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Table of Contents

write an essay on american realist school of jurisprudence


Meaning of realism:-.

Reasons for the establishment of realist schools:-

Type of the realist schools:-

American realist school: holme’s view:-, gray’s view:-, frank’s view:-, conclusion:-, share with friends:.

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American Realism in Jurisprudence

Index of Article (Click to Jump)


What is american realism.

American realism is made up of analytical positivism and sociological approaches. It is broken down as:

It is believed to be of adjudication rather than the mechanical concept of law. According to American legal realists, it is beyond the adjudication and more about the legal principles and not controversial facts. Legal realism brought about a huge revolution to the concept of early law and took it beyond the written legal codes and systems, and extended to social relationships and cultural approaches. Their focus has been on the significance of human will and imperfection during the enactment process.

Definition of American Realism

Instead of calling it a school of thought, American realism is termed as a movement. It is because the whole concept has not been definite, and there is no fixed approach to it.

According to Friedman,

Realist school prefers to evaluate any part of the law in terms of its effects.”

Roscoe Pound

According to Roscoe Pound,

Realism is the 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 they ought to be.”

History of American Realism

When the orthodox classes made unrealistic claims during the late 19th century in the United States, several scholars and jurists attacked the concepts and legal approaches. This led to the rise of legal realism.

Therefore, American realism is the strong challenge made towards the classical legal and orthodox claims that were not supported by politics.

The school of legal realism is segregated into two parts:

Scandinavian Realism

American realism.

As the name suggests, Scandinavian realism was formed in the Scandinavian countries and other parts of Europe while American realism existed in the United States of America. Both the schools didn’t treat law as lifeless and implemented radical empirical approaches to the study of law. They studied law as one evaluates cause and effect in a relationship.

‘Oliver Wendell Holmes’ introduced the concept of American realism in jurisprudence, and he is known as the ‘Spiritual Father of American Realism Movement’ . In his paper, ‘The Path of the Law’ , he provided the first approach to realism in the year 1987.

The Movement of American Realism

American realism is not a theory or a set of definite systems; it is a movement or a historical phenomenon. Even though it is one of the schools of legal realism, it is not called a formal school of thought.

This movement commenced in the United States in the 19th century when Franklin D. Roosevelt was the President.

The concept of American realism is known as the last element of sociological jurisprudence. It studies various aspects of law after its execution and its impact on the target element, hence it is known as realism. Some jurists such as Llewellyn do not accept American realism as a separate branch of jurisprudence. According to them, it is regarded only as a movement and not a theory.

Characteristics of American Realism

Difference between American Realism and other Schools of Jurisprudence

American realism and legal positivism.

Even though both these concepts are completely different from each other, there is one similarity. The views of jurists of both the schools are similar on the point of ‘law as it is’ and ‘law as it ought to be.’

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. Some jurists have refrained from giving the realism movement status of an independent school of jurisprudence. They think that it deserves the status of a new methodology.

American Realism and Natural Law

As the name indicates, it states that laws are enacted by God, or the universe or nature. However, the realist school differs from this opinion and states that judges or jurists create the law and the legal system. They are based on different aspects. Natural law is based on morality and ethical principles. But according to realists, the law is made by human beings who are qualified who are known as jurists or judges.

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Realist School Of Jurisprudence


Jurisprudence is the law’s eye; it provides the law with an understanding of the world in which it operates. To put it another way, it’s a way of connecting the law to its time and place, and the more jurisprudence there is in a specific region, the more relevant that system’s law is to its time and place. [1]

The Realist School of Jurisprudence is the only school of thought that views law as arising largely from judges. Scholars believe that Legal Realism , being a component of the sociological approach, should not be formalized as a distinct school of law. Legal realism, as a movement in legal thinking or as a concept of law, rejects the idea of natural law because it does not believe in unchanging principles of justice, and it also opposes essential models of the law since, for realists, the meaning of legal concepts does not derive from the legislature but rather from an observation of law in operation. This school is commonly referred to as the “left-wing” of the functional school of legal thought.

