Wednesday, November 7, 2012

AMERICAN REALIST SCHOOL OF JURISPRUDENCE



The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school as a separate school of jurisprudence. American realism is a combination of the analytical positivism and sociological approaches. It is positivist in that it first considers the law as it is. On the other hand, the law as it stands is the product of many factors. In as much as the realists are interested in sociological and other factors that influence the law. Their concern, however, law rather than society.  Realists don’t give any importance to laws enacted by legislature. And they uphold only judge-made law as genuine law.  A great role of judges’ understanding about law, society and also their psychology affect any judgment given by them. At the same time, in a same case applying same law two different judges give the different judgments.

Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case. In strict sense, realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision.  It presupposes 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 formal, logical and conceptual approach to law. The realist school evaluates any part of law in terms of its effect. Jerome Frank has stated, “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.”[1] The judges’ decisions are the outcome of his entire life history.”

MEANING AND DEFINITION OF THE AMERICAN REALISM:

The insights of legal realism are mainly negative, revealing a deep skepticism about the model of rules, about any general and abstract theory of the law. Realism was not consolidated into a definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical phenomenon’ 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 a rigorous set of methodologies or propositions about legal theory.
According to Roscoe Pound,Realism is the accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be or as one feels they ought to be”.
According to Friedman,Realist school prefers to evaluate any part of law in terms of its effects”.

ORIGIN AND HISTORY OF THE AMERICAN REALIST SCHOOL:

Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States of America. American Legal Realism is often remembered for its challenge to the Classical legal claim that orthodox legal institutions provided an autonomous and self-executing system of legal discourse untainted by politics.
The realist school has been divided into two parts:
Ø  Scandinavian Realism
Ø  American Realism
Both are hostile to formalism that treats law as a lifeless phenomenon. Both adopt radical empirical methods that seek to explain law in terms of observable behavior (examining cause and effect) and both are antagonistic towards metaphysics and values. Scandinavian Realism is existed in Europe, Sweden, Norway, England and Scandinavian countries. This school of realism was supported by Axel Hagerstrom, A.V. Lundstedt and Karl Olivecrona.

Realist thinking was introduced to American jurisprudence by Oliver Wendell Holmes[2].
Oliver Holmes has been described as the intellectual inspiration[3] and even the spiritual father[4] of the American realist movement. Holmes was skeptical of the ability of general rules to provide the solution to particular cases and readily gave credence to the role of extra-legal factors in judicial decision-making. Holmes gave the first and classic exposition of the court-focused approach in 1897, sowing the seeds for realism, in a paper called The Path of the Law.

AMERICAN REALIST MOVEMENT:

Realism was not consolidated into a definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school of thought’.[5] The realist movement began in the 19th century in America and gained force during the administration of President Franklin D. Roosevelt. The realist movement in United States represents the latest branch of sociological jurisprudence. Which concentrates on the decisions of law courts. Sometime it is called the ‘left wing of the functional school.’ This movement named as realist because this approach studies law, as it is in actual working and its effects. Realism was a movement without a clearly articulated theoretical foundation of its own. Some jurists refuse to accept realism as a separate school of jurisprudence. According to Llewellyn, “there is no realist school as such, it is only a movement in thought and work about law.” Realism is the anti-thesis of idealism. American realism is a combination of the analytical positivism and sociological approaches. Julius Stone calls the realist movement a ‘gloss’ on the sociological approach.[6]

BASIC FEATURES OF REALIST SCHOOL:

Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case. In strict sense, realists define law as generalized prediction of what the courts will do.
There are certain principal features of realistic jurisprudence as outlined by Karl Llewellyn and Prof. Goodhart: 
1.      There has to be a conception of law in flux and of the judicial creation of law.
2.      Law is a means to social ends; and every part of it has constantly to be examined for its purpose and effects, and to be judged in the light of both and their relation to each other.
3.      Society changes faster than law and so there is a constant need to examine how law meets contemporary social problems.
4.      Realists believe that there can be no certainty about law and its predictability depends upon the set of facts which are before the court for decision.
5.      They do not support formal, logical and conceptual approach to law because the Court while deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’ ground.
6.      They lay greater stress on psychological approach to the proper understanding of law as it is concerned with human behavior and convictions of the lawyers and judges.
7.      Realists are opposed to the value of legal terminology, for they consider it as tacit method of suppressing uncertainty of law.
8.      The realists introduced studies of case law from the point of view which distinguished between rationalization by a judge in conventional legal terminology of a decision already reached and the motivations behind the decisions itself.
9.      The realists also study the different results reached by courts within the framework of the same rule or concept in relation to variations in the facts of the cases, and the extent to which courts are influenced in their application of rules by the procedural machinery which exists for the administration of the law.

HOW AMERICAN REALIST SCHOOL IS DIFFERENT FROM OTHER SCHOOLS OF JURISPRUDENCE:

Ø AMERICAN REALISM AND LEGAL POSITIVISM:  Despite their serious differences, American realism and legal positivism share one important belief. It is that their views are similar on the point of difference between ‘the law as it is’ and ‘the law as it ought to be’. The positivist, according to Hart, look to the established primary rules and to secondary rules of recognition that designate law making bodies. American realists are skeptical about the degree to which rules represent the law. They seek to investigate how courts actually reach their decisions. Karl Llewellyn observed that the realists’ separation of ‘is’ and ‘ought’, is a temporary divorce. The divorce lasts while the scholars are discovering what courts actually do.

Ø AMERICAN REALISM AND SOCIOLOGICAL APPROACH: Realist school differs from sociological school as unlike the sociological approach, realists are not much concerned about the ends of law but their main attention is on a scientific observation of law and its actual functioning. It is for the reason that some authorities have called realist school as the ‘left wing of the functional school.’ Some quarters feel that realist movement in the United States should not be treated as a new independent school of jurisprudence but only a new methodology to be adopted by the sociological school.

Ø AMERICAN REALISM AND NATURAL LAW PHILOSOPHY: Realist school differs from Natural law school as according to natural law philosophy laws are made by the Nature or God itself but Realist school believes that laws are made by the judges or juristic persons. Natural Law is “discovered” by humans through the use of reason and choosing between good and evil. In Natural law school laws are based on the morality and the ethics.

MAIN JURISTS OF AMERICAN REALIST SCHOOL & THEIR THEORIES:

a)    JUSTICE HOLMES: BAD MAN THEORY:
The seeds of realism were sown by Justice Holmes. He said that Law is not like mathematics. Law is nothing but a prediction. According to him, the life of law is logic as well as experience. The real nature of the law cannot be explained by formal deductive logic. Judges make their decisions based on their own sense of what is right. In order to see what the law is in reality, he adopted the standpoint of a hypothetical ‘Bad man’ facing trial. Therefore his theory is known as Bad Man Theory. This theory says that a bad man successfully predicts the actual law than other people. Holmes said that law should be looked from bad man’s perspective. On the basis of this prediction Holmes defined the law as, “Prophecies (ability to predict) of what the court will do in fact and nothing more pretentious.”[7]

b)    JUSTICE GRAY:
John Chipman Gray only exhibited limited factors in common with the realists. His approach was certainly as court-oriented as the realists. For Gray the law was simply what the court decided. Everything else, including statutes, were simply sources of law. He said, “The law of the State or of any organized 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.[8]

c)     KARL N. LLEWELLYN: A LAW JOBS THEORY:
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. Karl Llewellyn outlined the principle features of the realist approach. Which are as follows:-
1.      There has to be a conception of law in flux and of the judicial creation of law.
2.      Society changes faster than law, so there is a constant need to improve the law.
3.      There has to be a temporary separation between is and ought for the purpose of study.

