American Realism

The realist approach in the field of jurisprudence is relatively recent approach. American realism
is considered as a latest branch of sociological jurisprudence and therefore, it is termed by many
as ‘Left wing of sociological school.” In fact, it can best be described as ‘Movement’ rather than
a school of thought. According to Llewellyn “there is no realist movement as such, it is only
a movement in thought and work about law.” This movement is named as realist because this
approach studies law in its actual working and functioning. Realists don’t give any importance to
laws enacted by the legislature and they uphold only judge made law as genuine law. Realist
define law as generalized prediction of what the courts will do. As a form of jurisprudence,
legal realism is defined by its focus on the law as it actually exists in practice, rather than how it
exists in the books. To this end, it was primarily concerned with the actions of judges and the
factors that influenced processes of judicial decision making. As Karl Llewellyn argues,
“behind decisions stand judges; judges are men; as men they have human backgrounds.”
The law, therefore, did not exist in a metaphysical realm of fundamental rules or principles, but
was inseparable from human action and the power of judges to determine the law.

Factors responsible

1. Growth of pragmatic philosophy in America, whih led to a revolt against excessive

formalism.
2. Organization of Supreme Court in America. Supreme Court acquired supreme authority
in America with the power to strike down any legislation as void.

Features

1. The realists believed that judges neither do nor should decide cases formalistically. Law
is not, as the formalists claimed, a system of rules that is clear, consistent, and
complete. Rather, the law is riddled with ambiguities, contradictions, gaps, vague terms,
and conflicting rules of interpretation. As a result, there is often (perhaps always) no
uniquely correct answer to any case that comes before the court. Law is incurably
“indeterminate”.
2. Realists believe that certainty of law is a myth and its predictability depends upon set of
facts which are before the Court.
 3. As law and society are interrelated and society changes faster than law, so there can
never be something like a certain law.
4. Realist evaluate any law in terms of its effects.
5. They lay great stress on psychological approach for the proper understanding of law as
they are more concerned with the convictions of lawyers and judges.
6. The realist introduced studies of case laws particularly study of different results reached
by the courts by application of same set of rules but with different facts of the cases.
7. The realists were legal positivists who believed that law should be treated scientifically.
A clear distinction should be drawn between what the law is and what it should be. Law
can only be viewed as an empirical science.

EXPONENTS

1. Oliver Wendell Holmes Jr.

Holmes was an American jurist who served as an Associate Justice of the Supreme Court of the
United States from 1902 to 1932. He is described as the intellectual inspiration and even the
spiritual father of the American realist movement. He was skeptical (doubtful) of the ability
of general rules to provide the solution to particular cases and readily gave credit to the extra
judicial factors in judicial decision making. Holmes gave classic exposition of the court
focused approach in 1897 in a paper called “The Path of Law.” Holmes helped move American
legal thinking towards legal realism, as summed up in his maxim: "The life of the law has not
been logic; it has been experience.” Holmes’ “Common Law” has been his important
contribution to the jurisprudence. In the book, Holmes set forth his view that the only source of
law, properly speaking, was a judicial decision enforced by the state. His philosophy
represented a departure from the prevailing jurisprudence of the time: legal formalism, which
held that law was an orderly system of rules from which decisions in particular cases could be
deduced.

Holmes is known for his most important and influential argument, the “bad-man” theory
of law. If we take the view of the bad man, that is the person who has committed a crime, we
shall find that he does not care about either the morality or the logic of the law. For him, law
signifies only “a prophecy that if he does certain things he will be subjected to disagreeable
consequences by way of imprisonment or fine.” He is least concerned with the law as it is
contained in the books, he concerns himself only with practical consequences.

Thus, according to Holmes, law is what the courts actually do. Until a court has passes judgment
on certain facts, there is no law on the subject yet in existence, and opinion of lawyers is only a
guess as to what the court will decide.

