Introduction
Legal realism is a philosophy of law that is based on naturalism. It is of the opinion that jurisprudence should follow the methodologies of natural science, i.e., relying on empirical evidence. It’s all about the concept of “law in flux.”[1] Legal realism states that the law cannot be separated from its implementation and that it is difficult to interpret. This demonstrates the importance of identifying the essence of law in fields such as legal decisions issued by judges and their deference or rejection to previous precedent and the doctrine to judgment by identifying the considerations present in judicial decision-making.
The increased tendency for people to socialize was one of the most significant consequences of the Industrial Revolution. It was recognized that striking a balance between the overall welfare of society and the protection of individual liberties is essential for ensuring justice. As a result, it was suggested that society plays an important role in an individual’s life and vice versa. The various sociological approaches to the study of law can be said to be founded on this. Legal realism is one such sociological approach. Realists examine court decisions and take into account the human factor involved in making those decisions.
What Is Legal Realism?
Legal realism is a type of jurisprudence that focuses on the law as it currently exists in the real world rather than how it works in the books. To that end, it focused primarily on judge behavior and how that behavior affects judicial decision-making processes. Legal realists turned to social science ideas to understand the human relationships and behavior that culminated in a given legal result in order to understand legal actors’ decisions and actions. Legal realists argue that these cultures are historical and natural concepts that should be addressed by a variety of psychological and socio cultural hypotheses, perceiving legal concepts as being determined by human behavior, which should be empirically evaluated rather than theoretical legal assumptions.
Legal realism was a school of thought that emerged in the late 1800s and flourished alongside Progressivism in the first decades of the twentieth century. It called for a more consciously attuned jurisprudence to social realities and empirical research, challenging formalist laissez-faire approaches to the law.
As a result, all legal realists started with the belief that formalist accounts of the law were inadequate. Realism as a whole challenges the idea that law should operate as an autonomous domain, making decisions by turning its judicial eye inward to the world of legal concepts rather than outward to the society it governs. Oliver Wendell Holmes, a forerunner of realism, said, “The life of the law has not been logic: it has been experiencing.”The distinction between “law in books” and “law in action” was introduced by Roscoe Pound, who argued that one could not truly understand the law without referring to the latter.[2]
American Realism
American realism’s ultimate goal is to reform the legal system. They recognize that they cannot do the same without first comprehending the situation. They want to learn about the law “as it is,” rather than “as it should be.” This is something they share with positivists. Furthermore, they seek to comprehend the law by taking sociological factors into account. They approach the study of law from an empirical standpoint.
Pragmatism and social Darwinism came to dominate the American intellectual landscape after the Civil War, sweeping away all notions of natural law and natural rights, as well as constitutionalism dedicated to their defence. Life and thought are directed toward continuous change and adaptation to the environment for both pragmatists and social Darwinists. According to legend, an American judge seeks a result that is “substantially just” and “best corresponds with the goals of the specific law,” and then writes an opinion to give his decision the proper legal form.[3] The test of a proposition’s worth is its adaptive success (“survival of the fittest”), which is the engine of progress, not its truth in and of itself (the standard of natural law theory).[4]
Justice Gray
John Chipman Gray is regarded as one of the “mental forefathers of the realist movement.” His approach was unmistakably court-oriented, similar to that of the realists. Gray, despite his reputation as an analytical jurist, believed that the judiciary, not the legislature, was the most important source of law. He acknowledged the importance of “non-logical” factors such as the judge’s personality and prejudice in delivering the verdicts. Gray is praised for laying a solid foundation on which many of American Realism’s most important ideas are currently built.
Gray’s understanding of the law was limited to what the court had decided. Everything else, including statutes, was just a source of legal authority. “The law of the State or of any organized body of men is composed of the rules laid down by the courts, that is, the judicial organs of that body, for the determination of legal rights and duties,” he explained.
Oliver Wendell Holmes
Oliver Wendell Holmes has been termed “The Great Dissenter” because of the brilliance of his dissenting opinions, but the term has a falsely negative connotation. Justice Holmes sowed the seeds of realism. He asserted that law is not the same as mathematics. Law is nothing more than a prediction. He believes that the life of a lawyer is a combination of logic and experience. Formal deductive logic cannot explain the true nature of the law. Judges make decisions based on individual sense of right and wrong.
