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Realist School Of Jurisprudence

Introduction

Jurisprudence is the law’s eye; it provides the law with an understanding of the world in which it operates. To put it another way, it’s a way of connecting the law to its time and place, and the more jurisprudence there is in a specific region, the more relevant that system’s law is to its time and place.[1]

The Realist School of Jurisprudence is the only school of thought that views law as arising largely from judges. Scholars believe that Legal Realism, being a component of the sociological approach, should not be formalized as a distinct school of law. Legal realism, as a movement in legal thinking or as a concept of law, rejects the idea of natural law because it does not believe in unchanging principles of justice, and it also opposes essential models of the law since, for realists, the meaning of legal concepts does not derive from the legislature but rather from an observation of law in operation. This school is commonly referred to as the “left-wing” of the functional school of legal thought.

Unlike the sociological school of thought, the Realist School of jurisprudence has little interest in the purposes of legislation. As defined by Roscoe Pound: fidelity to nature, precise reordering of things as they are, as opposed to what one imagines them to be or what one thinks they ought to be.

The Realist School of Jurisprudence will be the focus of this article. But first, let’s take a look at the definition and history of jurisprudence.

Definition of Jurisprudence

A look at its origins can help us better comprehend the meaning and definition of the term jurisprudence. It is the English translation of the Latin term ‘jurisprudentia’, which means ‘jurisprudence’. The word’s literal definition is “the study, knowledge, or expertise associated with the law.

There have been several definitions of jurisprudence throughout history. When it comes to Roman law, morality overrode the authority of judges or legislators to enact laws since the ethics of natural law had supreme authority.[2]Salmond describes ‘Jurisprudence’ as the “Science of the basic principles of civil law.” Jurisprudence, therefore, deals with a certain kind of law, namely civil law or state law. In the administration of justice, courts follow a set of rules. It has distinct characteristics that set it apart from all other forms of law.[3]The definitions of jurisprudence are valid in their own way, hence there is no one definition of jurisprudence.

History of Jurisprudence

The history of the idea of law and justice may be traced back to Rome and the Indian subcontinent. Since then, it has gone through various periods of growth and development, from ancient times to the present day.

The Dharmashastra writings, a collection of ancient Indian scriptures, include some of the first references to the subject of jurisprudence. There was a strong belief in dharmas and morality throughout these periods.

Later, in the days of ancient Rome, these ideas were refined even further. They used the same kinds of legal systems that we have now. In addition to this, citizens were also subject to a variety of oral laws, traditions, and rules. The Roman Empire spawns a variety of legal traditions. The legal profession evolved and grew more scholarly.

School of Jurisprudence

Jurisprudence is the study of law as a theory and as an experiment. It examines the origins of law and its concept. The law has a wild idea. It is understood in different ways by different people. Every individual has a different understanding of the law.

There are basically 5 schools of Jurisprudence: –

Philosophical School

Natural law is another term for the Philosophical school of jurisprudence. The philosophical approach focuses on the relationship between law and the goals it seeks to achieve, as well as the logic behind the creation of a certain rule. The law, according to renowned legal scholars, is neither a personal direction of a ruler nor a concern for the creation of documented necessity. According to them, the law is the consequence of human reason, and its purpose is to advance and celebrate human individuality.

Analytical School

The analytical school of jurisprudence was founded by John Austin, and as a result, it is also known as the Austinian School. The analytical school of jurisprudence focuses on the current state of law. It aims to examine how the fundamental principles of law are applied in a particular legal system.

This school places a high value on the relationship between law and the state. They see the law as an order issued by the Sovereign, i.e., the State. This school isn’t interested in the law’s history or future; instead, it studies the law as it is now.

Historical School

The historical school is based on the idea of rules created by humans. According to the saying, “Law is formed for and by the people,” this suggests that the law should be updated to reflect society’s evolving demands. Moreover, every one of us is more aware of our own needs than anybody else.

The Historical School of Jurisprudence relies on people’s habits and customs, which evolve as their wants and requirements change. Additionally, it is referred to as the continental school of Jurisprudence. According to this school, judges do not create the law and it has no divine origin.

Sociological School

This school’s mission is to fill the gap between the legal system and everyday life in society. Every issue and every development in society was examined from a legal viewpoint at this institution. Law is a social phenomenon, and it has some kind of direct or indirect relationship with society. The importance of balancing the welfare of the state with the welfare of individuals was acknowledged by the Sociological School of Jurisprudence.

Realist School

Emotions have a large role in legal decisions. This school is referred to as the Realist School since the law is seen to be a fact in this school’s thinking. This school is concerned with the authority judges’ judgments and their mindset. This school is founded on the viewpoints of attorneys and judges, as well as the application of their thought processes. When it comes to justice, this school evaluates the viewpoints of both sides in a given situation.

Realist School of Jurisprudence

In reality, there is no such thing as a realistic school. ‘Realism’ is a term for a movement in law that includes both thinking and action, relating to the world as it actually operates. In the Realist school of jurisprudence, the law is studied in its real workings, rejecting the usual concept that it is a collection of rules or principles. Rather than being defined by a set of rules, the law is defined by the judge’s decision.

Realists, sarcastically define law as a good reason for a bad man. Simply stated, the bad guy cares nothing about legal theory and is solely concerned with the practical implications of his actions. Analytical and social jurisprudence together up the realism school of jurisprudence.

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.
  • Scandinavian Realists – Scholars relied only on their own personal experiences in this area.

American Realism[4]

Analytical and sociological schools are combined in the realist school of jurisprudence, analytical which is the judgment delivered by judges in the court, and sociological because of the influence of judges-made legislation on society.

John Chipman Gray (1839-1915)

John Chipman Gray is regarded as one of the “founding fathers of the realist movement” and is credited with inventing the term “realist.”

