Scribd
Upload
294 views5 pages

03 - American Realism

The document discusses the American Realist school of jurisprudence. [1] It emerged in the 1930s as American jurists like Holmes, Gray, and Frank argued that law should be studied as it operates in practice rather than in theory. [2] They believed that judges, not legislatures, are the true lawmakers as law is determined by court decisions. [3] Major figures like Holmes emphasized examining law through experience rather than logic.

Uploaded by

TASKBIZ
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
294 views5 pages

03 - American Realism

The document discusses the American Realist school of jurisprudence. [1] It emerged in the 1930s as American jurists like Holmes, Gray, and Frank argued that law should be studied as it operates in practice rather than in theory. [2] They believed that judges, not legislatures, are the true lawmakers as law is determined by court decisions. [3] Major figures like Holmes emphasized examining law through experience rather than logic.

Uploaded by

TASKBIZ
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 5

AMERICAN REALISM OR AMERICAN REALIST SCHOOL

Realism means stating the things as they are. And not as they are
imagined to be or wished to be.

It is the latest branch of sociological jurisprudence. Realist regarded law


as coming out from the judges i.e. on decisions of law courts. Law is what
courts do and not what they say. According to them, judges are the lawmakers.

There are two trends of the realist school:

 American Realist School


 Scandinavian Realist School.

It was around 1930‟s that some American jurists notably Holmes, Gray and
Jerome Frank raised their voice to stress on the study of law – as it operates and
functions i.e. law in action, law as experience.

The important factor which led to the birth of this thought was the
organisation of the judiciary in the country. Supreme Court is the final authority
to interpret the law. The lower courts are influenced by the decisions. These
jurists wanted to emphasis on the actual working and effect of the law.

The main characteristic features of realist jurisprudence are as follows:

 Realists uphold only Judge made law as genuine law.


 They do not give any importance to laws enacted by legislatures.
 Realists think there can be no certainty about the law - as its predictability
depends on the collection of facts to be decided by the courts.
 They do not favour formal legislative strategy.
 They lay greater stress on the psychological approach to the proper
understanding of law - as it is concerned with human behaviour and
convictions of the lawyers and Judges.
 They concentrate on how the law is working.

OLIVER WINDELL HOLMES

Oliver Holmes is the main supporter of the realist school. His emphasis is on
action. As Holmes would have it,

“The life of the law has not been logic – it has been experience.”

According to him, if the person who was before the court is as an accused or
wrongdoer – The concern of the judge is to do justice in the case. If that
required a creative interpretation of existing rules, he should certainly do it.

Holmes asserted that where there is a gap in the law, judges are required
to take account of precedents and must decide the best way to proceed. The
result may be some innovative decision.

Thus, according to Holmes, the law is what courts (or other officials) do,
not what they say. Until a court has passed a judgment on certain facts, there is
no law on the subject yet in existence. And the opinion of a lawyer is only a
guess as to what the court will decide.

GRAY

Another American Realist School was Gray, 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.
Further, he said that the courts put life into the dead word of the statutes.

JEROME FRANK

In his book titled „Law and the Modern Mind (1930)‟ Frank explained his
theory of law and jurisprudence. His entire thesis is centered on one point viz.
Law is uncertain, the certainty of law is the legal myth.

According to him,

 It is a myth that law is continuous, uniform, certain and invariable.


 He asserted that judges do not make the law instead they discover it.
 A judge‟s decisions are the outcome of his life history. His friends, his
family, vocations, schools, religion and all other influential factors.
 Law can be made by evaluating the facts of every individual case
under the changed social conditions.

In this regard, he has given the Father‟s Symbol theory. The child puts his trust
in the power and wisdom of his father to provide an atmosphere of security.
Likewise adults put his trust in human institutions.

According to LLEWELLLYN, he implies that the concept of society changes


faster than the law. According to him, if one is investigating what the law does
and how it works – then the idea of justice and other considerations should be
kept aside.
SCANDINAVIAN REALISM

Besides the American realist movement, a simultaneous wave of realism


also developed in Sweden. Olivercrona, Ross and Hagerstorm are the main
supporters of this realism.

For Scandinavian Realists, law is purely in terms of observable facts and


the study of such facts. It is the science of law like any other science concerned
with facts and events. Thus all the concept of binding force or validity of law,
existence of legal rights and duties – are dismissed as fantasy of mind.

The basic difference between the American Realist and the Scandinavian
Realists is that;

 Americans are more interested in the practical working of the judicial


process. They stress on the need for factual studies.
 Whereas, the Scandinavian are concerned with the theoretical aspect of
legal system.

REALISM IN THE INDIAN CONTEXT

The legal philosophy of the realist school has not been accepted in India.
Because, the Indian Social life is different from the American life style. The
Indian legal system cannot ignore the existing legislative statutes and
enactments. They are indispensible part of the judicial system of India. The
Constitution of India itself provides ample scope for the judges to take into
consideration the hard realities of socio – economic and cultural life of Indian
people. Judges have to formulate their decisions within the Constitutional limits
using their interpretative skills. However they are free to overrule the previous
decisions on the ground of inconsistency, vague, change of conditions etc.

Moreover, the recent trends in the public interest litigation has widened
the scope of judicial activism to a great extent.

AMERICAN REALISM AND SOCIOLOGICAL APPROACH

Realists are primarily focused on the execution of the law; its functioning and
logical observation. They are not concerned with the „ends of law‟ as it is done
in the sociological approach.

AMERICAN REALISM AND NATURAL LAW

Natural Law jurists states that laws are enacted by God, or the universe or
nature. Natural law is based on morality and ethical principles

However, the realist school differs from this opinion and states that judges or
jurists create the law and the legal system. The law is made by human beings
who are qualified who are known as jurists or judges.

__________________________________________________

You might also like

pFad - Phonifier reborn

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


Alternative Proxies:

Alternative Proxy

pFad Proxy

pFad v3 Proxy

pFad v4 Proxy