Legislative Law Making And Judicial Law Making Under American Legal Realism


This article present about the American legal realism, which is a combination of the analytical positivism and sociological approach. When a court decides cases, their decision makes law because they become precedent that binds future courts under the doctrine of stare decisis. It is a great role of judges to understand about law, society and also their psychology which can affect any judgment given by them. The judge’s point of view on certain legal issues may be influenced by a number of factors.

The article throws light on the factors which influence judges in judicial process. This article not only covers the main jurists of American realist school and their theories of American legal realism but also the criticism of this doctrine by different jurists. In almost all countries, legislation has been conferred supreme status as a source of law, this paper will throw light on how the courts grants supreme status. Judges are always prepared to make decisions even when there is a lacuna in the law and judges cannot make new law at all times but only in rare cases. This article asserts that judicial lawmaking, like legislative law making, is subject to constitutional principles that govern the extent to which a particular attempt at judicial lawmaking is valid. Because even irrational judicial decisions can still be effective lawmaking acts, it is important to distinguish between constructional and non-constitutional principles and arguments. It is significant to study danger of relying too much on judicial discretion or judges anatomy in creating and enforcing the law. Finally, this article begins to examine the implied constitution that governs judicial lawmaking in the federal system, explicating some of the key issues that define its form and that can shape future development and critique.


The traditional legal rules and concepts are rejected by Realism and concentrate more on what the courts actually do in reaching the final decision in the case. In literal sense, realists define law as generalized prediction of what the courts will do. According to the Realists certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. It requires that law is intimately connected with the society and since the society changes faster than law so there can never be certainty about law. They do not support conceptual, logical and formal approach to law. The realist school calculates any part of law in terms of its effect. It is stated by Jerome Frank that, “Law is what the court has decided in respect of any particular set of facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide and this cannot be treated as law unless the Court so decides by its judicial pronouncement. The judges’ decisions are the outcome of his entire life history.[1]

In the modern state, legislation is considered and original as one of the most important source of law. In fact, this source is of recent origin in English legal system as compared to custom and precedent. Legislation is considered as one of the three main functions of government, which are often distinguished under the doctrine of separation of powers. Those are legislators, judiciary and executive. The legislation is always clear. The legislative justice is more natural than judicial justice. The distinction between a judicial and a legislative act is that the former determines what the law is, and what the rights of the parties are, with reference to transactions already had; the later prescribes what the law shall be in future cases arising under it.


The perception of legal realism is mainly negative, disclosing a deep skepticism about the model of rules, about any general and abstract theory of the law. Realism was not blended into a definite, coherent theoretical system; it can at best be described as a ‘historical phenomenon’ or ‘movement’ rather than a ‘school of thought’. American Legal Realism expressed a set of sometimes self-contradictory tendencies rather than a clear body of tenets or alternative set of methodologies or propositions about legal theory.

The accurate recording of things as they are, as contrasted with things as they are wished to be or imagined to be or as one feels they ought to be is the meaning of realism according to great jurist Roscoe Pound. Friedman stated realist school prefers to evaluate any part of law in terms of its effects. Realist thinking was introduced to American jurisprudence by Oliver Wendell Holmes. Oliver Holmes has been narrated as the intellectual inspiration and even the spiritual father of the American realist movement. Holmes was doubtful about the ability of general rules to provide the solution to particular cases and readily gave reliance to the role of extra-legal factors in judicial decision-making.



The seeds of realism were sown by Justice Holmes. He said that Law is not like mathematics. Law is nothing but a prediction. The decisions made by judges are based on their own sense of what is right. For knowing what the law is in reality, he adopted the standpoint of a hypothetical ‘Bad man’ facing trial. That is why his theory is known as Bad Man Theory. This theory describes that a bad man successfully predicts the actual law than other people. Holmes said that law should be looked from bad man’s perspective one of what the court will do in fact and nothing more pretentious.[2] .” The features of Holmes theory are;

  1. Actually all laws are judge made.
  2. By popular votes many judges are elected as officers.
  3. Federal courts have power of judicial review.
  4. Multiplicity of jurisdiction lead to disputes or inconsistent judicial decisions on same subject.
  5. Judicial interpretations lead to courts to give different meanings to statutory words.


