JURISPRUDENCE, AMERICAN REALISTIC SCHOOL, SCANDINAVIAN REALISTIC SCHOOL, REALISTIC SCHOOL, SUPREME COURT.

1. REALISTIC MOVEMENT IN SUPREME COURT OF INDIA

2. THE OBJECTIVE OF THE ARTICLE
 1. To study the
Realistic movement in
Supreme Court of
India.
 And to find out that do
judges make law ?

3. THE CONTENT OF THE ARTICLE
 1. INTRODUCTION.
 2. AMERICAN REALISTIC
SCHOOL.
 3. SCANDINAVIAN
REALIST SCHOOL.
 4. REALISTIC MOVEMENT
IN SUPREME COURT OF
INDIA.
 5. CRITICISM OF THE
REALIST SCHOOL OF
JURISPRUDENCE-
EVALUATING THE
POSITION IN TERMS OF
INDIA.
 6.CONCLUSION.

4. INTRODUCTION
 What is ‘jurisprudence’?
 Jurisprudence is the philosophical
interpretation of the nature and
purpose of Law.
 It is your idea or beliefs about what
the purpose of the law should be.
 The realistic school development
origination is America. It speaks to
the most recent branch of sociological
jurisprudence which focuses on
decisions of law courts. Justice O. W.
Holmes is viewed as the worldly father
of the realist school

5. Meaning and definition of realism ?
 Also called Legal Realism, this is
a school of legal thought that
advocates a less abstract and more
realistic, practical and pragmatic
approach to the law by taking into
account customary practices and the
circumstances surrounding the
particular transaction.
 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”

6. Basic Features of Realistic School
 Law is not what Judges say but what
judges actually do when determining
cases.
 Law is not static, and ought to be
considered and examined as though
in flux.
 Law is a way to social ends.
 Society changes quicker than law.
 No sureness about law and its
consistency.
 The distinctive results comes
through the courts.
 They lay more noteworthy weight on
mental way to deal with the best
possible comprehension of law.
 Like Sociological Jurisprudence, this
theory also points the gap between
'law in books' and 'law in action'.

7. AMERICAN REALISTIC SCHOOL
 Main jurist of American realistic
school and their theories:-
 As indicated by Friedmann, the
mental originators of the Realist
development in America were Oliver
Wendell Holmes, Gray,Karl Llewellyn
and Jerome Frank who underscored
the practical and sensible
investigation of law not as contained
in the statute or institution but rather
as translated and set around the
courts in their legal declarations.
 Justice Holmes: bad man theory.
 Justice Gray
 Karl Llewellyn
 Jerome Frank

8. AMERICAN REALISTIC SCHOOL
 Justice Holmes: Bad man theory
 The seeds of realism were sown by
Justice Holmes. He said that Law is
nothing but a prediction. According to
him, the life of law is logic as well as
experience. Judges make their
decision based on their own sense of
what is right. . 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.
 As a forerunner of the Realist School
of Jurisprudence, he defined law as- a
good reason of a bad man; he was of
the opinion that a bad man is not
concerned about axioms or deductions,
but is interested only in knowing what
the courts are likely to do in fact.

9. Justice Holmes: Bad man theory
 All law in reality is judge-made.
 Judicial interpretations leads to courts to
give different meanings to statutory words.
 Holmes prescribed a view from the eyes of
'badman', a man who is anxious to secure
his own selfish interests. In order to
understand the nature of law, we must
view from the eyes of the badman.
 Expressed emphasis that law must be
made by judicial actions rather than by
legislature enactments.
 Legislation is concerned with 'general'
situation, Judge is concerned with
'particular‘ situation. Example: In State v
Ardeshir Hormosji, 1956, a divisional
bench of Bombay High Court extended the
definition of 'premises' according
to Section 2 of Factories Act, 1948 to
include even 'open spaces' because in salt
industry, workers have to work in open
lands.

10. Justice Gray
 Law is not an ideal but an existing
thing.
 Statute are only source of law but
law is what courts lay down as
rules of conduct for the observanc
e of people.
 He termed it 'childish fiction' to say
that Judges do not make law but
only state the law as it is.
 It is the ultimate criterion 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.

11. Karl Llewellyn
 Realism is a technology, not a
philosophy.
 Law is never static.
 Law is a means to social ends.
 Continuous examination of law is
essential.
 'is' and 'ought' have to be
temporarily divorced from legal
theory in order to understand the
true nature of law.
 Law is to be evaluated in terms of
social impact it makes.