Unlike the sociological school of thought, the Realist School of jurisprudence has little interest in the purposes of legislation. As defined by Roscoe Pound: fidelity to nature, precise reordering of things as they are, as opposed to what one imagines them to be or what one thinks they ought to be.

The Realist School of Jurisprudence will be the focus of this article. But first, let’s take a look at the definition and history of jurisprudence.

Definition of Jurisprudence

A look at its origins can help us better comprehend the meaning and definition of the term jurisprudence. It is the English translation of the Latin term ‘jurisprudentia’, which means ‘jurisprudence’. The word’s literal definition is “the study, knowledge, or expertise associated with the law.

There have been several definitions of jurisprudence throughout history. When it comes to Roman law, morality overrode the authority of judges or legislators to enact laws since the ethics of natural law had supreme authority. [2] Salmond describes ‘Jurisprudence’ as the “Science of the basic principles of civil law.” Jurisprudence, therefore, deals with a certain kind of law, namely civil law or state law. In the administration of justice, courts follow a set of rules. It has distinct characteristics that set it apart from all other forms of law. [3] The definitions of jurisprudence are valid in their own way, hence there is no one definition of jurisprudence.

History of Jurisprudence

The history of the idea of law and justice may be traced back to Rome and the Indian subcontinent. Since then, it has gone through various periods of growth and development, from ancient times to the present day.

The Dharmashastra writings, a collection of ancient Indian scriptures, include some of the first references to the subject of jurisprudence. There was a strong belief in dharmas and morality throughout these periods.

Later, in the days of ancient Rome, these ideas were refined even further. They used the same kinds of legal systems that we have now. In addition to this, citizens were also subject to a variety of oral laws, traditions, and rules. The Roman Empire spawns a variety of legal traditions. The legal profession evolved and grew more scholarly.

School of Jurisprudence

Jurisprudence is the study of law as a theory and as an experiment. It examines the origins of law and its concept. The law has a wild idea. It is understood in different ways by different people. Every individual has a different understanding of the law.

There are basically 5 schools of Jurisprudence: –

Philosophical School

Natural law is another term for the Philosophical school of jurisprudence . The philosophical approach focuses on the relationship between law and the goals it seeks to achieve, as well as the logic behind the creation of a certain rule. The law, according to renowned legal scholars, is neither a personal direction of a ruler nor a concern for the creation of documented necessity. According to them, the law is the consequence of human reason, and its purpose is to advance and celebrate human individuality.

Analytical School

The analytical school of jurisprudence was founded by John Austin, and as a result, it is also known as the Austinian School. The analytical school of jurisprudence focuses on the current state of law. It aims to examine how the fundamental principles of law are applied in a particular legal system.

This school places a high value on the relationship between law and the state. They see the law as an order issued by the Sovereign, i.e., the State. This school isn’t interested in the law’s history or future; instead, it studies the law as it is now.

Historical School

The historical school is based on the idea of rules created by humans. According to the saying, “Law is formed for and by the people,” this suggests that the law should be updated to reflect society’s evolving demands. Moreover, every one of us is more aware of our own needs than anybody else.

The Historical School of Jurisprudence relies on people’s habits and customs, which evolve as their wants and requirements change. Additionally, it is referred to as the continental school of Jurisprudence. According to this school, judges do not create the law and it has no divine origin.

Sociological School

This school’s mission is to fill the gap between the legal system and everyday life in society. Every issue and every development in society was examined from a legal viewpoint at this institution. Law is a social phenomenon, and it has some kind of direct or indirect relationship with society. The importance of balancing the welfare of the state with the welfare of individuals was acknowledged by the Sociological School of Jurisprudence .

Realist School

Emotions have a large role in legal decisions. This school is referred to as the Realist School since the law is seen to be a fact in this school’s thinking. This school is concerned with the authority judges’ judgments and their mindset. This school is founded on the viewpoints of attorneys and judges, as well as the application of their thought processes. When it comes to justice, this school evaluates the viewpoints of both sides in a given situation.