Karl Llewellyn described the basic functions of law as ‘law-jobs’.[9] Law is an ‘institution’ which is necessary in society and which is comprised not only of rules but also contains an ‘ideology and a body of pervasive and powerful ideals which are largely unspoken, largely implicit, and which pass unmentioned in the books’. Law has jobs to do within a society. These are[10]:
                       i.            The disposition of the trouble case: a wrong. A grievance, a dispute. This is the garage-repair work or the going concern of society with its continuous effect upon the remarking of the order of society.
                       ii.              The preventive channeling of conduct and expectation so as to avoid trouble, and together with it, the effective reorientation of conduct and expectations in similar fashion.
              iii.        The allocation of authority and the arrangement of procedures which mark action as being authoritative; which includes all of any constitution and much more.
                       iv.            The positive side of law’s work is the net organization of society as a whole so as to provide integration, direction and incentive.
                   v.            ‘Juristic method’ to use a single slogan to sum up the task of handling the legal materials and tools and people developed for the other jobs to the end that those materials and tools and people are kept doing their law-jobs, and doing them better, until they become a source of revelation of new possibility and achievement.

d)     JEROME FRANK: FATHERS’ SYMBOL THEORY:
Jerome Frank was initially a practicing lawyer. He served in the Law Department of the Government for about a decade. In 1941, he was appointed as a Judge in the United States Circuit Court. He was also a visiting professor of law in Yale Law School. His classic work, “Law and the modern mind” presents a very close examination of judicial process and is full of practical illustrations. His thesis is that law is uncertain or certainty of law is a legal myth. He exploded the myth that law is continuous, uniform, certain and invariable and asserted that the judges do not make the law, instead they discover it. Frank observes that a judge’s decisions are the outcome of his entire life history. His friends, his family, vocations, schools, religion, all these factors are influential.

In this regard Jerome Frank has given the Fathers’ Symbol Theory. The child puts his trust in the power and wisdom of his father to provide an atmosphere of security. In the adult the counterpart of this feeling is the trust reposed in the stability and immutability of human institutions. Frank suggested that the quest for certainty in law is in effect a search for a ‘father-symbol’ to provide an aura of security, and although he attributed great prominence to this factor. He offered it only as a ‘partial explanation’ of what he called the ‘basic myth’, and listed fourteen other explanations as well.[11]

Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty is inherent in it. Therefore mere technical legal analysis is not enough for understanding as to how law works. Frank accordingly divided realists into two camps, described as ‘rule skeptics’ and ‘fact skeptics.’ The ‘rule skeptics’ rejected legal rules as providing uniformity in law and tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology, economics, politics etc. The ‘rule skeptics’ avoided that criticism by saying that they were not deriving purposive ‘ought’ but only predictions of judicial behavior analogous to the laws of science. Frank called this brand of realism the left-wing adherents of a right-wing tradition, namely, the tradition of trying to find uniformity in rules. The fact ‘fact skeptics’ rejected even this aspiration towards uniformity. He abandoned all attempts to seek rule-certainty and pointed to the uncertainty of establishing even the facts in trial courts. It is impossible to predict with any degree of certainly how fallible a particular witness is likely to be, or how persuasively he will lie.

Frank divided realists into two camps, described as ‘rule-skeptics’ and ‘fact-skeptics’. The ‘rule-skeptics’ rejected legal rules as providing uniformity in law, and tried instead to find uniformity in rules evolved out of psychology, anthropology, sociology, economics, politics etc[12]. Kelson, it will be remembered, maintained that it is not possible to derive an ‘ought’ from an ‘is’. The ‘rule-skeptics’ avoided that criticism by saying that they were not deriving purposive ‘ought’, but only predictions of judicial behavior analogous to the laws or science.