John Chipman Gray only revealed limited factors in common with the realists. His view point was certainly as court-oriented as the realists.  The law was simply what the court decided was the approach of Gray. Everything else is including statutes, were simply sources of law further he stated the law of the State or of any organized body of men is composed of the rules which, the judicial organs of that body that is the courts, lay down for the determination of legal rights and duties. The features of Gray’s theory are;

  1. Law is not an ideal but an existing thing.
  2. Statutes are not only source of law but, law is what court lay down as rules of conduct for the observance of people.
  3. He termed it ‘childish fiction ‘to say that judges do not make law but only state the law as it is.
  4. It is the ultimate criteria to judge whether a rule is a law or not when by its enforcement by the courts.” Courts put life into the dead words of the statute”.[3]


Karl Llewellyn was a professor of law at the Columbia University. He confessed that   there   is nothing like realist school instead it is a particular approach of a group of thinkers belonging to the sociological jurisprudence. According to Llewellyn realism means a movement in thought and work about law. The main points of Llewellyn theory are;

  1. Realism is a technology, not a philosophy.
  2. Law is never static.
  3. Law is means to social ends.
  4. Continuous examination of law is essential.
  5. ‘Is and ought’ have to be temporarily divorced from legal theory in order to understand the true nature of law.
  6. Law is to be evaluated in terms of social impact it makes.[4]


The importance of legislation as a source of law is very high. Among the sources of law, the legislation is ranked the first source, most authoritative and well-recognized. At present customary laws are incorporated in statutes. Legislation is considered as supreme even to precedents. The legislation is always unambiguous. An advanced method of legal development is legislation and is a characteristic mark of mature legal system. An idea of a law is transformed into a law is the process during making law process. Law has different sources, acts of the legislative bodies, acts of the executive bodies, at last judicial precedents, legal customs. The law making of the acts of governmental bodies is more organized than, not as spontaneous as the law-making of the legal custom. The greater part of the law-making process is a political process and principal cannot be regulated by law. The legal scholars may formulate the main principles of this process but it’s important if such principle may be enforced in practice. The matter is that these principles are constitutional principles of the modern state. These principles are binding on for the state and ensure the rights of the society, its groups and individual.

REALISM IN THE INDIAN CONTEXT: The Indian Version of American Realism

Judicial Activism

In India, a democratic country the judiciary has a very important role to perform. To regulate justice is not only responsible by resolving various disputes arising between the citizens interest and sometimes between the citizen and the State, but also has to protect the elected representative of the people in different capacities conduct themselves individually and collectively within Constitutional limitations prescribed in the written Constitution. The Indian Constitution has granted a place of very high esteem to the different judicial organs in the State, especially the Highest Court of the land ‘the Supreme Court’. The Constitution has granted certain very important functions on the Supreme Court which includes protect fundamental rights of the Indian citizens, the power to interpret Constitutional provisions, the power to adjudicate upon and jurisdiction to resolve disputes between the government’s interest, highest appellate jurisdiction and also an advisory jurisdiction in certain matters. The founding fathers of the Indian Constitution as of policy, have strongly ruled in favor of independence of judiciary as the basic structure of the Indian Constitution. They have admitted no such provision in the Indian Constitution whereby the Independence of Judiciary is compromised in anyway. The Indian Judiciary has played a very important role owing to the responsibility guaranteed on it under the constitutional provisions. On several occasions it has proved a savior for retention of Constitutional framework intact in its present form. It has always confined that the Constitution is supreme and no act performed by whatsoever organ shall be upheld which denies Constitution this position of respect and command.

