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Realism: American and Scandinavian

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What is American realism? Is there any difference between American realism and
Scandinavian realism? discuss.

The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school as a
separate school of jurisprudence. American realism is a combination of the analytical
positivism and sociological approaches. It is positivist in that it first considers the law as it is.
On the other hand, the law as it stands is the product of many factors.

main jurists of American realist school & their theories:

JUSTICE HOLMES: Bad Man Theory: The seeds of realism were sown by Justice Holmes.
He 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 cannot be explained by
formal deductive logic. Judges make their decisions based on their own sense of what is right.
In order to see what the law is in reality; he adopted the standpoint of a hypothetical ‘Bad man’
facing trial. Therefore, his theory is known as Bad Man Theory. This 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. On the basis of this
prediction Holmes defined the law as, “Prophecies (ability to predict) of what the court will do
in fact and nothing more pretentious.”

JUSTICE GRAY: John Chipman Gray only exhibited limited factors in common with the
realists. His approach was certainly as court-oriented as the realists. For Gray the law was
simply what the court decided. Everything else, including statutes, were simply sources of law.
He said, “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.

KARL N. LLEWELLYN: A Law Jobs Theory: 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.

According to Llewellyn realism means a movement in thought and work about law. KarlLlew
ellyn outlined the principle features of the realist approach.

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contribution of the American 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.

Rule Scepticism

Rule scepticism refers to the fact that the rules are uncertain. A rule is capable of having
more than one meaning. A common man is left confused to decipher as to what the rule really
is. The rule sceptics, prominent among them were Karl Llewelleyn, point out that the legal
rules do not guarantee a particular decision of the court as the courts are deciding what will be
just given the overall impression of the case a judge or bench of judges get out of a set of facts.

Facts Scepticism

Facts scepticism on the other hand focuses on the lower courts (i.e. trial and subordinate
courts) and on they found that appellate courts do not or engage very little with the facts of
a case. They don't bother if what were decided to be facts of the case by a subordinate court to
be real facts of the case. As we know the persons associated at the subordinate or trial court
level have lot of limitations, often prejudices, and bias of various kinds including personal bias,
gender bias, caste bias to name a few.

Judicial Activism

In India the remarks of realists can be found in what is called as judicial activism.
Through judicial activism the Indian courts have actually illustrated that the judges considering
non legal factors like policy issues etc. and developing the law in a wholesome manner is not
only a possibility but also desirable as long as the judiciary restrains at an appropriate point
and knows when activism crosses the fine line and becomes judicial overreach.

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criticism of American realist school

1. The realist approach to jurisprudence has evoked criticism from many quarters. The critics
allege that the exponents of realist school have completely overlooked the importance of rules
and legal principles and treated aw 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. Therefore, there can’t be certainty and definiteness about the law.
This is indeed overestimating the role of judges in formulation of the laws. Undoubtedly, judges
do contribute to law-making to a certain extent but it cannot be forgotten that their main
function is to interpret the law.

2. The supporters of realist theory undermine the authority of the precedent and argue that
case law is often made ‘in haste’, without regard to wider implications. The courts generally
give decisions on the spot and only rarely take time for consideration. They 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.

3. Realist school has exaggerated the role of human factor in judicial decisions. It is not correct
to say that judicial pronouncementsare the outcome of personality and behaviour of the judge.
There are a variety of other factors as well which has to take into consideration while reaching
his decisions.

4. The realist theory is confined to local judicial setting of United States and has no universal
application in other parts of the world like other schools of jurisprudence.

comparison of Scandinavian and American realism

The Scandinavian realists share with the sociological jurists like Pound a weakness for a priori
assertions, while at the same time insisting on the use for basing the law on the needs of social
life. They link this attitude with varying degrees of hostility to conceptual thinking, which they
stigmatize as metaphysical or ideological. The American Realists, on the other hand are not
much interested in general theorizing about law and although they may share with the
Scandinavian the feeling that rules do not decide cases, they do not altogether reject the
normative aspect of legal rules.

American Realists are mainly interested in the practical working of judicial process whereas
Scandinavians are more concerned with the theoretical operation of the legal system as a whole.

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Although the Scandinavians are the most extreme of empiricists, it is the Americans who
primarily stress the need for factual studies in working out proper solutions for legal problems.

The Scandinavians movement, for all its positivists, remains essentially in the Europe
Philosophical tradition, whereas the American bears many of the characteristics of English
empiricisms.

Conclusion

As we know that American realism is a combination of the analytical positivism and

sociological approaches. Realists define law as generalized prediction of what the courts will
do. Realists believe that certainty of law is a myth and its predictability depends upon the set
of facts which are before the court for decision. Legal realism emerged as an anti-formalist and
empirically oriented response to and rejection of the legal formalism. Legal realism operates
on a premise that is adhered to by most laymen and many who have legal training: that “the
law," whatever that may be, is concerned with and is intrinsically tied to the real-world
outcomes of particular cases. Proponents of legal realism say it is not concerned with what the
law ‘should’ or ‘ought’ to be, but that legal realism simply seeks to describe what the law is.

