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Realist School

The Realist school of jurisprudence focuses on judicial decisions and how judges determine the law rather than predefined legal rules. It originated with Axel Hagerstrom and includes both American and Scandinavian branches that emphasize the psychological and social aspects of law over formal legal concepts.

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Realist School

The Realist school of jurisprudence focuses on judicial decisions and how judges determine the law rather than predefined legal rules. It originated with Axel Hagerstrom and includes both American and Scandinavian branches that emphasize the psychological and social aspects of law over formal legal concepts.

Uploaded by

Suneet Kapoor
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Realist School

Realist school, or Realism, is that school of jurisprudence which is


more concerned with the scientific observation of lawmaking and its
functioning, rather than the ends of law. The Realist School of
Jurisprudence combines Analytical Positivism and sociological
ideologies.
According to the Realist school of jurisprudence:
 Law is defined in terms of judicial decisions, not as a set of rules.

 Law originates from judges, so the law is determined by what the


courts do, not what they say.

Axel Hagerstrom is regarded as the founder of the Realist school.


This school is also known as the Uppsala School of Jurisprudence, a
branch of the Sociological School, and the left-wing of the
Functional School.

Realist school of jurisprudence are classified into two types:

 American Realist – Scholars not only learned from their


own experiences, but they also watched and absorbed
lessons from the judgments of their peers. Holmes, Gray, and
Jereme Frank are the main supporters of the American Realist
School.

 Scandinavian Realists – Scholars relied only on their own


personal experiences in this area. Olivercrona, Lundstedt,
Ross, and Hagerstrom are the main exponents of the
Scandinavian Realist School.
Features of the Realist school include:
 Denouncing traditional legal rules and concepts, focusing on what
the courts actually do to reach final decisions.

 Law’s predictability depends on the specific facts before the court in


a particular case, making it uncertain.

 Supporting an emotive approach rather than a formal, logical, or


conceptual approach.

 Placing greater emphasis on the psychological aspect, as law deals


with human behavior and the convictions of lawyers and judges.

 Opposing the value of legal terminology (jargon) as a means of


suppressing the uncertainty of law.

 Evaluating law based on its effects, rather than its ends.

American Realism
American Realism combines the influences of both the Analytical
School and the Sociological School. It focuses on the decisions made
by judges in court and the impact of judge-made laws on society.
The main jurists of American Realism are:
Justice Oliver Holmes
 He was a renowned Realist and former judge of the American
Supreme Court.

 He proposed the “Bad Man Theory,” which suggests that only the
“bad man” can predict the actual law accurately.
 According to Holmes, a judge’s concern is to deliver justice in the
case before them, and if that requires a creative interpretation of
existing rules, they should resort to it.

 Justice Holmes believed that judges and lawyers are well acquainted
with the historical, social, and economic aspects of law.

 He favored a pragmatic approach to law, where judges and lawyers


interpret the law as it is, without considering “what it ought to be.”

John Chipman Gray


 According to Gray, “law is what the judges declare and it includes
the rules that the judges of the court lay down for determination of
legal rights and duties of man.”

 Laws made by legislators are ‘dead words’ of the statute, and courts
put life into them through judicial interpretation.

Karl Llewellyn
 He was a professor of law at Columbia University.

 He gave the “Law Jobs Theory.”

 He described the basic functions of law as ‘law-jobs.’

 Law is an institution that is necessary in society, which is not


comprised only of rules but also contains ideologies.

 Law has jobs to do within a society, which are: (a)The disposition of


the trouble case, a wrong, grievance, a dispute. (b)The preventive
channeling of conduct and avoidance of troubles. (c)The allocation
of authorities and arrangement of procedures. (d)The organization of
society as a whole so as to provide integration, direction, and
incentive. (e)Juristic method for task handling.

Jerome N. Frank
 He was a Judge in the United States Circuit Court and also worked
as a professor of law at Yale Law School. His main work includes
“Law & the modern mind.”

 He gave the “Father’s Symbol Theory.”

 As a child puts his trust in the power and wisdom of his father to
provide an atmosphere of security, similarly, people put their trust in
human institutions like the judiciary for a sense of security. Father
symbol ~ to provide an aura of security.

 According to him, the certainty or uncertainty of law is a legal myth.


Judges do not make the law; instead, they discover it.

 Law being continuous, uniform, certain, and invariable is a legal


myth.

 Decisions of judges are the outcomes of their personal convictions,


likes, dislikes, emotion, etc.

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