In short, it may be restated that though Indian jurisprudence does not formally subscribe to the realist’s legal philosophy, it does lay great stress on the functional aspect of the law and relates law to the realities of social life. Again, it rejects to accept the realist’s view that Judge-made law is the only real ‘law’ and other laws are worthless, but at the same time it does not completely ignore the role of Judges and the lawyers in forming the law. However it would not be wrong to say that the Indian legal system has developed on the pattern of sociological jurisprudence as indicated by the post-independence socio-economic legislation but it considers doctrine of realism distant to Indian society which has a different life-style and social environment. There is no doubt that the Indian judges do have the liberty of interpreting law in its contextual and social setting keeping in view the economic, social, cultural, political, historical and geographical variations of the Indian society. The power of review and concept of overruling its earlier decisions has enabled the Supreme Court to effectuate the socio-economic contents of the constitutional mandate through the process of judicial interpretation and use of its inherent powers.


The realist approach to jurisprudence has invoked following criticisms;

1). The critics professed that the supporters of realist school have completely overlooked the importance of rules and legal principles and treated law as collection of unconnected court decisions.

2) Their perception of law rests upon the subjective fantasies and life experience of the judge who is deciding the case or dispute. Therefore there can’t be certainty and definiteness about the law. This is indeed overestimating the role of judges in formulation of the laws.

3) They seem to have totally neglected that part of law which never comes be criticism fore the court. Therefore it is incorrect to think that law evolves and develops only through court decisions. Actually  a great part of the law enacted by legislature never comes before the court

4) The supporters of realist theory undermine the authority of the precedent and argue that case law is often made ‘in haste’, without regard to wider implications. The courts generally give decisions on the spot and very rarely take time for consideration. They have to depend on the arguments and evidence presented to them in court, and do not have access to wider evidence such as statistical data, economic forecasts, public opinion, survey etc.

Some more criticisms of Leslative law making are as follows;

1) The legislative always thinks about the totality, but there is no scope for individuality.

2) Legislative cannot visualize every eventuality of legal situationin future; therefore, unforseen situation always remains outside the legislation.

3) Statutes are very rigid.

4) Statute law is often worded in primitive language and uses many double negatives hence it becomes complicated and cumbersome to understand.

5) Poorly drafted or badly written codes are misused by the bad elements of the society.


The legislative bodies are important element of the modern constitutional state. In present almost all countries have the legislative bodies through their role in the governmental mechanism may be different-from formal one to very active and important. The role of the legislative bodies in the law-making process is connected with the role of the statutes as the source of law. However, American thought that there was more to the legal experience than the mere logical application of rules. The statute is not law but is merely a source of law. American realist is mainly interested in the practical working of the judicial process. The court has all practical purposes disregarded the separation of powers under the constitution, and assumed a general supervisory function over governments. what the court has decided is the law in respect of any particular set of facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide and this cannot be treated as law unless the Court so decides by its judicial pronouncement.

View of man-made law as it set by man rather than as it ought to be. It implicit that legal rules are valid not because they are rooted in natural or moral law, but because they are enacted by legitimate authority and are accepted by the society as such. Judicial activism is Indian version of American legal realism where the court is made the monitor of the conduct of investigating and prosecution agencies that are perceived to have failed or neglected to investigate and prosecute. It is the most controversial and activist interpretation of the constitution. The court developed a new regime of rights of citizens and obligations of the state and devised new methods for its accountability. In 1982, Justice P.N. Bhagwati , stated the purpose of public investigation litigation as a strategic aim of the legal aid movement which is intended to bring justice within the reach of the poor masses, who comprises the low visibility area of humanity , is a totally different kind of litigation from the ordinary traditional litigation.

[1] available at http;//www.longwood.edu.in.

[2] Available at,https://definitions.uslegal.com/b/bad-man-theory/

[3] Theories available at http;//www.estga.edu/mmcfrlast

[4] Available at,https://www.grin.com/document/337103

This article is authored by Nehal Pharande, student of Master of Law (LL.M) at DES Law College, Pune

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