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 SCANDINAVIAN REALISM

The Scandinavian realists was introduced in the 1940s resemble many other modern
schools in their positivist outlook and in their desire to eliminate all metaphysics. They are
basically the group of philosophers and law professors of the various countries like Sweden,
Denmark and Norway. For them law can be explained purely in terms of observable facts and
the study of such facts, which is the science of law, is, therefore, a true science like any other
concerned with facts and events in the realm of causality.

The interface between law and psychology was one of the major focuses of the Scandinavian
realists. In the process they articulated the fact that law influences the human behaviours in
certain ways. Scandinavian realists consider the physical facts and the psychological effects of
law.

Scandinavian realists have played an important role in rejecting the ideas of the school of
natural law. Some of the noted Scandinavian Realists are as follows:

OLIVERCRONA (1897-1980)

Law, according to Prof. Olivercrona, does not require any specific definition. He sought to
investigate the law and not the nature of law since such an examination of the nature of law
would require an assumption to be made with regards to what it is. He insisted on examining
facts rather than making assumptions. According to him, the law has a “binding force” so long
as it is valid. The moment it loses its validity, it loses its binding force.

A. V. LUNDSTEDT

Lundstedt rejected the idea of justice and normal aspects of the law. The idea of justice
according to him is purely metaphysical and a pure fantasy. He believed that only physical facts
should be considered in the study of law.

Thus, he dismissed the idea of concepts of rights, duties, legal rules and so on. The idea of law
being made for justice was rejected by Lundstedt and he regarded such ideas of law derived
from natural justice to be material law.

critics of the Scandinavian school:

Legal Positivists: Scholars associated with legal positivism, such as H.L.A. Hart and Joseph
Raz, have critiqued the Scandinavian School’s rejection of a strict separation between law and

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morality. They argue that law should be analysed based on its validity as a social institution,
rather than its conformity with moral principles.

Critical Legal Studies Scholars: Critics from the critical legal studies movement have
challenged the Scandinavian School’s emphasis on empirical research and sociological
analysis, arguing that these approaches may overlook deeper structural injustices embedded
within the legal system.

Natural Law Theorists: Some proponents of natural law theory have criticized the
Scandinavian School’s pragmatic and relativistic approach to law, arguing that it fails to
provide a foundation for legal norms and principles beyond social context.

Formalists: Scholars who adhere to formalist approaches to law critique the Scandinavian
School’s emphasis on subjective factors in legal decision-making, arguing that legal reasoning
should be based on objective principles and logical consistency.

legal realism in India

LIMITS OF JUDICIAL ACTIVISM

The arguments of realists that the courts make law openly rather than under the cloth of
logic has not materialized. Perhaps rightly so. Because, when courts will be free to legislate,
the legislature will become irrelevant and the checks and balance between the two branches of
the state which is so intricate in the constitutional scheme will be disturbed. For such checks
and balance serve a very import purpose of preventing concentration of power. Moreover, the
requirement of clothing the non-legal factors with logic would require the judges to be very
cautious in their approach and they will only fill the gaps in the existing legislation. And when
required the legislature would be free to legislate on what was the gap filled by the courts.

POST RETIREMENT APPOINTMENTS

While the realists have pointed out the influence of many extra-legal factors in decision
making of judges, in India we have an institutionalized factor – in the form of post-retirement
appointments in Tribunals and Other Constitutional Positions - which could play a role when a
judge decides a case. From the realists’ point of view, this is not a factor that is difficult to
handle. Because, unlike other factors which are difficult to observe and almost impossible to
prove, this aspect can be easily observed and can be tackled by institutionalizing the relevant
rules which prohibits and puts limitations on taking up of post-retirement positions.

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Indian case laws related to this school:

While the Scandinavian School of Jurisprudence may not have directly influenced Indian legal
thought to the same extent as in Scandinavia or other Western jurisdictions, its principles of
empirical research, sociological analysis, and pragmatic approach to understanding the law
have had some resonance in Indian jurisprudence.

Vishaka v. State of Rajasthan (1997):

In this case, the Supreme Court laid down guidelines to prevent sexual harassment of women
in the workplace. The court invoked international conventions and standards, as well as
constitutional principles of equality and dignity, to develop a framework for addressing gender-
based discrimination and violence. This decision reflects a sociological understanding of the
law, taking into account broader social norms and values in interpreting and applying legal
principles.

Kesavananda Bharati v. State of Kerala (1973):

In this seminal case on constitutional law, the Supreme Court articulated the doctrine of basic
structure, holding that certain fundamental features of the Constitution are beyond the
amending power of the legislature. The court’s decision drew on principles of constitutional
morality, justice, and the rule of law, reflecting a pragmatic approach to constitutional
interpretation and the role of the judiciary in safeguarding core constitutional values.

Conclusion

The Scandinavian School of Jurisprudence represents a pragmatic and sociological approach

to legal analysis that emphasizes empirical research, social context, and the importance of
considering moral values in understanding the law. This school of thought has had a significant
impact on legal scholarship and continues to influence debates in legal philosophy and practice.
Through its emphasis on empirical research and sociological analysis, the Scandinavian School
offers valuable insights into the functioning of the legal system and its role in society.

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