12. Jerome Frank
 Law is uncertain. Certainty of law is a
myth.
 Law cannot be separated from decision
s of court. Hence, it is necessary to
investigate the factor leading to making
decisions in court.
 Knowledge of riles is of limited
value in predicting the outcome of
legal proceedings.

13. SCANDINAVIAN REALIST SCHOOL
 The Scandinavian Realist Moment was contributed by
Hagerstorm, Lundstedt, Oliverona and Alf Ross.
 Like American Realists, they too are concerned to
explain the law as it is but unlike them, they are not
bothered about the functioning of the Courts.
 Disassociated all legal phenomenon from metaphysics.
 Hagerstrom: Legal concepts are meaningless unless
their interpretation is associated with remedies and
other legal procedure.
 Lundstedt: Law is simply the facts of social existence,
all else is illusion. Feelings of justice do not direct the
law, they direct the law.
 Oliverona: Our morality is formed by law and not the
other way round.
 Alf Ross: Jurisprudence is empirical science and
acknowledge the normative character of law.

14.  Reality can be discovered and analyzed
by investigating of the fundamental
facts of the legal system. Metaphysical
speculation should be rejected.
 Jurisprudence must be a natural
science based on empiricism.
Assertions without proof are non-
sense. Hence, Jurisprudential
propositions which cannot be verified
are unacceptable.
 Morality is created by law. Law is not
created by morality. Natural law is an
illusion and jurisprudential arguments
derived from it are unacceptable.
 Law is determined by social welfare
which includes minimum requirements
of material life, security of person,
property and freedom of action. Law
can be understood in terms of
psychological responses to groups of
stimuli.
BASIC FEATURES OF THE SCANDINAVIAN REALISM

15.  Constitution of India has been viewed as Grundnorm in
the Kelsonite sense because all statutes and
enactments have drawn their validity from Constitution of
India and the validity of Constitution lies in the whole
hearted acceptance of the same by the Indian
community without any exception.
 Supreme Court is seen as the custodian of the
Constitution of India. The doctrine of separation of power
is the fundamental requirement for the subsistence of
democracy, as it ensures that no absolute and unlimited
power is vested in any authority.
 However, the Constitution of India establishes the SC of
India as a watching tower above all the big structures of
the other limbs of the State from which it keeps a watch
like a sentinel on the functions of the other limbs of the
State as to whether they are working in accordance with
law and the Constitution, the Constitution being the
supreme.
REALISTIC MOVEMENT IN SUPREME COURT OF INDIA
Indian Judicial System and Legal Realism

16.  The advent of legal realism in India can be seen from the
kaleidoscope of the rich position the SC of India (as the
custodian of the Constitution of India) has earned for
itself over time, amidst the failure of the two other wings
of the State i.e. the legislature and the executive.
 Legal Realism from the Indian stand point can be seen
through the eye of the power of Judicial Review vested
in the SC of India by the Constitution of India. Rise of
legal Realism in India in the form of Judicial Activism and
Judicial Creativity is to be witnessed in the light of the
fact that the Constitution of India is a living document
and the Judiciary at all times must protect the
Constitution of India, not only in matter but also in spirit.
 It is the Judicial Activism of the SC of India that has
turned Article 21 of the Constitution of India into an
Omnibus Article (largely by way of PILs), thereby
creating a new set of rights altogether. Right to Food
-People’s Union for Civil Liberties v. UOI, Right to Shelter
Chameli Singh v. State of U.P; Right to livelihood-Olega
Tellis v. Bombay Municipal Corporation.
REALISTIC MOVEMENT IN SUPREME COURT OF INDIA
Indian Judicial System and Legal Realism cont…

17. List of important cases of realistic movement in the
Supreme Court of India:
 Raja Gopal vs. state of Tamil
Nadu.
 In 1994 a prisoner has been convicted of
murder. And wrote an autobiography he
asked a weekly magazine in madras to
publish it and they decided to publish it.
The autobiography had details of the
murder and the fact that many senior
officials were also involved the officials
obliviously scared claim the story to be
false and sue the publications for liable
and defamation . But the Supreme Court
ruled in favour of the media house stating
that public officials can only sue
publishing houses if the publishing
material was untrue. This judgment
upheld freedom of expression and the
right to privacy.

