American Legal Realism | Criticism on Theory of American Legal Realism | Legal Realism

American Legal Realism | Criticism on Theory of American Legal Realism | Legal Realism


American legal realism

American legal realism; The realist movement is a part of sociological approach and it is sometimes called “left wing of the functional school”. It differs from the sociological school as it is little concerned with the ends of law. It concentrates on scientific observation of law in its making and working. The movement is called “realist” as it studies the law in its actual working and rejects the traditional definition of law that it is a body of rules and principles which are enforced by the courts. 

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Definitions of legal realism 

“The theory that law is based, not on formal rules or principles, but instead on judicial decisions that should derive from social interests and public policy.” American legal realism which flourished in 20th century was espoused by such scholars as John 

Chipman Gray, Holmes, Karl Llewellyn and Oliver Wendel. The American Legal Realists comprised a loose grouping of legal academics and practitioners such as Llewellyn, Holmes, Oliphant, Frank etc. 

Historical Background 

The formalist image of law has never gone unchallenged and the earlier part of the twentieth century saw throughout the western world various forms of what may even be called a Revolt against Formalism. This was not simply a revolt against an idealized deductive model of more nuance forms of formal justification. This critique was frequently associated with the new approaches in the sociology of law and sociological jurisprudence, involving people such as Roscoe Pound in the US, Francois Geny in France, Rudolf von Jhering, Eugen Ehrlich and various proponents of free law finding in Germany. 

Explanation: 

A largely instrumental and empirical approach to law developed in the first half of twentieth century in USA (American Legal Realism). It rejects the view that law is a determinate body of doctrine or that precedents and statutes determine the outcome of legal disputes. 

All realists agreed that the law and legal reasons are rationally indeterminate, so that the best explanation for why judges decide as they do must look beyond the law itself.

  • Key Points

  1. Law is a creation of judiciary.
  2. Society changes faster than law, there is a need to examine the law constantly.
  3. Rules of law are not principal factor to decide the cases, there is human factor.

Concerns of Realists

The American Legal realists were concerned with changing legal education, legal practice and the court processes. This was seen as important

  1. For the training of lawyers.
  2. For an improvement in the predictability of the judicial decision.
  3. For the flexibility that judges should show in updating the law to deal with changing social condition.

Realist Movement:

The advocates of the Realist movement concentrate on the decisions given by the law courts. They not only study the judgements given by the judges but also the human factor in the judges and lawyers. They study the forces which influence judges in reaching their decisions.

  • Criticism on Realist Movement

Uncertainty: The critics of American realism point out that the followers of the realist school put too much emphasis on uncertainty of law. Law is not only always uncertain and there is no much in the whole of the legal system which makes law certain. A lot of transactions are carried out every day with the certainty of law. Otherwise the work of society will come to a standstill. The lawyers of this approach have exaggerated the human factor in judicial decisions. The background of judge who gives decision has some effect on it but not that much because he has to base his decision on the law as a whole. The scope for this discretion is not much.

Approaches to American Legal Realism

This movement is a combination of two approaches.

  • Positivist Approach

It is positivist in a sense that it regards law as it is and not as it ought to be. The ultimate aim is to reform that law, but that cannot be done without understanding.

  • Sociological Approach

Law is product of many factors and therefore realists are interested in those sociological factors which influence the law. Their interest on the social conditions of law as well as the effect of law on society. To them the law is what judges decide. That is partly due to the fact that judges have payed a very important role in the growth of the American Constitution and law. The approach of the realists is essentially empirical.

View of Different Jurists 

  • View of John Chipman Gray

The importance of personal element of judges while giving decisions is not new, but the contribution of the realists lies in the fact that they have put much emphasis on it. Emphasis on this point has been put by Gray in these words: “Suppose, chief Justice Marshall had been as ardent a Democrat as he was a Federalist. Suppose, instead of hating Thomas Jefferson and loving The United States Bank, he had hated the United States Bank and loved

Thomas Jefferson, how different would be the law under which we are living today.”

  • View of Lord Lloyd

American Realism a revolt against Formalism, Lord Lloyd points out that in the nineteenth century and at the start of twentieth century, laisse faire was the dominant creed in America. That creed was associated with certain formalism and the social sciences. That was marked by a reverence for the role of logic and mathematics and a priori reasoning as applied to philosophy, economics and jurisprudence, with but little urge to link them empirically to the facts of life. however, empirical science and technology are increasingly dominating American society and with that development arose an intellectual movement in favor of treating philosophy and the social sciences as empirical studies not rooted in abstract formalism.

