AMERICAN LEGAL REALISM IN A NUTSHELL

A group of American legal theorists in the early decades of the 20th centaury who
challenged the dominant ideas of legal reasoning and academic writing of
their time was known to espouse American Legal Realism.

The founding father of ALR is Oliver Wendell Holmes, and his work, that is, The
Path of Law is what you can call as the Manifesto of ALR. He believed that law is
nothing but experience and this is further developed to grow into American Legal
Realism.

Neil Duxbury went on to call Legal realism a “feel” or “mood” as there was
significant commonality between the different legal realists and hence this movement
lacked coherence.

However, if one has to draw a commonality, it is safe to say that according to

American Legal Realists, there is a different in law in books and law in action.

Karl Llewellyn and Rosco Pound also had this idea that law in books and law in
reality are different.

Example: Section 295A of IPC or Indian law on Sedition 124A of IPC.

On paper these laws seem mellow and harmless, but their operation in real is anything
but mellow. This is what Doctrine Of Chilling Effect.

Legal realism has been divided into two schools:

a) American Legal Realism

b) Scandinavian Realism

The ambit of our discussion is limited to the former.

The key features of American Legal Realism

1. Tried to demolish law’s claim of occupying moral and logical high ground
2. Emphasized that law was fact-centered as opposed to strictly being deduced from
principles.
3. Judges give judgments based on their experiences, hunches, and ideologies. Hence,
each judgment is coloured by a judge’s perspective, political and personal biases.
4. Seeked to highlight the ground reality keeping the sociological framework in mind

Realism developed in opposition to Formalism, also called as Mechanical

Jurisprudence.
What is Mechanical Jurisprudence or Formalism? - Legal formalism was considered
as black-letter tradition because it was thought that a person solely need to consult the
appropriate textual sources from law books on a particular issue in order to know
what is the law. This idea came from Christopher Columbus Langdell, Dean of the
Havard Law school 1870-1885, who proposed that: “law can be seen as a science
and that all the available materials of the science are contained in printed books.”
Which represents that once the rules have been created by lawmakers, judges will

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 implement those rules to a case and at the same time real life concerns and ethical
issue were being omitted from this process. Once the exact label was identified in a
case, it is then followed by the legal conclusion, therefore this was then described as
“mechanical jurisprudence”. Example: Sugar Monopoly case.

A common feature which binded the various American legal realists was their
opposition to Formalism which is:
1) There is a lack of application of real life concepts.
2) The argument was presented as if the conclusion followed simply and inexorably
from undeniable premise
3) Example of this school: Christopher Langdell’s Case Method

Holmes said, the life of law has not been logic, but experience. The term ‘realism’ in
American Legal Realism is supposed to mean to look beyond what the law says, and take the
reality of society and facts into consideration.

Realism’s Criticism of Formalism can be divided in two broad categories

1) Judicial Decision making is not deductive, and that the laws are inderminent.
Laws can’t be explained by deduction, and it rejects the machine slot jurisprudence.
Law doesn’t have the answer for everything or every situation. Law has an open
texture and that Judges must step in to think and answer these questions that are left
unanswered by law.
Example: When is the contract formed? Langdell would simply answer that it is
formed when the minds meet, but in real is extremely difficult to ascertain when is it
actually that the minds have met. In the case of shopping at a supermarket, when
would you say that the minds have met? When you pick the product from the shelf?
When you go to the payment lane? When you pay?
Holmes is on another extreme end and focuses only on consequences.

2) Adjudication is not neutral.

Except in very hyper technical cases, say where there exists an exact formula for
calculation of taxes, in most cases lawyers & judges are concerned about
consequences and decide accordingly.
Example: Keshavnanda Bharti and ‘Res extra commercium’ and how the how the
judges interpreted these cases.
Example 2:
Statutes appear to be neutral but in fact they are not. This can best be explained by the
famous dissent of Justice William Andrew in the landmark judgment of Palsgarf v.
Long Island Railroad in which he went on to say that determining proximity is
arbitrary as tracing the proximity chain to a certain point is done according to the
convenience of the judge and not objectively. Hence, it is a matter of practical
politics.

These are all examples of non-neutrality of law.

Holme’s puts the bad man in the heart of his argument.

Bad man is the client who wants to know which actions will land him in jail or cost him a
fine, and which will not; everything else is superfluous and besides the point. According to
him, law is about looking at the consequence by putting oneself in the shoes of the bad man.

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Bad man works on objectivity, seeking what will keep him out of jail and what will not? But
again there is a lot subjectivity in law, and liquor ban on highway, ban on forest safari are all
examples of un predictability.

The problem with Holmes’s approach is that it only focus on sanctions and predictions.

Hart also critiques this Bad Man approach of Holmes and says the purpose for formation of a
contract is performance and not avoidance or damages.

If common law is what ALR says, then there wouldn’t so much predictability and lawyer’s
won’t be able to advise clients. But as Karl Llewellyn says lawyers develop a horse sense that
gives him them instincts and answers. This is certainly unpredictability but mostly not.

Conclusion

Holmes definition of law and the scope of jurisprudence led to future developments in
constructing American Realism which focused attention on empirical factors underlying legal
system

He emphasized that facts must dominate legal investigation. His work was founded in
pragmastism and for him predictions and the bad man were of utmost importance while
looking at law. He demystifyed law and brought it down from the moral-logical high
ground that law has always been placed on.