AMERICAN LEGAL REALISM

WHAT IS REALISM?
The realism is an approach concerned with the act rather than ideas and feelings. According
to the realists, law consists in a collection of decisions rather than a body of rules. Theories of
legal realism look on law as the expression of the will of the state through the medium of the
courts. They make the distinction between law in books and law in action. Roscoe Pound has
defined realism as, Fidelity to nature, accurate recording of things as they are, as contrasted
with things as they are imagined to be, or wished to be or as one feels to be or ought to be.
Realists uphold that only judge made law is genuine law and they do not give any importance
to laws enacted by legislatures. Realists believe that certainty of law is a myth. Realism is
anti thesis to idealism.
MAIN CHARACTERISTICS OF REALIST SCHOOL
Prof. Goodhart has stated the following five characteristics of Realism :
(1) The realists believe that there can be no definiteness about law as its predictability
depends upon the set of facts, which are before the court of decision.
(2) They do not support the formal, logical and conceptual approach to law because the
court while deciding a case reaches his decision on emotive rather than logical
grounds.
(3) They lay greater stress on psychological approach to the proper understanding of law
as it is concerned with human behaviour and convictions of the lawyers and judges.
(4) Realists are opposed to the value of legal terminology for they consider it as tacit
method of supressing uncertainty of law.
(5) The realist school prefers to evaluate any part of law in terms of its effects.
Apart from above some other characteristics may be added.
(6) Realism is the combination of positivist and sociological approaches. As in
positivism, the law is seen as it is and not as it ought to be. It also emphasises the
importance of same aspects of society.
(7) The emphasis of this school is centered on the judge; the law is what judges decide.
Hence, doctrine of precedent is the main source of law.
(8) Realists approach is empirical.
(9) Legal realism claims that the class of available legal materials is insufficient to
logically require a unique legal outcome in most cases at the appellate level (the local
Indeterminacy thesis). In such cases, judges make new law in deciding legal disputes
through the exercise of a law making discretion; and
(10)
The judicial in indeterminate cases are influenced by the judges political and
moral convictions and not by legal considerations.
REASONS FOR THE EMERGENCE OF REALISM
There are mainly three reasons for the establishment of realist school of law.

Firstly, it was established as a reaction against sociological jurists who were emphasizing the
social effect of law.
Secondly, it was established to ignore the theory of interest as given by Ihering and the theory
of Social engineering as advocated by Pound.
Thirdly, this school was established to point out the importance of courts and importance
Reaof the Judges the human factor in the judges and the lawyers.
Fourthly, as an historical matter, legal realism arose in response to legal formalism, a
particular model of legal reasoning that assimilates legal reasoning to syllogistic reasoning.
According to the formalist model, the legal outcome logically follows from the legal rule
(major premise) and a statement of the relevant facts (minor premise).Realists believe that
formalism understates judicial law-making abilities insofar as it represents legal outcomes as
entailed syllogistically by applicable rules and facts. For if legal outcomes are logically
implied by propositions that bind judges, it follows that judges lack legal authority to reach
conflicting outcomes.
DIFFRENCE BETWEEN REALIST AND SOCIOLOGICAL JURISPRUDENCE
Realists are very close to sociological jurisprudence. Some Jurists treats Realist approach to
law is a part of the sociological approach. Therefore, many times it is called as the extreme or
left wing of sociological or functional school. The sociological method has brought legal
science into intimate relation with the facts of social life and made jurists recognise law as a
product of social forces. By accepting this theme, Realism has gone to the extent of
denouncing traditional legal rules and concepts and concentrates more on what the courts
actually do in reaching the final decision in the case before them. For them, law is a
generalized prediction of what the courts will do.
However, it is different from sociological school in many respects. It differs from sociological
school in that this school neither study social effect of law nor it start with any a prior like
balance of interests or social engineering, rather it concentrates on a scientific observation of
law in its making and working.
BEGINNING OF AMERICAN REALIST MOVEMENT
American Realist movement began in the late 19th century and grew tremendously during the
1930s from the philosophical views associated with William James and John Dewey. In the
initial days movement was inspired by some juristic efforts particularly John Chipman Gray
and Oliver Wendell Holmes and reached in climax in the 1920s and 30s through the work of
Karl Llewellyn, Jerome Frank, and Fliex Cohen.
They believed that a true science of law demands a study of law in action that means judgemade law and that Law is as Law does. The realists made a departure from the approach of
positivists and naturalists by avoiding their conceptual approach and adopted empirical
analysis to show how judges really decide cases and make the law.

