In America, sociological school of jurisprudence has developed as an extreme wing under the name of the ‘realist school’. The sociological method has brought legal science into intimate relation with the facts of social life and made jurists recognize law as a product of social forces.
The realist movement applies the method with special reference to those aspects of the law, which are connected with courts in the application of law. These realists regard law as emanating from judges. GRAY said, “Law is law, if made or given by judges. The judges are the makers of law.”
The realist movement concentrated its attention on the role of the judges in the interpretation of law. Its exponents regarded judges as moulders of the law who have greater freedom of choice in coming to decisions than is usually acknowledged by the exponents of ‘analytical jurisprudence’. Therefore, the realist school insists upon a study of the personality of the judges to forecast with greater accuracy probable judicial action in a given situation.
One of the greatest of American Judges OLIVER WENNELL HOLMES is regarded as the spiritual father of the movement. He said, “The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by law.”
According to HOLMES, “Law is what the courts do; it is not merely what the courts say.” Emphasis is on action. As Holmes would have it, “The life of the law has not been logic; it has been experience.” A legal duty so called is nothing, but a prediction that, if a man does or omits certain things, he will be made to suffer in this or that way by judgment of the court. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. The duty to keep a contract at common law means a prediction that you must pay damages, if you do not keep it and nothing else.
The view of LLEWELLYN was that “law was that lawyers did. This doing of something about disputes; this doing of it reasonably is the business of law and the people who have the doing in charge whether they be judges or sheriffs or clerks of jailors or lawyers or officials of the law and what these officials do about disputes, is the law itself.”
LLEWELLYN proposed that the focal point of legal research should be shifted from the study of rules to the observance of the real behaviour of the law officials, particularly the judges.
Llewellyn has set forth the following cardinal features of American realism:
The realists have been divided in two categories:
According to JUSTICE FRANK “the craving for certainty and guidance with which the men regard the law is partly due to their desire for security and safety which we all carry within us as a legacy.”
Critics of the American Realist School point out that it is wrong to say that what judges say is never a guide to what they do. Judges sometimes say that they are bound by rules. Even when they circumvent the rule, they do so in a manner, which conceals the fact that they are doing so. They at all the time give impression that they are bound by rules. The realists do admit the part played by rules, but their writings have created a wrong impression about the same. Thus, the recognition of rules by the courts emphatically makes it clear that theories of legal realism too, like positivism, look on law, as the expression of the will of the state but only difference is that the propounders of such legal realist theories do so and see this as made through the medium of courts.
Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.