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Legal Realism - American Realism and The Scandinavian Realists

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71 views5 pages

Legal Realism - American Realism and The Scandinavian Realists

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Ankit Jindal
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Legal Realism – American Realism and the Scandinavian Realists

Unlike the sociological school, legal realism is mostly unconcerned with the ends
of the law. The movement is known as the“realist” movement for it aims to study
the actual workings of law and rejects the traditional defination which regard
enacted the law as the only true law.
One of the most important aftermaths of the Industrial Revolution was the
increased tendency towards socialization amongst the people. It was recognized
that to ensure justice, it is important to strike a balance between the overall
welfare of the society and the protection of individual liberties. Thus,it was
opined that the society is an important element in an individual’s life and vice-
versa. This can be said to be the basis of the various sociological approaches
towards the study of law.
One such sociological approach is legal realism. The realists study the judgments
given by the courts of law and even consider the human factor involved while
delivering the said judgments.

It can be divided into two schools of thought- American Realism and the
Scandinavian Realists.

American Realism
The ultimate aim of American realism is to reform the law.They recognize the fact
that the same cannot be done without understanding it. They are interested in
studying the law “as it is” and not “as it ought to be”. This is something that they
have in common with the positivists. Furthermore, they seek to understand the
law by taking into consideration the sociological factors. They adopt an empirical
approach to the study of law.
The American realists put too much emphasis upon the role of judges in law.
According to them, the law is what the judges decide through their judgments.
This particular tendency is due to the fact that judges have played an important
role in the development of the American Constitution and subsequent laws.
American realism studies the human factors involved in law. In fact, it strongly
emphasizes the importance of studying such human factors. Some of the noted
American Realists are as follows:
Gray (1839-1915)
John Chipman Gray is considered to be one of the “mental fathers of realist
movement”. Although known to be an analytical jurist, Gray considered the
judiciary, and not the legislature, to be the most important source of law. He
admitted the crucial role played by “non-logical” factors, such as personality and
prejudice of the judge while delivering the judgments. Gray is complimented for
laying down a solid groundwork upon which many of the most important ideas of
American Realism are currently resting.

Justice Holmes (1841-1935)


Oliver Wendell Holmes J. is famous for his “bad man’s theory” which looked at
law from a criminal’s perspective. Law, according to him, is meant for the
potential criminals or the “bad man”. He took note of the various definitions of
law based on principals of ethics, morality and natural law and rejected all of
them stating that the bad man only cares about what the courts will do if he
commits certain acts. Such predictions or “prophecies” regarding the actions of
the courts is known as the law.
He believed in the complete separation of law and morals. He was interested in
studying law “as it is”.Legal history, according to him, should only be studied to
analyze the relevance of certain historical laws in contemporary times. His
definition of law as ‘prediction’ resulted in the increased importance of litigation
and lawyers in the field of law.
His approach towards law can be said to be empirical and pragmatic. Through his
literary works and the writings as a judge of the Supreme Court of America,
Holmes brought about a significant amount of change in the overall attitude
towards the law.

Jerome Frank (1889-1957)


Frank insisted upon the existence of two groups of realists.While one group is
sceptical about legal rules providing uniformity to law, the other group is sceptical
about the establishment of facts before the trial court, in addition to the
scepticism about legal rules. Frank identified himself as a member of the second
group.
According to him, law involves the application of certain rules of law to the facts
of a case by the judge. He expresses his scepticism about the accuracy in the
binding of a fact by a judge and remarks that, in most judgments, it is dificult to
distinguish between the facts found by the judge, the rule of law applied to them
and the subsequent combination of both, the facts as well as the rules.
Frank emphasizes the uncertainty of the law. Precedents and codified law,
according to him, are made under the false belief that law should be certain. He
was of the opinion that judges and lawyers should accept the fact that law is
uncertain and should not strictly adhere to the precedents and codified laws.
Such strict adherence to precedents and codifications in order to ascertain the
law only provides a false sense of security to them and is actually quite harmful
and dangerous.

Carl N. Llewellyn (1893-1962)

Llewellyn recognized law as an institution. According to him, law is an extremely


complex institution in society. It owes its complexity to the use of a number of
precedents and ideologies in the formulation of legal principles. He further
establishes the concept of “law-jobs” wherein law has two basic functions in
society:to facilitate group survival; to engage in a quest for justice, eficiency and
richer life.He further expounded upon the achievement of such “law-job
ends” using “legal tools”. He established the concept of “craft” as a minor
institution. “Craft”, according to him, refers to the skill and “knowhow” among a
group of specialists who perform certain jobs within an institution. Such group or
body of specialists continuously develops its skills from time to time and then
passes them over to the next generation through education and practical
example. He described the legal profession as a profession involved in the
practice of such crafts with the juristic method being the most important one
amongst them.

Scandinavian Realists
Professor Dias is of the view that there is no “school” of Scandinavian Realism
since the people belonging to such a group have certain difierences amongst
themselves. The approach of the Scandinavian realists towards law is more
abstract and philosophical, unlike that of American Realism. It strongly criticizes
the metaphysical ideas of law.
Scandinavian realists have played an important role in rejecting the ideas of
the school of natural law. Some of the noted Scandinavian Realists are as follows:

Hagerstorm (1868-1939)
Axel Hagerstorm is regarded as the spiritual father of the Scandinavian Realists.
He was a philosopher who strongly criticized the metaphysical foundations of law.
Much of his work is a critique of the errors in juristic thought and writing. His
analysis is conceptual, historical and psychological and not empirical, like that of
American realists. He reviews the attempts made by various jurists to find
empirical foundations of rights and rejects all of them. He stressed upon the
psychological significance of right.
According to him, “One fights better if one believes that one has right on one’s
side.” He extensively studied the Greek and Roman law in his quest for the
historical basis of rights. He believed that just like classical law, modern law is also
ritualistic in nature.
According to him, the relation between law and ritual is just like that between
liquor and its container (bottle). One cannot drink the container, but, it is
necessary in order to be able to drink the liquor.Hagerstorm rejected the ideas of
good and bad. He denied the existence of such objective values.

Olivercrona (1897-1980)
Law, according to Prof. Olivercrona, does not require any specific definition. He
sought to investigate the law and not the nature of law since such an examination
of the nature of law would require an assumption to be made with regards to
what it is. He insisted on examining facts rather than making assumptions.
According to him, the law has a “binding force” so long as it is valid. The moment
it loses its validity, it loses its binding force.He rejected the ideas of “binding force
behind the law” and “the” binding force of law. He further stated that such
binding force is not vested in the “will of the State” or the unpleasant
consequences if the law is broken. The binding force is present in its validity and
the moment it is declared as invalid, it loses its binding force. He further believed
that the term “right” is a hollow word and legal problems can be solved without
using the concept of rights.

Ross (1899- 1979)


Alf Ross was a Danish jurist who deliberated upon the normative character of law.
He distinguished between normative laws and descriptive laws which are found in
the books. He did not believe in interpreting the law in the light of social facts and
expressed concerns regarding the validity of the law. Like all legal realists, his
ideas too are concerned with legal orders and the position of the courts.

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