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“Law Master’s” Publication
“Legal Realism”
Prof. S.D. Bhosale
(..5 d..)
Legal Realism or Realistic School
QUESTION BANK
Q. 1 Do Judges make law? Explain in context with Realism School.
SHORT NOTES
1. Realism School.
SYNOPSIS
I) Introduction and meaning of Realism -
1) Certainty of law is myth-
2) Realism is anti-thesis of idealism -
3) Psychology in understanding law-
4) Law in terms of its effect -
II American Realist-
1) Justice Holmes-
2) Gray-
3) Llewellyn -
4) Jerome Frank -
III) Scadinavian Realism -
1) Hagerstrom -
2) Olivercrona -
3) Alf Ross-
IV) Realism in India –
I) Introduction and meaning of Realism -
The realist movement is an outcome of a branch of the Sociological School.
According to Realists, ‘law emanates from judges’. Therefore, the law is what courts do
and not what they say.
In 1930 some American Jurists like Holmes, Cardozo and Gray stressed the need
to study law as it actually works and functions. These jurists were called ‘Realists’ and
their approach the ‘Realist School of Jurisprudence’
According to Realists, ‘judge-made’ law is only genuine law’, and they do not give
any hide to the laws enacted by legislatures.
Realists believe that ‘certainty of law is a myth’. According to Jerome Frank,
“unless and until the court actually decides, there is merely guesswork of lawyers as to
what court will decide”. Realism is the antithesis of idealism. According to Goodhart, the
main characteristics of Realist Jurisprudence are as follows-
1) Certainty of law is a myth-
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“Law Master’s” Publication
“Legal Realism”
Prof. S.D. Bhosale
The realistics believe that there can be no definiteness about law as its predictability
depends upon the set of facts which are before the court for decision. Law is applied only
when a court decides the case actually. In other words, unless and until the court actually
decides the matter before it, the law is merely a myth; it becomes certain after the decision.
2) Realism is the anti-thesis of idealism -
The school does not support the formal, logical and conceptual approach to law. In
other words, the Realist movement is an anti-thesis of idealism, and it studies law “as it is”
and not “how it ought to be”. Judges act on emotive factors rather than logical grounds.
3) Psychology in understanding law-
The Realistputs great stress on the psychological approach to the proper
understanding of law as it concerns human behaviour and the convections of the lawyers
and judges.
4) Law in terms of its effect -
The realist school prefers to evaluate any part of the law in terms of its effects.
II American Realist-
‘American realism’ is a combination of the analytical positivist and sociological
approaches. It is called an ‘analytical positive’ because it considers law ‘as it is’.
A number of jurists have developed this school. We will discuss some of them as follows–
viz-.
1) Justice Holmes-
In 1897, Justice Holmes sown the seeds of the Realist movement in his published
paper. In which he put forth the story of bad men. He says that if one wishes to know what
law is, he will view it through the eyes of a bad man because a bad man is only concerned
with what the court would do to him if he does certain wrong. Thus, the bad man would be
concerned not with what is there in law books but with what courts would decide in fact.
2) Gray-
Gray defined ‘law’ as “what the judges declare”. According to him, the personality
and personal views of judges play important roles in Judgments.
3) Llewellyn -
According to Karl Llewellyn, realism is “a movement in thought and work about
the law”. For him, realism distrusts traditional legal rules and concepts. ‘Realism’
concentrates more on what courts and people are actually doing. It is related to reality,
therefore, called a ‘realist’. Realist, according to Llewellyn, does not accept the view that
the legal rules only are important in decision-making, but they believe that personality and
personal views also play an important role in decision-making.
4) Jerome Frank -
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“Legal Realism”
Prof. S.D. Bhosale
He was a Judge of the United States Court of Appeal. He believed that the judges
and not legislatures are the real lawgivers.
According to him, judge-made law is the actual law and law made by the
legislature is probable law or a guess of future decisions. He contends that until the court
gives its judgment, no law on that fact is yet in existence.
Frank believes that rules and statue are not the basis of a judge's decision, but prejudice,
hunches, emotions, bias etc.., of judges affect the judgment.
III) Scandinavian Realism -
The writing of Swedish philosophers is the basis of Scandinavian Realism.
Philosophy of Hagerstrom, Olivecrona, Alf Ross etc., lead the Scandinavian Realism.
1) Hagerstrom -
He is treated as the founding father of the realist school in Sweden. He rejects
the idea of objective value. He advocates for an examination of the actual use of the legal
concepts, their analysis and analysis of the mental attitude involved in the conception of
law in present times.
2) Olivercrona -
He advocates for the study of law as a social fact. For him, ‘law is nothing but a set of
social facts.
3) Alf Ross-
According to him, law and legal notions must be studied and interpreted in the
context of the actual behaviour of man in society. He accepts the authority of the court to
expand the law. For him, laws are the legal norms in the form of directions addressed to
the court.
IV) Realism in India -
In India, realistic school has not been accepted in its real sense. The recent trend
of public interest litigation has somehow widened the scope of realism in India. Public
Interest Litigation is also called ‘Social action litigation.’
In fact, judges in India are not free to lay down rules as per their wishes, but they
are confined by the constitution to interpret laws enacted by legislatures. Constitution has
entrusted the work of legislation to legislators. Therefore, judges have to act within the
limits of the constitution and interpret laws enacted by the legislature or other bodies.
In India, enacted laws, precedents and rules of equity are indispensable parts of the
judicial system.
Even though realist philosophy is not recognised as such in India, courts have ample
scope to interpret laws in their contextual and social settings. There is a number of
landmark judgments which have laid down new legal norms. In Keshavanand Bharti’s
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“Legal Realism”
Prof. S.D. Bhosale
case, Supreme Court introduced the ‘basic structure Doctrine’. In Maneka Gandhi’s Case
court has expanded the scope of the ‘right to life and personal liberty. The rule of precedent
incorporated in Art. 141 of the constitution recognises judge-made law. Thus in India, to
some extent, Realist ideas are applied.
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