REALIST MOVEMENT

-AMERICAN REALIST THEORY

-SCANDINAVIAN REALISM
 Introduction:-
                               The realist approach in the field of

jurisprudence is a relatively modern one. Its prime

home is the US. The thesis of realists is based on the
notion: “Law is what the psychology of courts
determines – the aggregate of the item of judicial and
official actions”. “Law is what the judges decide.”
They emphasize the element of uncertainty in law and
part played by the personal characteristics of the judge.
 Meaning of realism:-
                                                 The Realist movement concentrates on
scientific observation of law in its meaning and working. This movement is
named as a ‘realist’ because this approach studies law as it is in actual
working and its effect.
     In the word of Professor Pound:
                                                                  “By realism, they mean fidelity to
nature, accurate recording of things as they are as contrasted with a thing as
they are imagined to be, or wished to be or as one feels they ought to be.”
 According to Llewellyn,
                                              “Realism is not a school but it can be called as a
branch of sociological School.1It concentrates on the actual working and
effect of law and is, therefore, called the realist school.
 Reasons for the establishment of realist schools:-
 There are mainly three reasons for the establishment of the
Realist School of law, as follows;
 The first reason is that it was established as a reaction again the
sociological jurists who were emphasizing the social effect of
law.
 The second reason was that it was established to ignore the
theory of interest as given by the Ihering and the theory of Social
Engineering as advocated by Pound.
 The third reason is that this school was established to point out
the importance of Courts and the importance of judges- the
human factor is the judges and the lawyers.
 Type of the realist schools:-
                                                       There are two types of the

Realist School. The first one is the American Realist

School and the second is the Scandinavian Realist School.
     Holmes, Gray, and Jereme Frank are the main supporters

of the American Realist School. Scandinavian realism is a

philosophical critique of the metaphysical foundation of
law. They have put forth a philosophical justification.
Olivercrona, Lundstedt, Ross, and Hagerstrom are the main
exponents of the Scandinavian Realist School.
 American realist school: Holme’s view:-
                                                                             As a judge of the supreme
courts, Holmes played a fundamental part, in both writing and his long
tenure, in bringing about a changed the attitude of the law. His emphasis
on the fact that the life of the low experience, as well as logic, and his view
of the law as predictions of what the court will decide stressed the
empirical and parametric aspect of law. And he said that, if one wishes to
know what the law is, then one should view it through the eyes of a bad
man who is only concerned with what will happen to him if he does certain
things. The traditional description of law is that it consists of rules from
which deductions are made. He says, “But if we take the view of our
friend, the bad man, we shall find that he does not care straws for the
action or detection, but that he does want to know what Massachusetts of
English Courts is likely to do in fact.
           Thus, according to Holmes, the law is what courts (or other officials)
do, not what they say. Until a court has pass judgment on certain facts,
there is no law on the subject yet in existence, for opinions of a lawyer is
only a guess as to what the court will decide.
 Gray’s view:-
                                      Another pioneer of American realist

school was Grey, who made a distinction between the law and
source of law. According to him, the law is what the judges
decide.  Everything else, including statute, is the only source of
law until interpreted by a court. He defined ‘the law’ as follows:
“the court of the state or any organized body of men is
composed of the rules which the courts, that is, judicial organs
of that body laid down for the determination of legal rights and
duties”. He said of statutes that, “the courts put life into the dead
word of the statutes, other sources including expert opinion,
customs, and public policy”.
 Conclusion:-
                              It cannot be denied that the realist

movement has made very valuable contributions to

jurisprudence. Their approach to law is in a positive
spirit and they are not concerned with any theory of
justice or natural law. They say that ‘certainty of law’ is
a myth. They plead for a comprehensive approach and
examination of all the factors that lead to reaching a
decision.
THE SCANDINAVIAN REALISTS
 Despite the unfortunate ignorance in the common law world both of
the working of the legal systems in the Scandinavian countries, and
of their legal literature, common lawyers have slowly become aware
of a significant movement in legal thought in the Nordic countries.
Understanding of this movement increased as works by Scandinavian
jurists were published in English. As knowledge of the methods and
concepts of Scandinavian law increased, the writings of these jurists
became more meaningful.
 Their law is less codified than the rest of the Europe and, as a result,
more judge oriented. This comes out particularly in the writings of
Ross though, to a lesser extent, in those of Olivecrona.
 The Scandinavian penchant for social welfare is apparent in the
writings of Lundstedt too.
 Hagerstorm (1868-1939)
 Axel Hagerstorm is regarded as the spiritual father of
the Scandinavian Realists. He was a philosopher who
strongly criticized the metaphysical foundations of law.
Much of his work is a critique of the errors in juristic
thought and writing.
 His analysis is conceptual, historical and psychological

and not empirical, like that of American realists. He

reviews the attempts made by various jurists to find
philosopher empirical foundations of rights and rejects
all of them. He stressed upon the psychological
significance of right.
 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
 CONCLUSION
 The law is Judge made law and little codification
happens in these countries. Law can be explained only
in terms of observable facts and the study of such facts
which is the science of law. Therefore, law is a true
science with any other concern with facts and events in
the realm of casualty. Law is nothing but the very life
of mankind in organized groups and the conditions
which make possible peaceful co-existence of mass of
individuals and social groups and the co-operation for
the other ends than mere existence and propagation