THEORIES OF LAW : AMERICAN REALISM

MOVEMENT
• Legal Realists think that the law has an empirical reality . They say no other legal theory is realistic.
• Empirical reality is the reality that can be verified by observation or other experience.
• They think that we should not look at the rules or the reasoning behind cases. Rather, we should just
look at the outcome of the cases to tell us what the law is.
• Quote from O.W. Holmes (one of the founding fathers of Legal Realism) to use to summarise Legal
Realism:
“The prophecies of what courts will do in fact, and nothing more pretentious, are what I mean by the
law.”
REALIST THEORY OF LAW

Realist Movement:
a. American Realism
b. Scandinavian Realism
Theories of Law : American Realism Movement
WHY “REALISM”?
Because of its approach to study law in its actual working and effects.
“ Law is what the Court has decided in respect of any particular set of facts prior to such decision, the
opinion of lawyers is only a guess as to what the Court will decide and this cannot be treated as law
unless the Court so decides by its judicial pronouncement.” - Frank Jerome : Modern Law and Mind
(1930)
Legal Realism perceives law as a generalized prediction of ‘What the Courts will do’.
Evaluation of law in terms of its effect.
Denounces traditional legal rules and concepts.
No importance given to legislature-enacted laws.
Only judge-made law upheld as genuine. Applying the same law, two different judges give different
judgments.
Certainty of law is a myth because it is connected with the ever-changing society.
AMERICAN REALISM
Analytical Positivism + Sociological Approaches = American Realism

Considers the law as it is (Positivism)

Law as it stands, is a product of many factors (Sociological Approach)

Gained force during the term of President Franklin D. Roosevelt in 19th century. ‘Movement’ or
‘Historical Phenomenon’, than a ‘School of thought’
not a definite coherent theoretical system.
Studies law as it is, as it is in its actual working and its effects, investigate the realities of modern
society in their relation to modern law.
Fathers of the movement-
1) John Chipman Gray
2) Oliver Wendell Holmes
American Realism and Legal Positivism Share one important belief :-
Similar views on the difference between the ‘law as it is’ and the ‘law as it ought to be’.

American Realism and Sociological Approach:

Unlike the sociological approach, realists are not much concerned about the ends of law, but their main
concern is on a scientific observation of law and its actual functioning.

American Realism and Natural Law:

According to Natural Law school, laws are made by the nature or God itself, but the Realist school
believes that laws are made by judges or juristic persons.
 John Chipman Gray

Exponent of the analytical tendency in jurisprudence.

“The law is what the Court decides”.
Placed the judge in the centre instead of the statutory legislation
Prepared the ground for a more sceptical approach of the law, which further laid the ground for Oliver
Wendell Holmes’ empirical and sceptical definition of law.
Rule scepticism
All the American Legal Realists share ‘rule scepticism’. They say that rules clash with each other and are
too vague meaning we don’t know what the law is in all cases.
Thus, they say we should look at the outcome of the cases not the rules as looking at the outcome is the
best way of predicting what the law is. Thus, the law is based on empirical reality just like the
experimental sciences. In the same way that we can say that water boils at 100 degrees by the outcome of
experiments, we can say what the law is by the outcome of cases.
For example, Cohen seeks a ‘scientific account of legal happenings’ and wants to redefine concepts in
terms of ‘verifiable entities’. He says rules are meaningless unless they predict how cases will be decided.
Llewellyn: “Beware of paper rules”: - Actual decisions can falsify what textbooks think are the rules. -
Thus, the way to say what the law actually is, is to simply look at the facts (empirical evidence of the way
cases are decided) and nothing else [he says we should look at “Factual terms. No more”]
They say studying the rules in textbooks is not the best way of predicting what the law is.
 Oliver Wendell Holmes
Distinguished judge and thinker.
Described as the intellectual inspiration and spiritual father of the American Realism Movement.
He was sceptical of the ability of general rules to provide the solution to particular cases.
Gave credence to the role of judges in judicial decision making.
Defined law in terms of its consequences and what seemed to demolish the analytical certainty and any
connection between law and ethical ideals.
Sowed the seeds for Realism in a paper called, “The Path of Law”.