CONTRIBUTION OF THE AMERICAN REALIST SCHOOL TO JURISPRUDENCE:

The main contribution of realists to jurisprudence lies in the fact that they have approached law in a positive spirit and demonstrated the futility of theoretical concepts of justice and natural law. Opposing positivist’s view, the realists hold that law is uncertain and indeterminable in nature therefore, certainty of law is a myth. According to Friedman, realist movement is an attempt to rationalize and modernize the law- both administration of law and the material for legislative change, by utilizing scientific method and taking into account the factual realities of social life. According to Julius Stone, “realist movement is a gloss on the sociological approach to jurisprudence. He considers realism as a combination of the positivist and the sociological approach. It is positivist in the sense that it undertakes the study of law as it is and sociological, because it expects that law should function to meet the ends of society. Thus in his view, realist school is merely a branch of sociological jurisprudence and a method of scientific and rational approach to law[13].

CRITICISM OF AMERICAN REALIST SCHOOL:

1.      The realist approach to jurisprudence has evoked criticism from many quarters. The critics allege that the exponents of realist school have completely overlooked the importance of rules and legal principles and treated law as an assemblage of unconnected court decisions. 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. Undoubtedly, judges do contribute to law-making to a certain extent but it cannot be forgotten that their main function is to interpret the law.
2.      Another criticism so often advanced against realists is that they seem to have totally neglected that part of law which never comes before the court. Therefore it is erroneous to think that law evolves and develops only through court decisions. In fact a great part of the law enacted by legislature never comes before the court.
3.      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 only rarely take time for consideration. They have to rely on the evidence and arguments presented to them in court, and do not have access to wider evidence such as statistical data, economic forecasts, public opinion, survey etc.
4.      Realist school has exaggerated the role of human factor in judicial decisions. It is not correct to say that judicial pronouncements are the outcome of personality and behavior of the judges. There are a variety of other factors as well which has to take into consideration while reaching his decisions.
5.      The realist theory is confined to local judicial setting of United States and has no universal application in other parts of the world like other schools of jurisprudence. 

REALISM IN THE INDIAN CONTEXT:

The legal philosophy of the realist school has not been accepted in the sub-continent for the obvious reason that the texture of Indian social life is different from that of the American life-style. The recent trends in the public interest litigation widened the scope of judicial activism to a great extent but the judges have to formulate their decisions when the limits of constitutional frame of the law by using their interpretative skill. In other words the judges in India cannot ignore the existing legislative statutes and enactments. They have to confine their judicial activism within the limits of the statutory law. They are free to overrule the previous decisions on the ground of inconsistency, incompatibility, vagueness, change of conditions etc. Thus the Indian legal system, though endows the judges with extensive judicial discretion, does not make them omnipotent in the matter of formulation of law. The legislative statutes and enactments, precedents and the rules of equity, justice and good conscience are indispensable part of the judicial system in India. The constitution of India itself provides ample scope for the judges to take into consideration the hard realities of socio-economic and cultural life of the Indian people while dispensing social and economic justice to them.

In short, it may be reiterated 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 refuses 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 shaping the law. Thus it would be correct to say that the Indian legal system has developed on the pattern of sociological jurisprudence as evinced by the post-independence socio-economic legislation but it considers doctrine of realism alien to Indian society which has a different life-style and social milieu. Undoubtedly, the Indian judges do have the liberty of interpreting law in its contextual and social setting keeping in view the social, economic, political, cultural, historical and geographical variations of the Indian society. The power of review and doctrine of overruling its earlier decisions has enabled the Supreme Court to effectuate the socio-economic contents of the constitutional mandate[14] through the process of judicial interpretation and use of its inherent powers. Thus the Apex Court in Bengal Immunity Case[15] overruled its earlier decision in Dwarkadas v. Sholapur Spinning Co.[16] and observed that “the Court is bound to obey the Constitution rather than any decision of the Court, if the decision is shown to have been mistaken”. Justifying its stand, the Court further observed that where a constitutional decision affects the lives and property of the public and where the Court finds that its earlier decision is manifestly wrong and injurious to the public interest, it should not hesitate to overrule the same.

Adopting the same approach Justice B.B. Gajendragadkar in Keshav Mills v. Income Tax Commissioner[17] observed that Supreme Court has inherent jurisdiction to reconsider and revise its earlier decision if it does not serve the interest of the public good.