Realist School of Jurisprudence

In reality, there is no such thing as a realistic school. ‘Realism’ is a term for a movement in law that includes both thinking and action, relating to the world as it actually operates. In the Realist school of jurisprudence, the law is studied in its real workings, rejecting the usual concept that it is a collection of rules or principles. Rather than being defined by a set of rules, the law is defined by the judge’s decision.

Realists, sarcastically define law as a good reason for a bad man. Simply stated, the bad guy cares nothing about legal theory and is solely concerned with the practical implications of his actions. Analytical and social jurisprudence together up the realism school of jurisprudence.

Realist school of jurisprudence are classified into two types:

American Realism [4]

Analytical and sociological schools are combined in the realist school of jurisprudence, analytical which is the judgment delivered by judges in the court, and sociological because of the influence of judges-made legislation on society.

John Chipman Gray (1839-1915)

John Chipman Gray is regarded as one of the “founding fathers of the realist movement” and is credited with inventing the term “realist.”

According to Gray, the court, rather than the legislature, is the most significant source of the law. According to him, a judge’s mentality and bias play a significant impact in his decision-making. He laid the groundwork for a more critical approach that continued to emphasize the role of non-logical variables in making judgments.

According to Gray, the courts are the ones who give life to the statue’s words.

Oliver Windell Homles (1841-1934)

He made a point of stressing that the practice of law was a combination of both experience and logic. Known for his “bad man’s theory,” Holmes saw law from the standpoint of someone who would commit a crime. As he sees it, the law is for the criminals or the “bad man”. To evaluate what the law really is, one should go to a bad person’s interpretation of it, since they will be able to accurately calculate what the laws enable them to do and work within those bounds.

His emphasis was on the practical and empirical aspects of the law. The primary goal of studying legal history was for him to begin the process of re-evaluating the value of laws that had been formed through time. There must be a clear separation between law and ethics. Holmes’ vision of law put both court and professional lawyers at the center of the legal stage.

Jerome N. Frank (1889-1957)

There are two kinds of realists, Frank said. While one group is skeptical of legal standards ensuring consistency in the law, the other group is skeptical of the establishment of facts before the trial court. Frank admitted that he belonged to the second group.

Frank focuses on the unpredictability of the legal system. He argues that rules and written law are based on the false assumption that the law should be clear. He said that judges and practitioners should recognize the reality that the law is ambiguous and should not rigorously stick to precedent and defined rules. He emphasized the necessity of lawmaking by examining the facts of each case in light of the changing societal contexts.

Carl N. Llewellyn (1893-1962)

The term “realism” refers to a shift in legal thinking and practice. When it comes to this approach, legislation is seen as a tool for achieving social goals, and every aspect of the system must be examined for its purpose and impact. Society’s view of the world changes more quickly than the law does.

Realists are skeptical of established legal principles and concepts. It focuses more on what the courts and individuals are really doing. According to Realism, the law is defined as “a broad prediction of what the court will do.”

Scandinavian Realism [5]

In contrast to American Realism, the approach used by Scandinavian realists to law is more abstract and philosophical. It sharply opposes the metaphysical concepts of law. Scandinavian realists had an essential role in opposing natural law theories.

Axel Hagerstorm (1868-1939)

The founder of Sweden’s realist movement. As a philosopher, he was outspoken in his criticism of the law’s foundational principles. The flaws in legal reasoning and writing are often discussed in his writings. There have been several efforts by jurists to identify the empirical basis for rights, but he rejects all of them.

He emphasized the psychological importance of doing the right thing. “One fights more effectively if one feels that one is fighting for what is right,” he asserts. In his search for the origins of rights, he delved deep into Greek and Roman legal systems. He held that contemporary law, like ancient law, is ceremonial.

Law and ritual are like whiskey and its bottles,” he claims. In order to sip the whiskey, one must first remove the bottle. In Hagerstorm’s mind, there was no such thing as good or evil. There is no such thing as objective values, according to him.

Karl Olivecrona (1897-1980)

Olivercrona believes that there is no need for a clear definition of the law. The nature of law, on the other hand, needs a hypothesis about what it is, therefore he decided to explore the law instead. Rather than assuming, he insisted on investigating the facts.

