4. “ Law is what the Court has
decided in respect of any
particular set of facts prior to
such 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.”
- Frank Jerome : Modern Law and Mind (1930)
5. ANTI-THESIS of Legal Idealism theory.
Law as a generalized prediction of ‘What the
Courts will do’.
Evaluation of law in terms of its effect.
Denounces traditional legal rules and
concepts.
No importance given to legislature-enacted
laws.
Only judge-made law upheld as genuine.
Applying the same law, two different judges
give different judgments.
Certainty of law is a myth because it is
connected with the ever-changing society.
8. Gained force during the term of President
Franklin D. Roosevelt in 19th century.
Represents the latest branch of sociological
jurisprudence.
‘Movement’ or ‘Historical Phenomenon’, than a
‘School of thought’ – not a definite coherent
theoretical system.
Studies law as it is, as it is in its actual working
and its effects, investigate the realities of modern
society in their relation to modern law.
Mental fathers of the movement-
1) John Chipman Gray
2) Oliver Wendell Holmes
9. FEATURES OF REALIST
MOVEMENT
No Realist school, only movement in thought and
work about law.
It means a conception of law in flux and as a
means to social ends. It implies a society which
changes faster than law.
Distrusts traditional legal rules and concepts so
far as they purport what either courts or people
are actually doing.
Accepts the definition of rules as a “generalized
prediction of what the courts will do”
Insists on the evolution of any parts of law in
terms of its effect.
10. American Realism and Legal
Positivism
Share one important belief :-
Similar views on the difference
between the ‘law as it is’ and
the ‘law as it ought to be’.
11. American Realism and Sociological
Approach
Unlike the sociological approach,
realists are not much concerned about
the ends of law, but their main
concern is on a scientific observation
of law and its actual functioning.
12. American Realism and Natural Law
According to Natural Law school, laws
are made by the nature or God itself,
but the Realist school believes that
laws are made by judges or juristic
persons.
13. John Chipman Gray
Exponent of the analytical tendency in
jurisprudence.
“The law is what the Court decides”.
Placed the judge in the centre instead of
the statutory legislation – shook the
position of analytical jurisprudence.
Prepared the ground for a more skeptical
approach of the law, which further laid the
ground for Oliver Wendell Holmes’
empirical and skeptical definition of law.
14. “Take the fundamental question, what constitutes the
law…You will find some text-writers telling you…that it
is a system of reason, that it is a deduction from
principles of ethics or admitted actions, or what not,
which may or may not coincide with the decision. But if
we take the view of our friend, the bad man, we shall
find that he does not care two straws for the action or
deduction, but that does want to know what
Massachusetts or English courts are likely to do in
fact. I am much of his mind. The prophecies of what the
courts will do in fact and nothing more pretentious are
what I mean by the law”
- Oliver Wendell Holmes’ definition of law
15. Oliver Wendell Holmes
Distinguished judge and thinker.
Described as the intellectual inspiration and spiritual father of
the American Realism Movement.
He was skeptical of the ability of general rules to provide the
solution to particular cases.
Gave credence to the role of extra-legal factors in judicial
decision making.
Defined law in terms of its consequences and what seemed to
demolish the analytical certainty and any connection between
law and ethical ideals.
Sowed the seeds for Realism in a paper called, “The path of
law”.
