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The Realist School of Jurisprudence: American and Scandinavian Views

The approach of the Realist School of Jurisprudence


Law books in a library a shelf

The Realist Approach to law in jurisprudence is a part of the sociological approach:


  • First, it was established as a reaction against the sociological jurists who were emphasizing the social effects of the law.


  • Second, it was established to ignore the Theory of social interest given by IHERING and the theory of Social Engineering Theory by ROSCOE POUND.


  • Thirdly, this school was established to point out the importance and relevance of the Courts and the necessity of Judges- more essentially the "HUMAN FACTOR" in the Judges and lawyers.


The Realist School of Jurisprudence can be divided into 2 categories for ease of understanding, namely the-

  1. AMERICAN School

  2. SCANDINAVIAN School


The theories and practices of the school shall be discussed herewith, based on beliefs held by some of the major proponents of this School, as divided above.


1. AMERICAN SCHOOL


A picture of the USA Flag

The most overwhelming feature of the American School of Realism in jurisprudence was that instead of considering it a school, the jurists in this ideology considered it to be a movement. This Realist movement was largely characterized by two major ideologies-

  • Law needed to be considered prima facie or on its face value.

  • Law needed to be accepted as the culmination of several elements.

American Realist movement gave a greater focus on legal principles, rather than controversial facts, all of which were beyond the point of adjudication. The Realist movement of American School was important because it had an approach beyond legal codes and systems, and extended to social and cultural approaches.


GRAY (1839-1915)


John Chipman Gray is one of the “mental fathers of the realist movement”. Gray considered Judiciary, and not the Legislature, as the most important source of law. He admitted the crucial role played by the “non-logical” factors such as personality and prejudice of the judges while delivering the judgements. He laid down the foundation for the modern American realist thought.


JUSTICE HOLMES


Oliver Wendell Holmes, Jr., is famous for his “Bad Man Theory”, which looked at law from the perspective of the criminal. Law as per Holmes, is meant for the potential criminal or the “bad man”.


He considered various definitions of law based on ethics, morality and neutrality and rejected them all, observing that the bad man cares only about what the Courts will do, if certain acts are committed by him. Such predictions or “prophecies” regarding the Courts are known as Law. He believed in the complete separation of law and morals. He was interested in studying law prima facie.


JEROME FRANK


Jerome Frank insisted on the existence of two groups of realists- one group is sceptical about legal rules providing uniformity to laws; the other group is sceptical about the establishment of facts before the trial court, in addition to the scepticism about legal rules.


According to Frank, the law involves the application of certain rules of law, to the facts of a case by the Judge and he expresses scepticism about accuracy in the findings of a Judge and remarks that in most cases, it is difficult to distinguish facts found by a Judge and remarks that in most judgments, the rule of law applied to them and subsequent combination of both are muddled together. He also emphasized the uncertainty of the law.


CARL N. LLEWELLYN


Llewelyn recognized law as an institution, which is extremely complex, owing such complexity to the use of several precedents and ideologies in the formulation of legal principles.

He further established the concept of “law jobs”, wherein Law has two basic functions in society-

  • To facilitate group survival

  • To engage in a quest for efficiency, justice, and richer life


2. SCANDINAVIAN SCHOOL


aerial view of Coppenhagen

Professor Dias, a jurist, believed that there was no “School” of Scandinavian Realism because members of this school of thought have far-reaching ideas. They believed that law cannot be delineated through physical facts alone and subsists through psychological results based on certain facts.


Scandinavian thought proponents were against any metaphysical speculation regarding law and were more concerned with the general investigation of the fundamental facts of the existing legal system.


Hägerström


Axel Hägerström is regarded as the spiritual father of the Scandinavian Realists. He strongly criticized the metaphysical foundations of law.


According to Hagerstorm- “One fights better if one believes that one has rights on one’s side.” He extensively studied Greek and Roman Law for the historical basis of rights and believed that justice like Classical law, Modern Law is also ritualistic. Hagerstorm rejected the idea of objective values such as Good and Bad.


OLIVERCRONA


Law as per Professor Olivercrona does not require any specific definition. He sought to investigate the law and not the nature of law because such examination would require an assumption to be made concerning what law is. As per Olivercrona, the law is a “binding force”, as long as it is in operation, or valid. The moment a law loses its validity, it shall consequently lose its force as well.


He further believed that the term “rights” was a hollow word and that legal problems can be solved together without using the concept of rights. He also opined that Law influences morality and not the other way around.


ROSS


Alf Ross was a Danish jurist, who deliberated upon the normative character of law. He distinguished between Normative laws and descriptive laws which are found in the books. He did not believe in interpreting laws in light of social facts and expressed concern regarding the validity of the law. His ideas were concerned with the legal orders and the position of Courts.


Alf Ross stated that Norms, in general, have two objectives-


  • It is a form of direction to act, or not to act in a certain manner.

  • Establishing a connection of such direction with the social facts.


He also held that psychologically there are two norms-


  1. Primary Legal Norms- Generally followed by citizens, with or without any coercion

  2. Secondary Legal Norms- it determines how cases are to be adjudged


A. V. LUNDSTEDT


Lundstedt rejected the idea of justice and normal aspects of the law. The idea of justice according to him is purely metaphysical and a pure fantasy. He believed that only physical facts should be considered in the study of law.


Thus, he dismissed the idea of concepts of rights, duties, legal rules and so on. The idea of law being made for justice was rejected by Lundstedt and he regarded such ideas of law derived from natural justice to be material law.

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