REALISM

The American Realist movement grew during the 1930s from the philosophical views
associated with James and Dewey. Both rejected ‘closed systems, pretended absolutes
and origins’ and turned towards ‘facts, actions and powers’.
The realists studied law on the basis of rejection of ‘myths and preconceived notions’ and
on the acceptance of recording accurately things as they are. A true science of law
demands a study of law in action. ‘Law is as law does’.
According to the realists, law consists of a body of generalisations about the conduct of
judges or officials.
Holmes: he viewed law as a set of consequences. He said that: “The life of law has been,
not logic, but experience”. He treats rules as “prophecies” of future decisions.

Law is, according to the realists jurists, what officials (judges) do; it is not to be found in,
and cannot be deduced from, the mere rules by which those officials are guided. An
investigation of the unique elements of cases, an awareness of irrational and non-
logical factors in judicial decision-making, an assessment of rules of law by an
evaluation of their practical consequences- these are some of the characteristics of the
realist approach.
The main concern of the realist movement was the desire to discover how judicial
decisions were reached in reality, which involved a playing down of the role of
established rules, or the ‘law in books’, to discover other factors that contributed towards
a judicial decision, in order to discover the ‘law in action’.
In addition to the above, they were of the opinion that judicial decision-making would be
more amenable to the needs of society if judges were more open about the non-legal
factors which had influenced their decisions.

Its Origins and Growth:

In the 19th and the beginning of the 20th century: The realist movement is a combination
of pragmatism and sociological approaches. In America, the doctrine of judicial review
and the due process clause were the centre of the legal system in courts and were
therefore, realism’s concentration of attention on the judicial process.
Law was thought of as more or less as a fixed body of rules and principles to be studied
in terms of their semantic meaning or other historical context. Llewellyn described this
period as that of “formalistic style”, as a period in which there prevailed a predilection to
rely on traditional authorities and on the deductive method in decision making..
Consequently, the trend of legal thinking took a sharp turn into a different direction.
It is therefore important to note that this trend of legal thinking gave birth to legal
realism. For example, in the US today, analytical and historical schools have been
assailed and supplanted by a new idealism which considers law as an instrument for the
attainment of social objectives. It is held that fixity and certainty of law must give way,
wherever necessary, to overriding considerations of individual justice or social need.
There is a swing of pendulum “from the legal norms to the decision, from official opinion
to the true reasons, from conceptual jurisprudence to facts of law and social interests.
This new orientation in legal philosophy is styled as legal realism.
All in all, the origins and growth of realism i.e. American realism came into the scene as
a result of being pointed out that the traditional analysis of legal problems in terms of
remedies, rights and interests, and conceiving law as a body of rules were “a block to
clear thinking about things legal”, and generated ambiguity. Hence, this approach saw
another suggestion being suggested that legal science should concern itself with law
conceived as human behaviour instead of a mere body of rules and concepts.

Realism in the American Legal System:

Holmes
• This founder of the American realist movement said that the life of law is
experience, not logic. He treats rules as “prophecies” of future decisions. He
observes: “The prophecies of what the courts will do in fact, and nothing more
pretentious are what I mean by the law”.
• According to Holmes, if we wish to know the law, we should look at it through the
eyes of a bad man who is only concerned with what will happen to him if he does
certain things. Thus, Holmes views laws as a set of consequences. We can
understand the law when we can predict with some certainty the outcome of the
behaviour of the courts when presented with legal problems.
• Furthermore, to Holmes, analysis must exclude moral questions. He thus urged
the deliberate exclusion from one’s study of law of ‘every word of moral
significance’.
• It is also important to note that Holmes draws attention to the significance of a
judge’s interpretation of the public policy underlying the law, the judge’s
‘inarticulate major premise’. He emphasises, as a counter-balance, the need to
insist upon the process of law-making as the business, not of the court, but the
legislative bodies within the community. The tendency towards judicial law-
making has to be restrained; citizens have the right to make, through their
elected representatives, whatever laws they consider to be necessary. Hence,
judges must be reminded of their duty to ‘weigh’ considerations of ‘social
advantage’ when enunciating or interpreting rules.