“Binding forces behind the law” and “binding forces” were concepts he opposed. Furthermore, he emphasized that such binding force is not based on the “intent of the State” or the terrible consequences that would follow if the law is violated.

Alf Ross (1899-1976)

Jurist Alf Ross of Denmark was interested in the moral nature of law. It was his interpretation of the law that was based on the realities of society. For him, it’s all about judge-made laws and America’s way of doing things. Norms of conduct and Norms of procedure were categorized by him as two distinct types of legislation or standard. He raised doubts about the legislation’s legitimacy and disbelief in applying social realities to the interpretation of the law.

A.V. Lundstedt (1882- 1957)

According to him, justice is nothing more than an abstract concept that is nothing more than imagination. When it comes to studying law, he thought that only physical facts should be examined. As a result, he mocked ideas like rights, responsibilities, and the application of the law. He opposed the concept of laws being designed to accomplish justice, and he referred to such laws as ‘material law’.

According to him, rather than focusing on what is right or wrong, judges should consider what is best for society as a whole. In lieu of justice, he used the word social welfare.

Drawback of the Realist School of Jurisprudence

One of the most significant effects of the Industrial Revolution has been an increase in the need for human contact. To achieve fairness, it was determined that a balance must be struck between the general well-being of society and the preservation of individual liberty. As a result, many people believe that society affects an individual’s life in positive ways and vice versa. The many sociological approaches to the study of law may be considered to be based on this. Legal realism is one such social approach. Court decisions are studied by realists, who also evaluate the human element involved in delivering them.

[1] Avni Nagaria, Justice V.R. Krishna Iyer: Our Heritage, Universal Law Publishing Co., 2011 Edition, An Address by Justice V.R. Krishna Iyer, p.109





This article has been written by Ashutosh, 2nd Year BBA. LLB student at Bennett University.

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Abstract: –

Through this article, I have thrown light on the realist school of jurisprudence along with various aspects in it. Also, I have given a brief description on Jurisprudence and on some other schools other than realist school. My message through this article is to throw light on various branches of schools and what all points they have under it.

Introduction: –

Jurisprudence has been originated from the Roman Civilization like other branches of knowledge. The word ‘Jurisprudence’ in Latin terms means ‘Jurisprudentia’ or ‘the knowledge of law’. The meaning in which the term Jurisprudence conveys in these modern times is actually a result of the course of evolution. The Romans never confused law with morality in practice, but under the basis of a theory, we could not find a proper difference between them. The main idea of Jurisprudence was defined by Ulpian, the great Roman jurist. He said that Jurisprudence is “a knowledge of things, divine and human, the science of right and wrong.” Romans used to believe that there was some connection between or right to which the law should conform and all the jurists should know about it clearly. This is the reason when another great jurist Paulus said that “law is not to be deducted from the rule, but the rule from the law.” [1] The definitions given by these great jurists was actually vague, or inadequate, and thus they deserved special status and identity because they have beautifully portrayed an idea of a legal science which exists independently of the actual institutions of a society.

Jurisprudence basically means a study or philosophy of a legal nature. There have been various philosophers and jurists who have given their ideas differently and widely as per their knowledge on it. In the eighteenth century, Modern Jurisprudence came into effect where some branches of law like natural law, civil law and the law of nations. Various Jurists like Hobbes, Blackstone, Bentham and Austin have beautifully portrayed the idea of Jurisprudence using their knowledge and skills and a wider approach to the law. [2]

Schools of Jurisprudence: –

Jurisprudence is the study and findings of law. It contains the cause and idea of law. Law is basically an idea that is unpredictable. Its comprehension varies from one individual to another. Everybody has an alternate perspective of the law. [3] There are five schools of Jurisprudence. They are: –

The Realist School: –

Realist School is a type of school which focuses on decisions. It is a branch of sociological approach. They believe that law is only on official action. Roscoe Pound has defined Realist School as: “Fidelity to nature, accurate reordering of things as they are, as contrasted with things as they are imagined to be, or wished to be or as one feels they ought to be.” [4]

Llewellyn has said that realism or realist school is not a school of jurisprudence. Instead it may be called as a Sociological Jurisprudence. Not only that, sometimes it is also called ‘left wing of the functional school’. There is a small difference among these two things in one respect that they are little concerned with the ends of law. This school is known as ‘realist’ because it focuses on approach that studies law as it is in the actual working and its effects ahead. This school rejects traditional definition of law and also avoids any dogmatic formulation and fully concentrates on decisions given by the courts.