Further, Holmes advocated that law and morality, to some extent, should be kept separate.
He did observe that the practical importance of distinguishing law and morality can be seen in
the fact that, although the bad man may have no concern for what is morally required, he still
wishes to know what is legally required in order to avoid the unpleasant application of
governmental power against himself.
However, it can be argued that judges recognize the fact that their decisions are affected by
moral considerations. Would the bad man theory apply under these circumstances? The bad man
wants to know what judges will decide, so he will also want to understand all of the factors
involved in judicial decision making. If moral considerations play a significant role in the
determination of judicial decisions, then the bad man must attempt to achieve an
understanding of those considerations.
As Lon Fuller once argued, the bad man must adopt the point of view of the good man if he is to
succeed.
2. John Chipman Gray
Gray's critique of Austinian analytical jurisprudence led him to his well known pro-realist
definition: “The Law of the State or of any organized body of men is composed of the rules
which the courts, that is, the judicial organs of that body, lay down for the determination of
legal rights and duties.” This leads to the view that the actual rules laid down by the courts are
distinct from the sources, namely Statute, Precedent, Custom, Equity or Morality, and Doctrinal
Writing, upon which judges rely in laying down these rules.
The State, according to Gray, is capable of issuing commands. Its general commands are framed
in legislation by its legislative organs and its more particular commands are issued by the
executive and administrative organs. Although general or legislative commands are known as
laws in ordinary speech, these are properly only "sources" of the Law, that is, the rules which
the judicial organs of the State lay down to determine questions of legal right and wrong.
Gray, however, admits the fact that the judges are rarely the real rulers. Although the Law
is roughly whatever the judges determine it to be, judges may not exercise unfettered discretion.
They can exercise their functions only within those limits which the real rulers of the State allow
for the exercise. He asserts that we cannot account for the Law without accounting for the judges'
positions as organs of the State. We cannot, in turn, account for the judges' positions without
accounting for the artificial rules that establish these and other organs of the State. The task of
jurisprudence, however, is neither the analysis of such relations nor the identification of the real
power-holders. Its concern is only with the state and its law.
On the one hand, Gray said that statutes, rules etc are the sources of law, and not law by itself.
On the other hand, he himself agrees that certain presupposed rules are the necessary condition
for creating “judicial organs of the State.” It can be implied that judicial organ of the State exists
because there is “law”. Therefore, it seems wrong to deny the legal character to the presupposed
constitutional rules.
3. Jerome Frank
Frank has explained his theory in his book titled as Law and Modern Mind. Frank insisted upon
the existence of two groups of realists. While “Rule skeptics” are skeptical about legal rules
providing uniformity to law, the “Fact Skeptics” are skeptical about the establishment of facts
before the trial court, in addition to the skepticism about legal rules. Frank identified himself as a
member of the second group. According to him, law involves the application of certain rules of
law to the facts of a case by the judge. He expresses his skepticism about the accuracy in the
finding of a fact by a judge and therefore he emphasizes the uncertainty of the law. Precedents
and codified law, according to him, are made under the false belief that law should be
certain. He was of the opinion that judges and lawyers should accept the fact that law is
uncertain and should not strictly adhere to the precedents and codified laws. Such strict
adherence to precedents and codifications in order to ascertain the law only provides a false
sense of security to them and is actually quite harmful and dangerous. In this regard, Frank has
given Father Symbol Theory. As the power and wisdom of father gives a sense of security to a
child, in the same manner, Frank asserts that people yearn for certainty in law as they feel more
secure if they are confident about what the law is. He himself, however, says that certainty of law
is a myth and he pleads that a Judge should resort to objective fact finding to reach his decision.
Jerome Frank was foremost among those jurisprudential scholars who wished to shift their focus
of inquiry from rules to decisions. Frank was deeply influenced by Holmes and this is much
evident from his definition of law:
“We may now venture a rough definition of law from the point of view of the average man: For
any particular lay person, the law, with respect to any particular set of facts, is a decision of a
court with respect to those facts so far as that decision affects that particular person. Until a
court has passed on those facts no law on that subject is yet in existence. Prior to such a
decision, the only law available is the opinion of lawyers as to the law relating to that person
and to those facts. Such opinion is not actually law but only a guess as to what a court will
decide.”
Frank paid great attention to the conscious and sub-conscious thought processes of judicial
decision-makers. He argued that judges make their decisions not so much on the basis of legal
rules and principles as on the basis of an undisclosed hunch (intuition).
Criticism of realist school
1. Over emphasis upon role of judges
2. Exaggeration of human factor
3. Some laws never come up before the courts
4. No universal applicability
Legal realism in Indian context
1. Law is expressed in general terms and application of law to different cases is done by the
court i.e. law is applied to a fact situation by the Court.
2. Every law has intent or purpose behind it which is mostly the socio-economic
development, and it is the Supreme court which checks whether a particular legislation is
ultra vires the Constitution, even if the intent behind it was laudable and bonafide.
3. The words and phrases used in every legislation are flexible in nature in order to meet
various situations. For e.g. Obscenity is not defined in the Indian penal code, but
punishment for obscene acts is available under section 292 and section 294 of the IPC.
So, here the courts themselves defined whether the act of accused amounted to obscenity
based on their perspective.
4. Judiciary comes forward to fill the gaps in legislations. Thus, in D.K.Basu v. State of
WB, (1997) 1 SCC 416, SC laid down detailed guidelines foe arresting a person. Till the
 time CrPC was amended in the year 2005, these guidelines operated as law. Similarly in
Vishakha v. State of Raj, AIR 1997 SC 3011, SC laid down guidelines for preventing
sexual harassment at workplace and these guidelines operated as law till the parliament
enacted Sexual harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act in 2013.
5. SC is not bound by the precedents and it can overrule its own decisions. e.g Vinay
Chandra Mishra case overruled by the SC itself in Supreme Court bar Association case.
However, although the judiciary in India is known for its activist role, yet judges are also
bound by the Constitution which is supreme law of the land. Although discretion is vested in
the judiciary, it cannot exercise that discretion in an arbitrary manner, but strictly according
to constitutional norms.