnesses, parties to the suit, or their lawyers
- Elusive elements such as racial, religious, political or economic prejudices of the judge and the
jury may be uniform, but it is impossible to include all their hidden unconscious biases as such
biases cannot be predicted
- Uncertainty can also be found in the process by which a material fact is determined
- In a trial court, the law and the facts become intertwined, and are not distinguished from one
another
- Juries, in reaching a verdict, may act on their emotional responses to the lawyers and witnesses
that they liked or disliked, and not on any legal rule
- These mistakes are then adopted and relied upon by the appellate court
- Rules are mere word formulae, and if they are to have any meaning at all, such meaning
must be sought in the facts of real life to which the rules correspond.
- Frank denied that there is certainty in the judicial process and that if the fact sceptics were to be
followed, the elusiveness of facts would make predictions wholly impossible.

Criticisms
- Realism is a mere technology; mere description of what is transpiring in courts, and there is no
suggestion of what ought to be.
- The law should be concerned with shaping or reflecting social change, not with shaping
the society
- Realists glorify the judiciary (their stance revolves around the judiciary) to such an extent
that it appears as though the judicial function is at the heart of the law
- They failed to consider that much of what occurs in society are not brought before the court, thus
proving that the law does not revolve around the judicial function
- Realists have not improved jurisprudential thought, but have only created more arenas to
think about
- Realists have completely overlooked the importance of rules and legal principles and treated law
as an assemblage of unconnected court decisions.
- Their perception of law rests upon the subjective fantasies and life experience of the judge who
is deciding the case or dispute.
- They overestimate the role of judges in the formulation of laws. Judges do contribute to
law-making to a certain extent, but it cannot be forgotten that their main function is to interpret
the law.
- Realists undermine the authority of precedents and argue that case law is often made in haste
without regard to wider implications.
- Courts have to rely on the evidence and arguments presented to them in court, and do not have
access to wider evidence such as statistical data, economic forecasts, public opinion, survey etc.

Defences
- The attack against the doctrine of stare decisis, which ties the hands of the judges, has helped
improve the system of the lower courts
- The movement have helped judges become more honest and informed
- Judges would look into non-legal factors when making a decision and interpret the words of the
statute by giving thought to the effect of their decision on the society at that point of time