Holmes argued that the training of lawyers ought to lead them, and judges, ‘habitually to
consider more definitely and explicitly’ the advantages to society of the rules they lay
down. the working of the legislature and the courts should not be seen in isolation from
the societies from which they spring and from which alone they derive their significance.
• It should also be pointed out that Holmes view should not be interpreted as
implying a rejection of legal theory. The pragmatism which he embraced is, in
itself, a theoretical interpretation of perceived reality.
• All in all, any analysis of Holmes work must include at least three central
elements. First, Holmes, as a Supreme Court Judge, was (not surprisingly)
a profound believer in defining the law by reference to what the courts
actually said it was. This is especially evident in his famous address ‘The Path
of the law’ which he delivered to law students in 1897. He warned them to
distinguish clearly between law and morality: consider what the law is, not
 what it ought to be (shades of legal positivism). Secondly, in developing his
view, he introduces the device of the ‘bad man’: ‘If you want to know the
law and nothing else, you must look at it as a bad man, who cares only for the
material consequences which such knowledge enables him to predict’. Thirdly,
Holmes firmly believed that legal developments could be scientifically
justified: the ‘true science of law’, he argued, ‘consists in the establishment of
its postulates from within upon accurately measured social desires instead of
tradition’.
criticisms:
According to Cohen, Holmes observation is simply, incorrect. What courts do’ is a phrase
heavy with a variety of meanings. Does it have equal application to all types of court? Is
there a significant distinction between what courts do and what they say, given the fact
that many jurists and lawyers tend to perceive most ‘judicial behaviour’ as verbal? It may
be that the real value of Holmes’ definition is in its drawing attention to the operations, to
the functioning, of the courts.
Goodhart criticized Holmes’ formulation by suggesting that ‘Law is what the courts do’
can be no more satisfactory to the jurist than the statement, ‘Medicine is what the doctor
gives you’.
The assertion that “laws” are only what the judges’ do, would imply that statutes and
precedents are followed only because they are “laws” already. But we find that judges do
interpret statutes and precedents and keep changing them from time to time. It does not
mean that they are not laws until interpreted.
Holmes suggested that if one wants to know the ‘real law’, and nothing else, one ought to
consider it from the point of view of ‘the bad man’ who cares only for the material
consequences which such knowledge enables him to predict. Do not, he argued, take into
account the point of view of ‘the good man’, who may find reasons for his conduct in ‘the
vaguer sanctions of conscience’. Point out that this approach does not echo well with our
understanding of the law in real life..
Holmes emphatic in his belief that the making of laws is the business, not of the courts,
but of the legislative bodies within communities. He proclaims the urgency of
recognizing the principle that the people have the right to make, through their elected
representatives, whatever legislation they feel to be necessary, given the needs of the
community.
The overemphasis on uncertainty of law as put forward by realists i.e. Holmes

Frank
He followed the path charted by Holmes. He counted himself a ‘constructive fact-sceptic’
(those who doubt that facts play any role in the decisions), who found legal certainty
as arising from the elusiveness of ‘facts’, in contrast to the ‘rule sceptics’ who found legal
uncertainty to be a product of the law’s formal rules.
Based on his analysis of rule sceptics (those who doubt that rules decide cases e.g.
Llewellyn is a representative of the rule sceptics) and fact sceptics (they doubt that
facts play any role in the decisions), Frank says that facts are not objective. They are
what the judge think they are. And what he thinks they are depends on what he hears and
sees as the witnesses testify- which may not be, and often is not the same as what another
judge would hear and see.
According to Frank, law could not be separated from the decisions of the courts; hence it
was necessary to understand the bases of judicial decisions, and this required an
investigation of a variety of factors.
In addition to the above, Frank also address the relationship between the courts and facts.
To him, the law is, in relation to a set of facts, a decision of the court relating to those
facts. Hence, until the court has given its decision, no law concerning those specific facts
is in existence.
Furthermore, Frank reasoned that before the making of such a decision, the only ‘relevant
law’ available is a lawyer’s opinion- a mere guess as to what the court will decide.
Hence, the law is essentially uncertain.
According to Frank, the search for certainty in law arises fundamentally from the search
of a ‘father figure’ and reflects the childish need for an authoritative parent. Frank urged
jurists to reject ‘the infantile search of a father figure’ and follow ‘completely adult’
jurists, such as Holmes.