The law is a term that refers to such predictions about the actions of the courts. He was a firm believer in the separation of law and morals. He wanted to learn about law “as it is.” He took the perspective of a hypothetical “Bad man” facing trial in order to see how the law works in practise. As a result, he coined the term “Bad Man Theory,” which looked at law from the perspective of a criminal.
According to him, the law is intended for potential criminals or the “bad man.” He noted the various definitions of law based on ethical, moral, and natural law principles and rejected them all, claiming that the bad man is only concerned with what the courts will do if he commits certain acts. According to this theory, a bad man is better at predicting the actual law than other people. According to Holmes, the law should be viewed through the eyes of a bad man. Based on this prediction, Holmes defined law as “prophecies (ability to predict) of what the court will do in fact and nothing more pretentious.
Jerome Frank (1889-1957)
The thesis of Jerome Frank is that law is uncertain or that legal certainty is a legal myth. He refuted the myth that law is consistent, certain, and invariable, claiming that judges do not create law, but rather discover it. Frank emphasized that law is more than a set of abstract rules, and that it is rife with legal uncertainty. As a result, simply understanding how the law works requires more than a technical legal analysis. Frank was adamant about the existence of two types of realists. While one group is skeptical of legal rules that provide uniformity in the law, the other group is skeptical of the establishment of facts in front of the trial court, in addition to legal rules.
Frank stated that he belonged to the second group. According to him, law entails the judge applying certain legal rules to the facts of a case. He expresses his scepticism about the accuracy of a judge’s fact finding and observes that it is difficult to distinguish between the judge’s facts, the rule of law applied to them, and the subsequent combination of both, the facts and the rules, in most judgments.
Frank emphasises the law’s unpredictability. According to him, precedents and codified law are created under the false assumption that law should be certain. He believed that judges and lawyers should accept the fact that the law is inherently uncertain and should not be bound by precedents or codified laws. It’s impossible to know how fallible a witness will be or how persuasively he’ll lie with any certainty. Such rigid adherence to precedents and codifications in order to establish the law only gives them a false sense of security and is actually harmful and dangerous.
Karl N. Llewellyn: A Law Jobs Theory
Realism, according to Llewellyn, is a movement in legal thought and work. The main characteristics of the realist approach were outlined by Karl Llewellyn. These are the following: –
1. There must be an understanding of law in flux and judicial creation of law.
2. Because society changes more quickly than the law, there is always a need to improve the law.
3. For the sake of research, there must be a temporary distinction between is and ought.
The basic functions of law, according to Karl Llewellyn, are referred to as “law-jobs.” Law is a necessary ‘institution’ in society that contains not only rules, but also a ‘ideology and a body of pervasive and powerful ideals that are largely unspoken, largely implicit, and which pass unmentioned in the books.’ Within a society, law has a role to play.
Scandinavian Realists
Professor Dias believes that there is no such thing as a “school” of Scandinavian Realism because members of such a group differ from one another. In contrast to American Realism, the Scandinavian realists’ approach to law is more abstract and philosophical. It is a harsh critic of law’s metaphysical ideas. Scandinavian realists were pivotal in the rejection of the school of natural law’s ideas. The following are some well-known Scandinavian Realists:
Hagerstorm (1868-1939)
The Scandinavian Realists consider Axel Hagerstorm to be their spiritual father. He was a philosopher who was critical of law’s metaphysical foundations. Much of his work is devoted to exposing the flaws in legal reasoning and writing. Like American realists, his analysis is conceptual, historical, and psychological rather than empirical. He examines various jurists’ attempts to find empirical foundations for rights and dismisses them all. He emphasised the psychological significance of right.
He begins by reviewing previous attempts to determine the empirical basis of a right. “The factual basis which we are seeking cannot be found, either in protection guaranteed or command issued by an external authority,” he says, dismissing each attempt. He comes to the conclusion that there are no such facts. The content of the “idea” has nothing to do with reality: it is some kind of supernatural power over things and people. Hagerstorm then looked for a psychological explanation, which he found in the sensations of strength and power that come with the belief that one has a right.