Factors Responsible: –

Talking about the factors that are hugely responsible for the formation of this school or realistic approach, there are several points coming up. Firstly, this system ideologically reflects on the influence of pragmatic philosophy that has originated in America. Basically, this school was given accreditation and its evolution is through American School of Jurisprudence. Secondly, the most important aspect which seems to its formation is relating to the organisation of judiciary in the country. It is stated that the American Supreme Court is the supreme authority where the final judgements are taken and abided too. In the lower courts, the judges are appointed and they are influenced for taking irrelevant or underrated decisions because of which they do not get any support from the people. The existence of state judiciary has led to immense increase in judgements and law. All these approaches have made the jurists to focus only on courts and not on law.

Characteristics of Realist School: –

These are some of the points that are clearly mentioning about the characteristics of the Realistic School or Realism Movement: –

Criticisms: –

The approach made has been largely criticised on certain grounds. Firstly, the realists and jurists have underestimated the importance of the legal principles and rules regarding the law. They used to think that law never was, but always was a puzzle of unconnected decisions. Secondly, their concentration is ideally on litigation, but the point is there is a bigger point that never comes in front of the courts. Thirdly, these realists and jurists had also launched a serious attack on the juristic complications and myth of certainty.  But, in actual sense we found out that a huge amount of certainty and bunch of transactions regulated under this basis. Fourthly, they all have put strong emphasis on a factor which is human in nature. No doubt, it plays quite a huge part but that does not mean that the judicial determinations are the result of a Judge’s personality. Lastly, this approach of realism of American Jurists is mostly based upon and actually concerned with their own setting and thus not giving a universal method. These methods can only be applied at a society where social forces have played a bigger role in making law as common law systems. The analysis of the Scandinavian Jurists does not suffer from these types of weaknesses. Olivecrona, has emphasised on a nature which contains an applicability that is universal in nature.

Contributions: –

Although there are some criticisms against this system, there are certain contributions which have been made by this movement which was a really big thing in the end. The approach towards law that was made by them was actually in the positive spirit and also, they are not at all concerned with any of the theory of justice or natural law. They all believe that certainty of law is a myth. They have also even plead for an approach which is comprehensive and also examining all the factors that lead to the conclusion in the reaching of a cleaner decision. [6]

Conclusion: –

Jurisprudence is a systematic study of law. It is a kind of science which investigates the creation, application, and basic requirements of laws. It is the investigation of variety of theories and methods of insight in respect to the law.

There are five schools of jurisprudence. Although the schools of the law have largely tried to remove some of the shortcomings in the law making and procedures, there has to be an analysis and a study to clear the claim of the purpose and rationale behind the law. Moreover, the enactment of the laws must be looked accordingly to a practical approach other than a theoretical aspect.

[1] B.N. Mani Tripathi’s Jurisprudence- The Legal Theory

[2] . (last visited 6 th June, 20:36)

[3] . (last visited 6 th June, 22:05)

[4] . (last visited 6 th June 23:00)

[5] . (last visited 7 th June,11:45)

[6] V.D. Mahajan’s Jurisprudence & Legal Theory

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I am pursuing BBA-LLB from Amity University, Kolkata. I love to read books and my favorite author is Agatha Christie. My dream is to become a successful cyber crime lawyer and provide justice to all the victims of cyber crime. My main motto in life is ‘Courage is Destiny’.

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Realist School of Jurisprudence

Table of Contents

Realist School of Jurisprudence (Lewellyn, Karl. J.N. Frank. Oliverconna. Alf Ross):

The reason behind the origin of the realist school of jurisprudence is the social engineering theory of Pound’s because in his theory he emphasized the fiction of judges, courts to harmonize the conflict between and maintain social order in society.