American realism is also influenced by pragmatist and behavioural approach to social

institutions.
American were also influenced by the European movement of the Living Law which was
initiated by Ehrlich propagating the body of rules of conduct and habits most of which never
come before the courts. The American realists were tending to place the decision of the law
courts in the centre of law and concentrate the definition of law decisions of courts.
In modern writings the term realism or legal realists which was very common in old days
but it is replaced by, as Jerome Frank has preferred the term, experimentalists or
constructive skeptics. He described his own attitude as one of constructive skepticism.
RELATIONS OF REALISTS WITH ANALYTICAL POSITIVIST & SOCIOLOGICAL
SCHOOL
American Realism though is a distinct approach to the law, but it is a combination of the
analytical positivist and sociological approaches. It is positivist in the sense that it first
considers the law as it is, understands what law is and its ultimate aim is reform. They are
sociological, in the sense that they consider the law as it stands is the product of many
factors. Therefore they are partly sociological. However, they are concerned with law rather
than with society. They share with sociologists an interest in the effects of social conditions
on law as well as the effect of law on society, but they emphasize the need for a prior
revelation of the actual behaviour of lawyers.
CHARACTERISTICS OF AMERICAN LEGAL REALISM
American Legal realism consist of a variety of ideas as enunciated by various realist
philosophers, however the various forms taken by the philosophies of the different realists
rest on following common features:
(a) American realism calls in question the certainty of the law. Law is not something
certain, it is not what the judges have said, but what they will do(Holmes)
(b) Legal realism attacks conceptualism. There is a distrust of traditional rules by the
realists.
(c) Society is continuously changing and therefore law must change with it.
(d) Legal realism separates the is (reality) from the ought (perception).
(e) Law is not just the statute but the interpretation of the statute.
(f) Law is what the law does.
(g) Legal realism puts a stress on evaluation of the law in terms of its impact and effects
on society.
(h) Law is just a prediction of what the court will do.
(i) Their approach to law was not concerned with any kind of ideology or theory of
justice.
CONTRIBUTION OF AMERICAN LEGAL REALISM

The Realists have made valuable contribution to jurisprudence American realists opened up a
new way in the study of law. The following are the most important point which can be
designated as contribution of American Realists:
Their main contribution lies in the fact that they have approached law in a positive spirit and
demonstrated the futility of the theoretical concepts of justice and natural law.
The realist introduces studies of case law from a point of view which distinguished between
rationalization by a judge in conventional legal terminology of a decision already reached and
the motivations behind the decision itself. Prof. Friedman pointed out that this approach in its
true perspective is an attempt to rationalize and modernize the law both administration of law
and the material for legislative change by utilizing scientific methods and the results reached
in those fields of social life with which this social ideals which direct a given legal order. But
by the use of these scientific instruments the law can be made more rational, articulate,
scientific and objective.
The inquiry into the motivation behind decisions opened up further lines of investigation. So,
the study of the personalities, upbringing and psychology of judges and jurymen assumed
significance.
The realists also study the different results reached by courts within the framework of the
same rule or concept in relation to the facts of the cases, and the extent to which the courts
are influenced in their application of rules by the procedural machinery which exists for the
administration of law.
Legal realism rightly points out that certainty of law is a myth. They plead for a
comprehensive approach and examination of all the factors that lead in reaching a decision.
Jerome Frank has rightly pointed out that Realist School has sought to liberate the judges
from the enslavement of unduly rigid legal concepts and exorted them to take into
consideration the ground of realities of social facts while deciding the cases.
CRITICISM OF AMERICAN REALISM
The realist theory causes confusion in the public mind as to what the law really is. Is it statute
law? Or judge made decisions? This situation tends to bring the law into disrepute.
If the law is what the courts will decide, then statute law is not law and also judge-made law
(past decisions) is also not law because these past decisions may be overruled.
Frank had contended that until the court has given its judgment, no law on that fact is yet in
existence. H.L.A. Hart argue that the fact that the judge has the last word does not mean that
there is no rule. He has provided the analogy of the Umpires in cricket matches. Umpires are
the final authority regarding decisions, but many a times they do not declare a batsman
L.B.W. even though he had covered the stumps and was rapped on the pads; but this does not
mean that there is no L.B.W. rule.

Critics have argued that legal realism is nothing but a modified form of Austins Imperative
Theory. Like Austin, the realist also looks at the law as a command of the sovereign, but his
sovereign is not Parliament but the Judges.
It was criticized that Realists have neglected that part of law which never comes before the
court. They have exaggerated the human factor in judicial decisions. The realist theory of
jurisprudence is confined to local judicial setting of American and has no universal
application in other parts of the world.
CONCLUSION:
This realism is an approach concerned with the act rather than ideas and feelings. Law
consists in collection of decisions rather than a body of rules. Theories of legal realism look
on law in books and law in action. At best, it may be called a branch of sociological
jurisprudence.