Karl Olivercrona (1897-1980)
The practical implications of Professor Olivecrona’s perspectives on Scandinavian realism have been lauded. He stressed the importance of law school as a social necessity. He claims that law is nothing more than a “collection of social facts.”[5] He argued that laws are not orders or expressions of the state’s will, but rather “independent imperatives” issued from time to time by the state’s constitutional agencies, and that they “operate in the minds of the judge” as he makes a decision.
According to him, there is no such thing as the binding force of law; it is a myth. A person could, for example, break the law and go unpunished, but no one would argue that the law does not apply to him. According to him, the idea of a legal system’s binding force exists only in a person’s mind as a result of psychological pressures that influence his behaviour and motivate him to follow the rules, which is a legal system’s attribute.
Ross (1899- 1979)
Alf Ross was a Danish jurist who studied the normative nature of law. He, like Olivecrona, believes that law and legal concepts must be interpreted as visions of social reality, which is nothing more than man’s actual behaviour in society. He takes the American approach and accepts the court’s authority to interpret the law. Laws, in his opinion, are legal norms expressed in the form of directives addressed to the courts. These laws, or norms of conduct, can be of two types: I norms of conduct, which deal with the behavioural aspect of the law; and ii) norms of competence or procedure, which specify the procedure to be followed in determining the norms of conduct.
According to Ross, the predictability of decisions is what makes a law valid. According to valid law, “the abstract set of normative ideas that serve as a scheme of interpretation for the phenomena of law in action.” Because the courts and other legal authorities who apply the law consider these norms to be socially binding, they are effectively followed.”
A.V. Lundstedt (1882-1939)
Lundstedt opposes the concept of justice, as well as all normative aspects of the law. He considers the concept of justice to be purely metaphysical, and he considers it to be pure fantasy. He believed that only physical facts should be considered when studying law. As a result, he regarded concepts such as rights, responsibilities, and legal rules as implausible. He called laws based on the concept of natural justice “material law,” and he rejected the idea of making laws to achieve justice.
The most striking feature of Lundstedt’s realism is his assertion that law is determined by “social welfare,” which serves as a guarding motive for legal activity. As a result, judges must consider both social welfare and rights and responsibilities when making decisions. To avoid societal disruption, Lundstedt was inspired to extend the principle of strict liability to torts, contracts, and criminal law disputes.
Conclusion
Law has been a subject of philosophical reflection as a central feature of most developed human societies since the beginning of Western philosophy in ancient Greece. The realist schools of law and the major figures of the modern era—especially Hobbes, Bentham, Hart, and Kelsen—continued to shape the concerns of the twenty-first century. By approaching law in a positive light and demonstrating the futility of theoretical concepts of justice and natural law, realists have made the most significant contribution to jurisprudence. In contrast to positivists, realists believe that law is inherently indeterminable and uncertain and that legal certainty is a myth.
As Frank Jerome correctly stated, “the realist school has sought to liberate judges from the enslavement of unduly rigid legal concepts and extorted them to take into account the ground realities of social facts while deciding cases.”
References
[1] Karl N. Llewellyn, ‘Some Realism about Realism—Responding to Dean Pound’ (1931) 44 Harvard Law Review 1222, 1236.
[2]Samuel Aber, Legal Realism: An LPE Reading List and Introduction (Sept 1 ,2021, 6:45PM)https://lpeproject.org/wp-content/uploads/2020/07/Legal-Realism-Primer.pdf.
[3]Benvenuto Griziotti The Principle of Realism in American and Modern European Jurisprudence Vol 18 , The Work of the Louisiana Supreme Court for the 1956-1957 Term (Sept 1,2021, 6:50PM)
December 1957https://core.ac.uk/download/pdf/235279535.pdf.
[4] OLIVER WENDELL HOLMES, JR. and the NATURAL LAW, (Aug31,2021, 9:45PM),http://www.nlnrac.org/critics/oliver-wendell-holmes.
[5] SAEESH NAIK THE CONCEPT OF SCANDINAVIAN REALISM (Sept 1 , 2021 , 6:00PM) http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Saish.pdf.
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