American Realism

A combination of analytical and sociological schools in analytical law as it is i.e. the decision given by judges in the court on the other hand, sociological because of the effect of judges made law on society.

KARL LLEWELLYN [1893-1962]

JEROME N. FRANK [1889-1957]

Classical work ‘ law and the modern mind’ 1930 Frank made fact-finding by the court as the central theme of his realism. He exploded the myth that law is continuously uniform, certain, invariable. According to him, the judge does not make law instead they discover it.



Scandinavian Realists

1. axel hagerstorm :[1868-1939].

2. Karl Olivecrona [1897-1980]:

3. Alf Ross [1899-1976]:

LUNDSTEDT [ 1882- 1957]:

CRITICISM against realism :

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Jurisprudence Notes

Related Papers

35 U. RICH. L. REV. 55 (2001).

Mark C. Modak-Truran

A Pragmatic Justification of the Judicial Hunch argues that Judge Joseph Hutcheson's famous hunch theory of judicial decision making provides a compelling solution to the daunting task of judicial decision making in an age noted for an increasing explosion of factual complexity and an increasing awareness of the indeterminacy of law. Hutcheson claims that judging is not a matter of deductive logic as advocated by strong legal formalists or technical reasoning as advocated by law and economics. Rather, the best way of determining the just result is for judges to consider all the relevant facts and legal precedent and to wait for a hunch or a jump-spark connection between the question and decision. In other words, judges should expose their minds to the full complexity of the case and use their intuition or imagination to determine the just decision. Surprisingly, the hunch theory seems both familiar to how we understand practical decision making in general but foreign to how we usually understand judicial decision making. It seems to suggest that judges arbitrarily decide cases based on a subjective feeling that cannot be verified. This article, however, claims that William James's pragmatism provides an epistemological justification of the hunch theory that saves it from arbitrariness. James's pragmatism not only justifies judges relying on hunches but also provides pragmatic conditions that discipline judges against relying on idiosyncratic hunches. Finally, given this epistemological justification, this article argues that Hutcheson should no longer be understood as a legal realist.

write an essay on american realist school of jurisprudence

Social & Legal Studies

Ronen Shamir

Brian Leiter

Abstract: This essay sets out the main elements of the revisionary and philosophical interpretation of the jurisprudence of American Legal Realism that I have developed in a series of articles over the last decade.

Ronald Dworkin describes an approach to how courts should decide cases that he associates with Judge Richard Posner and Professor Cass Sunstein as" a Chicago School of anti-theoretical, no-nonsense jurisprudence."'Since Professor Dworkin takes his own view of adjudication to be diametrically opposed to that of the Chicago School, it might seem fair, then, to describe Dworkin's own theory as an instance of protheoretical, nonsense jurisprudence.

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases.

(2013) 1 Theory and Practice of Legislation 33-57

"This paper presents a reappraisal of Vilhelm Lundstedt's theory of legislation, and argues that it has a lot to contribute to theories of modern legal systems. Lundstedt argued that the conceptual apparatus of legal theory – notions of rights, duties, culpability, responsibility, binding legal rules – is fundamentally incapable of contributing anything to our knowledge or understanding of legislation and, by extension, of law. To understand legislation, we must focus instead on its social function, and on what he called samhällsnyttan, loosely, the usefulness of the law to society, or the social benefit it provides. I argue in this paper that, contrary to the standard account, Lundstedt’s rejection of the traditional conceptual apparatus of legal thought is built on a complex theory of the nature of legal knowledge and, hence, of the reality of legal concepts. His claim that legislation must be approached from the perspective of its usefulness to society was not a normative claim in relation to how legislation ought to be interpreted, as his critics assumed, but a descriptive claim as to its nature; and as to the nature of the discretion that legal actors exercise in legislative and interpretive activities. I show that his claim has a sound theoretical basis, and makes a strong case that dealing with the complexities of law, statute and regulation that characterise legal systems today requires an approach that looks beyond internal fit, to the institutional character and social function of law."

Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law 19:3, 287-313

Donald R. Davis, Jr.