There are a number of cases where the rules or laws are made by the judiciary. Some of the following cases where Supreme Court played the role of law-maker are given as below:

In Hussainara Khatoon v. State of Bihar[18], the Supreme Court has held that speedy trial is an essential and integral part of the fundamental right to life and liberty enshrined in Article 21. In Bihar a number of under trial prisoners were kept in various jails for several years without trial. The court ordered that all such prisoners whose names were submitted to the court should be released forthwith. Since speedy trial is being held to be a fundamental right guaranteed under Article 21 of the Constitution of India. The Supreme Court considered its constitutional duty to enforce this right of the accused person.

In Shri Ram Food and Fertilizer case[19], the Supreme Court directed the company, manufacturing hazardous and lethal chemicals and gases posing danger to health and life of workmen and people living in its neighborhood, to take all necessary safety measures before reopening the plant.

In Ganga Water Pollution case[20], the petitioner sought the direction from the Supreme Court restraining the respondents from letting out trade effluents into the river Ganga till such time they put up necessary treatment plants for treating the trade effluents in order to arrest the   pollution of water in the said river.

In Parmanand Katara v. Union of India[21], the Supreme Court has held that it is a paramount obligation of every medical (private or government) to give medical aid to every injured citizen brought for treatment immediately without waiting for procedural formalities to be completed in order to avoid negligent death.

In M.C. Mehta v. State of Tamil Nadu[22], it has been held that the children cannot be employed in match factories which are directly connected with the manufacturing process as it is a hazardous employment within the meaning of Employment of Children Act 1938. There can, however, be employment packing process but it should be done in are away from the place of manufacture to avoid exposure to accident. Every children must be insured for a sum of Rs. 15,000/- and premium to be paid by employer as a condition of service.

Dealing with a case pertaining to water pollution in case of Vellore Citizens Welfare Forum v. Union of India[23], the Supreme Court directed 162 tanneries in Tamil Nadu to be closed because these were polluting the air and the water around the area where they were operating and the water had been unworthy for drinking.

M.C. Mehta v. Union of India[24], with a view to preserve environment and control pollution within the vicinity of tourist resorts of Badkhal and Surajkund the court directed the stoppage of mining activities within two kilometer radius of these two tourist resorts.

In a significant judgment in Vishakha v. State of Rajasthan[25], the Supreme Court has laid down exhaustive guidelines for preventive sexual harassment of working women in place of their work until any legislation is enacted for this purpose.

CONCLUSION
As we know that American realism is a combination of the analytical positivism and sociological approaches. Realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. Legal realism emerged as an anti-formalist and empirically oriented response to and rejection of the legal formalism. Legal realism operates on a premise that is adhered to by most laymen and many who have legal training: that "the law," whatever that may be, is concerned with and is intrinsically tied to the real-world outcomes of particular cases. Proponents of legal realism say it is not concerned with what the law ‘should’ or ‘ought’ to be, but that legal realism simply seeks to describe what the law is. Proponents of legal formalism disagree, saying that ‘law’ is what is commanded by a law-giver, that judges are not law-givers, and that what judges do, while it might belong to the field of law, is not ‘law’ but legal practice. American realism jolted legal positivism out of its complacency by questioning widely held assumptions about the nature of rules. Realism prompted the rethink of legal positivism that was brilliantly undertaken by scholars like Hart and Raz. It forced positivists to distance themselves from formalism and to reconsider the nature of legal language and judicial discretion.

American Legal Realism is often remembered for its challenge to the Classical legal claim that orthodox legal institutions provided an autonomous and self-executing system of legal discourse untainted by politics. Unlike Classical legal thought, American Legal Realism worked vigorously to depict the institution of law without denying or distorting a picture of sharp moral, political, and social conflict. The most important legacy of American Legal Realism is its challenge to the Classical legal claim that legal reasoning was separate and autonomous from moral and political discourse.

                                                                                           





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