  • View of Oliver Wendell Holmes

Holmes believed that the,

“Law should be defined as a prediction, most specifically, a prediction of how the courts behave”.

Holmes view of law as “prediction” placed both litigation and the professional lawyers in the centre of the legal state. He emphasizes on the fact that what courts may do, there was much in American system which made this approach acceptable to American lawyers.

  • View of Jerome Frank

Jerome preferred to call himself a “constructive legal sceptic” rather than a realist. He emphasized the fact that law is not certain. He first describes the “conventional” view of law which acknowledge that judges often make law. He thinks that it is not proper for the judges and lawyers to stick to the myth of certainty in the name of precedents and codifications.

  • View of Carl N. Llewellyn

Llewellyn believed that law is little more than a putty in the hands of judge who is able to shape the outcome of a case based on personal biases. He outlines the principle features of the realist approach as follows:

  1. There has to be a conception of law in flux and of the judicial creation of law.
  2. Law is no means to social ends and every part of it has constantly to be examined for its purpose and efforts and judged in the light of both and their relation to each other.
  3. Society changes faster than law and o there is a constant need to examine how law meets contemporary social problems.
  4. There has to be a temporary divorce of “is” and “ought” for purposes of study. This does not mean that ideas if justice and teleology are to be expelled altogether but to be put aside while investigating the law that how it works.
  5. The realists distrust the sufficiency of legal rules and concepts descriptive of what court does.
  6. The realists do not believe in traditional theory that the rules of law are the principal factors in deciding cases. It is absurd to define law solely in terms of legal rules.
  7. They believe in studying law in narrower categories than has been the practice in the past.
  8. They feel that part of the distortion produced by viewing the law in terms of legal rules is that rules cover hosts of dissimilar situations where in practice utterly different considerations apply.
  9. They insist on the evaluation of any part of law in terms of its effects and on the worth whileness of trying to find its effects.

Criticism on Theory:

The realists have been accused of confusing explanation and justification. If legal science were an empirical science, the chief method would be explainable through cause and effect. If it were a rational and normative science, its chief category would be justification through reason and consequences.

  • Professor Yntema

In 1961, Prof. Yntema himself a leading realist, attempted to assess the present and future of the realist movement. After stressing both the importance and influence of legal realism upon America law, he conceded that a major defect of the realist movement had been the neglect of the more humanistic side of law, particularly revealed both in its neglect of the comparative and historical aspects of law and the tendency to place overemphasis upon legal practice. This was a great failure to distinguish between what is trivial or ephemeral on the one hand and what is of wider import on the other.

  • H.L.A Hart

British legal theorist H.L.A. Hart dealt what many scholars saw as a decisive blow to legal realism, by attacking the predictive theory of law that many realists had taken over from Holmes. 

Hart pointed out that if a law is just a prediction of what courts will do, a judge pondering the legal merits of a case before him is really asking, “How will I decide this case?” 

As Hart notes, this completely misses the fact that judges use legal rules to guide their decisions, not as data to predict their eventual holdings.

Confusion b/w Law & Ethics

Realists create a confusion between law and ethics. This is the reproach which the realists make to the classical, normative conception. Their misgivings are due to their own mistakes, their confusion of legal with moral norms. The former requires some external behavior and can be compiled with whatever may be the motives. The latter always takes notice, for example, of a selfish or altruistic aim.

Approach Of American Jurists:

The approach of American jurists is conditions by the circumstances prevailing in that country and what they have said is not capable of universal application. The realists have determined the importance of the legal principles and rules. They regard law as a jumble of unconnected decisions.

In their eyes,

“Law never is, but is always ought to be.”

Their view is that law can not be predicted. Law is merely a series of application and execution. That is not correct. The very use of the term application shows the prior existence of the principles and rules. 

Moreover, they concentrate only on litigation although there is a part of law which never comes before the courts.

Conclusion:

Lord Lloyd writes that the realists have done good work in emphasizing both the essentially flexible attitude of the judiciary towards developing precedent, even within the four corners of a rigid doctrine of precedent and the operation of concealed factors in judicial

lawmaking. The realists have played their part in bringing about a changed outlook and attitude towards the legal system and the function of the law and the legal profession in society which has made itself felt in all but the most traditionalist of the law schools of the common law world.

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