The theory of legal realism or the Realistic school of Law is one of the most essential interpretations in jurisprudence. The emergence of the theory of legal realism was highly criticised by the supporters of the naturalistic school of law, as it is a complete juxtaposition of the naturalistic school of law. Legal realism refers to the essence of law and legal concepts derived from various judgements, that is, it believes that the main derivative of the legal concepts is the judgements given by judges and the judicial precedents. Many thinkers have categorised legal realism as having a sociological approach. According to realists, the law is not a set of rules or regulations but is the decisions given by the judiciary.
Origin of the concept of Legal Realism
The origin of legal realism in the USA can be traced back to 1881 when an American jurist and legal scholar, Oliver Wendell Holmes Jr. published the book ‘ The Common Law’ where he emphasized law being an evolutionary subject rather than static. He segregated morals from law and gave the concept of ‘the bad man’s view’ of law. The bad man’s view of law primarily says that when a person violates the law then to protect himself he learns the law. He believed that law is not logic but the experience. He believed that the laws of a country are not the mathematical dimensions but the formulation of various rules and regulations shaped by the history of the country.
The other major founding figure of American Realism is Karl N Llewellyn It is believed that Karl N Llewellyn’s bent towards legal realism emerged from his diversion towards cultural anthropology. His ideas of legal realism were first highlighted in his book ‘The Bramble Bush’. He said that the legal opinions of the judges are influenced by certain factors outside of the law and these factors should be taken into consideration.
The third major contributor to the American legal realism theory is Jerome Frank. Jerome Frank was an ardent follower of Justice Holmes. He believed that there is no certainty of law. He opined that worship of legal rules as the permanent truth is mere delusion. According to him rules change and should change according to social needs. In short, he connected the psychological bases along with the interpretation and permanence of laws and thus he was the first writer in jurisprudence who adopted the psychoanalysis format for diverging the depth of nature of law.
Scandinavian Realism :
This realist movement was founded in the Scandinavia sub-region in Northern Europe. Alex Hagerstrom, Karl Olivecrona and Alf Ross were the pioneers of this realist movement in the Nordic countries. They criticized the mythological, theological and metaphysical influence over the concept of law. They strongly emphasized the pragmatic and scientific influence over the concept of law.
Alex Hagerstrom, a professor of Philosophy was the major founder of this realistic movement. He primarily focused on the idea of a scientific and realistic approach to law rather than idealistic. He believed that law comes into existence as per the will of human beings. Legislators form the laws according to the need of society. But whether that law is dependent on the moralist idea of what is right and what is wrong is a debatable aspect. He also rejected the concept of rights and duties, as he believed that the origin of this concept came from some form of magical and mystical beliefs as present in the concepts such as mancipatio of ancient Roman law. He argued that the obligatory nature of law comes from some form of supernatural power from the existential world of time and space. He believed that rights are an effective way of maintaining the effectiveness of order in a society, as a person will follow rules more promptly if he knows that there are certain rights on his side as well. But his prime focus was on the argument that law may or may not be a selfish creation of human beings. He focused on the intent by which a particular law is formed. Thus his idea of law has a nihilistic approach. He categorically rejected the positivist and naturalistic thoughts of law. He believed that law is the set of rules that are framed to maintain behaviour which is considered acceptable by human beings.
Karl Olivecrona, in his publication the First Edition of Law as Fact and its expanded Swedish version Om Lagen och Staten [On Law and the State], gave his realistic view of the law which was very much influenced by Hagerstrom. He also emphasized that the binding force of law comes from some form of the supernatural realm which is not beyond the world of time and space, an argument same as that of Hagerstrom. This argument is an amalgamation of metaphysical and scientific views. He further believes that law is not a command but an independent imperative. He emphasized that whether a law will be followed or not depends on the person receiving the command to follow the law. He further says that the binding force of the law is an organised force in which the law generates a sense of obligation in the receiver.
Alf Ross’s legal philosophical view was presented through his publication Om ret og retfaerdighed (On Law and Justice). The prime focus of his work was on the sociology of law. He emphasized on the behaviour of judges to be taken into consideration for studying the legal aspects. His theory of realism is dependent on an analysis of judicial behaviour and the joint legal ideology of judges in interpreting modern law. He further emphasises the effect of the law on society to be the most efficient way to look into the pragmatic aspect of law as the regulator of society.
Thus, the viewpoints of the thinkers of the realistic school give an outlook of a practical and ever-evolving approach towards analysis and study of law where the main emphasis is on the scientific nature of the dynamic implementation and evolution of law. The realistic school of law adopts a pragmatic approach towards the application and interpretation of the law and legal principles, which in turn impacts the study and analysis of legal jurisprudence in a segregated form from that of other schools of law.
Author(s) Name: Ruchi Mahil