According to Gray, the court, rather than the legislature, is the most significant source of the law. According to him, a judge’s mentality and bias play a significant impact in his decision-making. He laid the groundwork for a more critical approach that continued to emphasize the role of non-logical variables in making judgments.

According to Gray, the courts are the ones who give life to the statue’s words.

Oliver Windell Homles (1841-1934)

He made a point of stressing that the practice of law was a combination of both experience and logic. Known for his “bad man’s theory,” Holmes saw law from the standpoint of someone who would commit a crime. As he sees it, the law is for the criminals or the “bad man”. To evaluate what the law really is, one should go to a bad person’s interpretation of it, since they will be able to accurately calculate what the laws enable them to do and work within those bounds.

His emphasis was on the practical and empirical aspects of the law. The primary goal of studying legal history was for him to begin the process of re-evaluating the value of laws that had been formed through time. There must be a clear separation between law and ethics. Holmes’ vision of law put both court and professional lawyers at the center of the legal stage.

Jerome N. Frank (1889-1957)

There are two kinds of realists, Frank said. While one group is skeptical of legal standards ensuring consistency in the law, the other group is skeptical of the establishment of facts before the trial court. Frank admitted that he belonged to the second group.

Frank focuses on the unpredictability of the legal system. He argues that rules and written law are based on the false assumption that the law should be clear. He said that judges and practitioners should recognize the reality that the law is ambiguous and should not rigorously stick to precedent and defined rules. He emphasized the necessity of lawmaking by examining the facts of each case in light of the changing societal contexts.

Carl N. Llewellyn (1893-1962)

The term “realism” refers to a shift in legal thinking and practice. When it comes to this approach, legislation is seen as a tool for achieving social goals, and every aspect of the system must be examined for its purpose and impact. Society’s view of the world changes more quickly than the law does.

Realists are skeptical of established legal principles and concepts. It focuses more on what the courts and individuals are really doing. According to Realism, the law is defined as “a broad prediction of what the court will do.”

Scandinavian Realism[5]

In contrast to American Realism, the approach used by Scandinavian realists to law is more abstract and philosophical. It sharply opposes the metaphysical concepts of law. Scandinavian realists had an essential role in opposing natural law theories.

Axel Hagerstorm (1868-1939)

The founder of Sweden’s realist movement. As a philosopher, he was outspoken in his criticism of the law’s foundational principles. The flaws in legal reasoning and writing are often discussed in his writings. There have been several efforts by jurists to identify the empirical basis for rights, but he rejects all of them.

He emphasized the psychological importance of doing the right thing. “One fights more effectively if one feels that one is fighting for what is right,” he asserts. In his search for the origins of rights, he delved deep into Greek and Roman legal systems. He held that contemporary law, like ancient law, is ceremonial.

Law and ritual are like whiskey and its bottles,” he claims. In order to sip the whiskey, one must first remove the bottle. In Hagerstorm’s mind, there was no such thing as good or evil. There is no such thing as objective values, according to him.

Karl Olivecrona (1897-1980)

Olivercrona believes that there is no need for a clear definition of the law. The nature of law, on the other hand, needs a hypothesis about what it is, therefore he decided to explore the law instead. Rather than assuming, he insisted on investigating the facts.

“Binding forces behind the law” and “binding forces” were concepts he opposed. Furthermore, he emphasized that such binding force is not based on the “intent of the State” or the terrible consequences that would follow if the law is violated.

Alf Ross (1899-1976)

Jurist Alf Ross of Denmark was interested in the moral nature of law. It was his interpretation of the law that was based on the realities of society. For him, it’s all about judge-made laws and America’s way of doing things. Norms of conduct and Norms of procedure were categorized by him as two distinct types of legislation or standard. He raised doubts about the legislation’s legitimacy and disbelief in applying social realities to the interpretation of the law.

A.V. Lundstedt (1882- 1957)

According to him, justice is nothing more than an abstract concept that is nothing more than imagination. When it comes to studying law, he thought that only physical facts should be examined. As a result, he mocked ideas like rights, responsibilities, and the application of the law. He opposed the concept of laws being designed to accomplish justice, and he referred to such laws as ‘material law’.

According to him, rather than focusing on what is right or wrong, judges should consider what is best for society as a whole. In lieu of justice, he used the word social welfare.

Drawback of the Realist School of Jurisprudence

  • Reduce the significance of legal texts and jurisdictions.
  • Dispute the validity of the law’s binding power.
  • Customs are not taken into consideration.
  • The importance of legislation enacted by judges has been overemphasized.
  • Realists have placed an excessive amount of emphasis on litigation and the human aspect of the law, and they have been completely unaware of the vast majority of the law that does not even come before the courts for judgment purposes, according to the critics.

Conclusion

One of the most significant effects of the Industrial Revolution has been an increase in the need for human contact. To achieve fairness, it was determined that a balance must be struck between the general well-being of society and the preservation of individual liberty. As a result, many people believe that society affects an individual’s life in positive ways and vice versa. The many sociological approaches to the study of law may be considered to be based on this. Legal realism is one such social approach. Court decisions are studied by realists, who also evaluate the human element involved in delivering them.

[1]Avni Nagaria, Justice V.R. Krishna Iyer: Our Heritage, Universal Law Publishing Co., 2011 Edition, An Address by Justice V.R. Krishna Iyer, p.109

[2]https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4104&context=ndlr

[3]http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/6.%20jurisprudence%20final.pdf

[4]https://www.legalbites.in/legal-realism/#realism

[5]https://www.legalaims.com/realist-school-of-jurisprudence

This article has been written by Ashutosh, 2nd Year BBA. LLB student at Bennett University.

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