Rules, according to Frank, are ‘no more law than statutes are law’. Rules are mere words,
and, in any event, the court will indicate what rules mean, whether contained within a
statute or implied in the opinion of some other court. Rules are not to be found at the
basis of a judge’s decisions: those decisions may be arrived at before he finds a reason for
them. The reasons he gives later may be no more than a rationalisation of his intuitive
feelings. Since knowledge of the rules alone is of limited value in predicting the outcome
of a trial, it is necessary to turn for guidance to study other matters i.e. Prejudices or
‘judicial hunch’.
Regardless of Frank’s scepticism as to the reliability of trial procedures in the process of
discovering the essence of law, he was concerned with the question of attaining justice as
the end of those procedures. He urged, therefore, the enlargement of the bounds of
judicial discretion so that rules might be made more flexible in individual cases. Every
legal hearing is, in a sense, unique, and a judge ought not to be tied to the demands of
‘rigid universals and abstract generalisation’. This is essential if justice is to be
‘unblindfolded’.
criticisms:
Frank’s view of uncertain ‘judicial hunch’, leading to the unpredictable, personalised
decision has been criticised.
For Frank, the law consists of decisions: the single judgment in a given case is the law.
Prior to that decision, the only law available rests, presumably, on the guesses of lawyers
as to what, in the particular circumstances, the court might do. Frank’s formulation
ignores the significance of agreed rules, conventions, ‘judicial protocol’, in the
administration of a law which has its basis in an accepted repertoire of responses within
defined limits.
General objections to Frank’s perception of the significance of ‘uncertainty in law’ have
been raised by jurists who doubt the accuracy of his methods of analysis.

Gray
He defined jurisprudence as ‘the science which deals with the principles on which courts
ought to decide cases... it is the statement and systematic arrangement of the rules
followed by the courts and of the principles involved in those rules’. Thus, the ‘law of the
State’ or any organised body of men ‘is composed of the rules which the courts, that is,
the judicial organs of that body, lay down for the determination of legal rights and duties.
Hence, this could be said as Gray’s views on the significance of rules in the legal system.
According to Gray, his approach to judicial interpretation is that the judges settle what
facts exist’ and also lay down rules according to which they deduce legal consequences
from facts. These rules are the rules of law.’

Gray distinguishes between “law” and “sources of law”. He views the law as composed
of the rules laid down by the state’s judicial organs for the determination of rights and
duties. Everything else, including a statute, are only sources of law until used as a basis
of decisions by the courts.
To determine what are State’s and civilian’s rights and duties, the State establishes
judicial organs, the judges. To determine rights and duties, the judges settle what facts
exist, and also lay down rules according to which they decide legal consequences from
facts. These rules are law”.
Gray was criticised by Cardozo on the grounds of uncertainties inherent in his view that
statutes are merely sources of law which judges utilise in the exercise of a law-making
function. In that view, says Cardozo, even past decisions are not law. The courts may
override them.

Llewellyn
He is claimed to have introduced the term ‘realistic jurisprudence’. He claimed that his
version of realism was not a philosophy but a technology and that’s why it is eternal.
According to Llewellyn, law is never static; it is to be considered as a means to a social
end; continuous examination is essential; ‘is’ and ‘ought’ must be divorced for purposes
of legal study; traditional concepts are rarely an adequate explanation of law in action,
law has to be evaluated in terms of its social impact.