Jakob v. H. Holtermann

Andrés Palacios Lleras

Theory and Practice of Legislation, vol. 1, n.1

Pierre Brunet

We should always recall that, as Rumble emphasized, ‘the objective of the legal realists was not simply to describe and explain judicial behaviour as accurately as possible; rather, it was also to prescribe reforms for this behaviour. In other words, there is a positive, even idealistic, side to their teachings. Unfortunately, it is a side which has far too often been obscured by the militancy of their negations of traditional theories. Nonetheless, they did not wish solely to destroy; they also wished to build’.

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US Legal Realism Movement

Info: 2133 words (9 pages) Essay Published: 6th Aug 2019

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“…the life of the law has not been logic, it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed…”

(M. Lerner, The Mind and faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions).

Explain the claims being made in this statement, and their significance for legal theory, with reference to American legal realism

The U.S. legal realism movement commenced in 1881 when an American jurist, Oliver Wendell Jr. expressed that ‘The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.’  [ 1 ]  The notion of Oliver’s statement simply accentuates law is a subjective system drafted by human beings, and therefore, inconsistency is inevitable. He deemed the imperfect and incoherent outcomes of the common law adjudication are anchored in the social, political, and moral preference of the judges. Despite the legal realism movement dramatically declined after the World War II, nonetheless, it never stopped influencing on nowadays judges and lawyers perceiving law. It is essential to examine beyond the literal meanings of Oliver’s claims to comprehend the magnitude of a movement of legal studies called American Legal Realism has had impact on our common law legal system.

The Rise of Legal Realism Theory

Legal realism revolutionized the study of early law by shifting attention from the written law codes and legal systems to a social relations and culture based approach. This transformation can be described as law in action against law in books. The realists believed that the formalistic legal system did not sustain with the rapid changes of the societies, and more importantly, it became a burden of advancement.  [ 2 ]  Prior to the arisen of legal realism, law was viewed generally as mechanically jurisprudence. In other words, law was viewed as a complex system with sets of precise rules constructed by the legislature. The roles of judges were only to determine which relevant rules to be used and applied to the cases. Legal realists wanted to emphasize the importance of human will and fallibility both in the law making and interpretation processes. The legal realists generally wanted to replace formalism with a sensible approach towards law. In other words, they were leaning to regard law as made but not found. Therefore, law must be based on human experience, policy, and ethics, rather than formal logic. In addition, legal principles are not inherent in some universal, timeless logical system. They are social constructs, designed by people in specific historical and social contexts for specific purposes to achieve specific ends. Law and legal reasoning were supposed to be parts of the way to create the form of social life. Hence, they believed the development of legal realism was necessary to reflect the realities of the altering situations.

The Impact of Legal Realism on Traditional Legal Perspective

Legal Realism has fundamentally altered our conceptions of legal reasoning and of the relationship between law and society. As Hans Meyerhoff suggested:

In a contextual type of analysis such as Socrates conducted, there may be clarification and enlightenment, but there are no final answers. The analysis may clarify meanings and truths as they arise in different linguistic contexts or in different human situations, but there are no final answers because there is nothing fixed or final about the contexts or situations that we encounter in actual life.  [ 3 ]

The original legal realists wanted to understand legal rules in terms of social consequences. To better their understanding of how law functions in the real world, they attempted to unify law and the social sciences. They believed that this knowledge would enable them to reform the legal system to achieve higher efficiency and social justice. In addition, the legal realists proclaimed the ineffectiveness of both legal rules and abstract concepts. They believed rules should not be an element to decide the outcome of the cases in reality. The legal realists suggested it would alleviate the judicial decisions become more predictable when focusing on the specific facts of cases and social reality in general, rather than on legal doctrine.

Furthermore, the legal realists also proposed it was impossible to generalize judicial decisions because every judge was different and only the personalities of judges could explain their decisions. Social context, the facts of the case, judges’ ideologies, and professional consensus critically influence individual judgments and patterns of decisions over time.  [ 4 ]  It was the legal realists’ intention to replace formalistic deduction of consequences from abstract concepts with explicit policy, moral and institutional analysis.