18. Vishakha & Others vs. State of Rajasthan
 In 1992 Banbawari devi a social worker
was gang rapped in a village in Rajasthan
only because she tried to discourage a
family efforts to wed their one year
daughter . She filed a case and receives a
lot of support from NGOs although their
effort didn’t help her cause directly what
they did helped women all over the
country. It led to the Supreme Court
announcing the verdict that helped protect
women from sexual harassment at the
work place which by extension helped to
established gender equality.
 SC assuming the role of the Judicial
Legislator, laid down guidelines in this
connection, and said that these guidelines
will be the law until Parliament makes a
law on the subject.

19. KM Nanavati vs. State of Maharashtra
 KM Nanavati was a naval officer his wife Sylvia had
an affair with his friend Prem Ahuja On 27 April 1959
Sylvia confessed to her husband that she was in love
with her friend Prem Ahuja he intend to marry her.
Nanavati then dropped his wife and children off and
went to confer him and asked him that if he is willing
to marry Sylvia and take care of his children but Prem
Ahuja refused so Nanavati short him dead and turned
himself in.
 The intriguing story received a lot of media coverage
and the jury was said to have been influenced by it.
Nanavati connections with the influential families were
also sided the reasons for the jury to give decisions in
his favor. The case than went to Bombay high court
were the judge overruled the verdict and found him
guilty of murder and sentence him to life
imprisonment. He was however pardon three years
later. The case through light on the fact that the jury
could be influenced by the others factors too.

20. Khan
 Shah Bano was a mother of five and age sixty
two when she was divorced by her husband in
1978 she filed for alimony which was against the
Islamic custom. The government thus ruled in
favor of her husband.
 But, the Supreme Court however keeping
secularism and welfare of the women in mind
ruled in favor for Shah Bano thus entitling her
maintenance under section 125 of the criminal
procedure code.
 This judgment now thus allows all ex Muslims
wives to basic maintenance of three months
from their ex-spouces, post which their care is
handed over to their relatives or the WAKF
Board.

21. The Nirbhaya case
 On 16th
December 2012 a brutal case of gang
rape and murder shook the nation. The 23 year
old girl assaulted and rapped on a bus. The
criminals than threw her lifeless body on to the
road.
 There were six people involved 5 adult and a
juvenile age 17. The adults were sentenced to
10 years imprisonment while one of them was
found dead in his jail cell during the course of his
trial. The juvenile was send to correctional
official for three years.
 The brutal act in this case had shock people
beyond belief there were lead to country wide
protest to try him as adult this subsequently led
to the replacement to our juvenile justice act
2000 the age bar to be tried as an adult was
lowered from 18 to 16 years.

22. DO JUDGES MAKE LAW?
 It is a debatable question as to whether judges make
law or simply declare an existing one. According to the
declaratory theory of precedent, judges are merely
finders of law and not makers of law. Blackstone said
that judges did not create any new principles of law
through their decisions but simply put a stamp of
authority on the already existing principles of law in the
society. The judges either apply the Constitution or
legislations or a custom to come to a conclusion. Coke
said that judicial decisions are not source of law but as
the proof of what the law is.
 A number of jurist like Gray, Homes, Dicey, Salmond
and others have proved beyond doubt that judges not
only declare law but also make it through their
decisions. The law of torts is almost entirely a creation
of judges through their decisions. Dicey said that the
best part of the law of England i.e. common law is
judge made law. Judges may give a new meaning to
the existing law which becomes a new law.

23. CRITICISM OF THE REALIST SCHOOL OF JURISPRUDENCE-
EVALUATING THE POSITION IN TERMS OF INDIA
 The realist approach to jurisprudence has evoked
criticism from many quarters. The critics alleges
that the exponents of realist schools have
completely overlooked the importance of rules
and legal principles. The perception of law rest
upon the subjective fantasies and life experience
of the judge who is deciding the case or disputes.
Therefore there can’t be certainty and
definiteness about the law.
 Another criticism so often advance against realist
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.
 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 behaviour of the judges. There
are a variety of other factors as well which has to
take into consideration while reaching his
decisions.

24. CONCLUSION
 Law is an official action.
 Judicial pronouncements do not entirely depend on
formal law. They are influenced by human factors
also. Therefore, instead of dogmatic formulation
actual working of law making must be scientifically
examined.
 Law emanates from judges. They are the molders
of justice, judges are influenced by following
 Social, economic and political philosophy.
 Corruption, ambition and interestedness.
 Personality and traders of character.
 Sensitivity and emotions.
 Personal friendship or enmity; and,
 Other extraneous considerations.
 Law is the product of social forces. It is
integral part of complex social world. Truth of
law is a truth of social realities. To know that,
one has to see in action rather than law in
books.

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26. THANK YOU
THANK YOU