Llewellyn argued that conflicts in society are not resolved by words and rules but by
officials. What the judge is going to do in deciding a case before him is much more
important than any rule he may cite to sustain his action.
In addition to the above, he emphasised that legal rules are not as important as legal
theorists assume them to be. It is how a rule work that determines its significance; a rule
of law thought of solely in terms of a verbal formula is mere emptiness. Rules are what
they do. Thus, Llewellyn regarded statutes and precedents as mere “paper rules”. But the
courts actually operate “real rules” which have to be discovered or brought to light.
Furthermore, Llewellyn claimed that “paper rules” misdescribe the reasoning processes
judges in fact adopt in reaching their decisions. Ratio decidendi provided mere “paper
qualifications”. Thus, the “real rules” which Llewellyn proposed to find out were to lay
bare foundations of judicial decisions.
According to Llewellyn, the basic functions of the law- the execution of law jobs are
related to social ends. If society is to survive, organisation of social matters must be
effected and kept effective. Five fundamental law jobs have emerged, and they are
considered by Llewellyn as universal and essential for most societies and groups.
The disposition (i.e. adjustment) of trouble cases, perhaps the most important of the law
jobs. He referred to this job as ‘garage repair work’. Work of this type- the resolution of
disputes, the settling of grievances- acts as a test to decide which legal rules prevail in the
real world.
The basic functions of law (law jobs) are:
The provision of directive and incentive through the organisation of society as a whole,
which involves the total effect of the three previously listed law jobs; in Llewellyn’s
phrase, ‘the Whither of the net Totality’.
Llewellyn explains that around the performance of various clusters of law jobs will grow
distinct activities from which it will become possible to discern and analyse ‘the stuff of
law’. When men begin to specialise in these activities it becomes possible to recognise
‘the men of law’. From the conjunction of men and activities in relation to law jobs there
will emerge the craftsmen of the law and their crafts. The crafts of the law, which
Llewellyn characterises as forming ‘a minor institution’, include advocacy, adjudication,
law-making; these are essentially the specialities which, through education.
According to Llewellyn, one of the most important crafts of law is ‘judicial
reasoning’. He provides a detailed study of two, polarised, aspects of judicial reasoning
i.e. ‘grand style’ and ‘formal style’. The ‘grand style’ derives from the judge’s appeal to
reason. It attempts to minimise uncertainty and seeks to reduce any perceived conflict
between demands of justice and the commands of authorities. On the other hand, the
‘formal style’, which can be discerned in the execution of the law job related to the
settling of disputes, owes much to reliance on rules of law rather than to any perception
of the demands of ‘policy’ (which concern the legislature in particular). The ‘formal
style’ is often characterised by the deductive form of reasoning and expressions of what
Llewellyn termed ‘single line inevitability’. This style seems to have dominated the
American courts during the second half of the nineteenth century. But, he warned, the
influence of the formal style has not lost its grip; it continues to offer a standard style for
the writing of judicial opinions
criticisms:
His lack of attitude to the significance of rules within the legal process has been rejected
as based on an incorrect perception of the function of rules.
His emphasis on the dichotomy of words and actions in the formulation of judicial
decisions has been condemned as bizarre and unrealistic.
Llewellyn’s overemphasis on social phenomenon was not well received by others as a
realist.
Kanterowicz: realists have the “sociological prejudice”, when they believe that one can
study social phenomena by themselves without considering the rules that govern them.
Pound has also criticised realism for its emphasis on social phenomenon and ignoring the
legal rules.
Llewellyn’s work also received criticism on the basis of his lack of attitude to the
significance of rules within the legal process has been rejected as based on an incorrect
perception of the function of rules.

The Rules of Scepticism:

Rule sceptics- those who doubt that rules decides cases. Llewellyn is representative of
the rule sceptics. Rule sceptics have interests in appellate courts. Rule sceptics with their
predictive models assumed that there is an ascertainable set of facts, otherwise attempts at
predicting the results of court cases by looking at the real rules would not have been
possible. Frank denied that there is this certainty in the judicial process and that if his
model is followed there is no way in which predictions can be made. In addition he
denied that the rule sceptics could include within their real rules the second set of elusive
elements he identified, which included the racial, religious, political or economic
prejudices of the judge and jury.
Furthermore, Frank argued that in a trial court the law and the facts become intertwined-
there is not a simple application of the law to the facts, instead the law emerges in
adversarial manner just as the facts do. When the jury comes to its verdict, they do not
distinguish between law and fact, and in this state of confusion they decide the case on
other grounds i.e. act on their emotional responses to the lawyers and witnesses; they like
or dislike, etc.
The Facts of Scepticism:
Frank was the main fact sceptic. The fact sceptics doubt that facts play any role in
decisions. The fact sceptics have their primary interest in trial courts. For example, Frank
says that facts are not objective. They are what the judge thinks they are.
Frank points to two main groups of elusive factors which cannot be captured by any
predictive theory based on observation of the behaviour of the courts: witnesses
frequently make mistakes in observation of what they saw and heard. Secondly, the trial
judges have prejudices often unconscious, to the witnesses, or the parties to the suit, or
the lawyers.

Conclusion:
Realism is a valuable extension to the work of the sociologists. They uncovered personal
factors. They furnished a penetrating insight into the judicial process. For example
Llewellyn’s contribution to American realism was based on his insistence that rules had
to be considered by examining the way in which they worked. His concept of ‘law jobs’
remains significance. The uncovering of the functions which the law sets out to perform
in pursuit of social ends draws attention to law as a means to an end- an essential feature
of the general interpretation of law favoured by American Realists.