Moreover, the legal realists argued that the traditional legal reasoning demanded by judicial opinions substantially constrained the judges. According to John Dewey, judges must combine and balance two different goals. The first goal is to choose legal rules that have desirable social consequences.  [ 5 ]  To some extent, this goal is independent of precedent, and requires a type or reasoning characteristic of social science. The second goal is ‘to enable persons in planning their conduct to foresee the legal import of their acts’  [ 6 ]  by judicial decisions that ‘possess the maximum possible…stability and regularity.’  [ 7 ]  In order to accomplish the above goals, judges must state their decisions in the form of rules that people can utilize for monitoring their own conducts. The judges therefore write opinions that seek to elaborate general principles that can be applied in a regular way to new situations. Yet, the judges may not have decided the case by applying these principles. Instead, the judges searched for principles worthy to serve as foundation for the decision. Judges therefore use one form of reasoning to reach the decision and another independent form of reasoning for justifying the decisions. John Dewey also noted ‘…[T]he logic of exposition is different from that of search and inquiry.’  [ 8 ]

The legal realists argued that judges could easily construct arguments for a ruling on either side of the case. As a result, existing doctrine may therefore be manipulative, ambiguous, and contradictory, yet still substantially hamper judges’ decisions. As illustrated in the case of Pepper v Hart  [ 9 ]  , the judicial decision provoked issue of whether it was legitimate to construe a statute by reference to essentially subjective and unreliable materials which were distant from the text which was being interpreted. As Lord Mackay pointed out, practically every question of statutory construction will involve a contention that the provision at issue is ambiguous, obscure, or leads to an absurdity. All of these efforts only complicate litigation, and add to its expense and for pretty marginal advantages.  [ 10 ]

In contrast to Legal Realism, mechanical jurisprudence embraced impartial standards. It ignored the actual intent of the parties, their particular characteristics, abilities, needs, and the social context in which the event occurred. For instance, in tort law, negligence is defined by a reasonable person standard but not by how one expected the specific defendant to act. In other words, mechanical jurisprudence tends to apply the general principles relentlessly regardless of the underlying policies or the consequences of these policies in specific cases.

The legal realists argued that it was impossible to induce a unique set of legal rules from existing precedents. According to Felix Cohen, every case was different from every other in some respect, and that judges had no alternative but to engage in ethical inquiry to determine the differences between the case at hand and the prior case that mattered.  [ 11 ]  When the legal realists argued against the practice of deducing rules from abstractions, they hoped to focus attention on the facts of specific cases and to understand the development of the law in terms of each situation. Furthermore, they argued that judges should make law based on a thorough understanding of social reality. The legal realists suggested that judges should not make value judgments in the abstract about the substantive content of the law. Instead, judges should closely examine the social context in which those affected by legal rules operate. By understanding the social context would enable judges to adjudicate disputes through situation-sense, meaning the ability to fit the law to social practice. Finally, the legal realists argued against formalistic application of rigid rules regardless of their social consequences. Judges should apply rules by looking to the goals of the rules and their social effects. In addition, legal realists believed that judges should change or modernize rules to respond to the rapid changes of social values and norms. As Holmes argued:

[I] think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious…  [ 12 ]

The question of whether judges make or find law troubles legal theorists for long time. The legal realists proposed two insights: (1)Judges exercise judgment, that is they make law; and (2)Judges are substantially constrained in the judicial process by the social and institutional context in which they act, that is they find law. The challenge of striking balance between these two insights is the most pronounced characteristic of the current state of legal theory.

I have discussed the legal realists’ approach to legal reasoning, but the next question will come to my mind – what is law then? The legal positivists will say that the law is rules given by legal authorities, and this question is best answered by a description of the relevant rules. Legal realists argue that the law is what judges say it is, and the question is best answered by the prediction about how judges will decide. Regardless, law is based to some substantial extent, on our intuitive judgments of right and wrong, fairness and unfairness. Yet, it is inaccurate to describe intuitive judgments as just opinion. In fact, judgments are inevitably the opinion of someone situated in our society with experience shared with others. Despite varies of legal theorists have been talking past each other a lot, it seems to me that we should try to figure out where we disagree and where we agree upon each other.

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