SOCIOLOGICAL MOVEMENT IN LAW FROM AMERICAN FORMALISM TO AMERICAN REALISM

INTRODUCTION

At the time of “Civil War” and “World War – I”, fundamental changes occurred in the American thought. The jurisprudence that flourished during the period of American Revolution and the Civil War was termed as the – “Grand Style” by “Karl Llewellyn”. When the Civil War came to an end it gave way to “American Formalism”. And later on the American thinkers such as “Karl Llewellyn” “Oliver Wendell Holmes”,  and “Roscoe Pound” and initiated the “sociological movement in law” that sought to replace legal formalism with an alternative form of jurisprudence known as “American Formalism” which was considered to be more pragmatic, predictive and positivistic.

Grand Style

The Grand Style of judging was based on situation sense, i.e. in all court decisions, three circumstantial factors were considered by the Judge: the consequences of law, the context in which the legal facts are embedded, and lastly the experience, value and knowledge of the judge and the court. It gave emphasis on “horse sense” and intuition. The judge under this system was less likely to consider abstract legal principles that were applied systematically to the generalities of the case, and there was a higher chance of considering extralegal factors like economic and political influences having a specific bearing on the particulars of the case by the Judge[1].

Legal Formalism

As the American society transformed itself from agrarian society to industrialized one, it led to the growth of American entrepreneurs, who wanted a legal system of logic and generality; and hence it was the successful efforts by entrepreneurial and mercantile groups to transform the law to serve their interests, leaving them to conceive law as a system of logically deducible rules. “Legal Formalism” refers to the process of adjudication whereby judges logically deduce legal rules from a complete and inclusive set of fixed axioms and subsequently apply those rules, when they render a judicial opinion[2]. The procedure of legal formalism is described as “judicial opinions running in deductive form with an air of expression of single – line inevitability” by “Karl Llewellyn”. The Grand Style looked into practicality and specifies of social needs in its judicial decision making, legal formalism created a system that was highly general, conceptualist and logical.

American Legal Realism

The Realist movement consisted of a large and divergent group of jurists, law professors and practicing lawyer to make more accurate predictions regarding the outcome of the cases. Three great thinkers – “Oliver Wendell Holmes”, “Roscoe Pound” and “Karl Llewellyn” are associated with Legal Realism in America. The realist movement enlarged the field of legally relevant by considering extralegal, or social and psychological factors influencing the judge’s decision in a particular case.

Oliver Wendell Holmes, Jr. and his critique of Legal Formalism

The keynote of Holmes’s argument was that the law emerges and develops according to the considerations that are expedient to society. He regards the true source of law as “the will of de facto supreme power of community”.  Holmes’s most famous work “The Common Law” which criticizes the American Formalism, states that, the practical experience and not the logic, has been the life of the law. As the judges must consider the various ends and desires of the competing social groups, court decisions are not certain and absolute, but change constantly and are relative. Legal formalism revealed its inadequacy in meeting the social ends.

Roscoe Pound theory of social interests

According to Pound, legal formalism ran into the problem of not being able to adapt to the changing conditions of the time. There existed a discrepancy between the “law in books” and “law in fact”. He sees legal formalism as scientific, and one of the benefits of science is that it transforms law into a reasoned body of principles for the administration of justice. A scientific jurisprudence reduces the judges’ biases, ignorance and possibility of corruption as it prevents his or her departure from clearly articulated and predetermined rules. But this had made law very rigid and absolute.

Pound listed six types of social interest dealing with –

  • General Security.
  • The security of social institutions.
  • General Morals.
  • The conservation of social resources.
  • General progress
  • Individual life.

Pound succeeded in directing the attention of legal establishment of the legal establishment of his time to the practical concerns of the study of the law and to the law’s relationship with the society.

Karl N. Llewellyn and his basic tenets of Legal Realism

His article “A Realist Jurisprudence – The Next Step” was the first self-conscious statement of legal realism by him. In this article he makes a distinction between “paper rules” (that are accepted doctrine of time and place) and “real rules” (that are symbols for practices of the courts, public officials and administrative agencies).

Tenets of Llewellyn[3]
  • In law making, judicial decisions must also be consciously involved.
  • So that the society could achieve its desired social ends, jurists must involve themselves actively in implementing the laws.
  • Jurists must ensure that the law keeps pace with societal changes.
  • “Is” and “Ought” should be distinguished to achieve an objective science of law.
  • The “paper rules of legal formalism” do not reflect the real rules of the court, nor can predict the outcome of the court.
  • The idea of legal formalists that “doctrinal rules and concepts” are the crucial factors that determine the courts decisions is rejected by the Realists.

Conclusion

The influence of Legal realism on American Jurisprudence had been significant. The Realists through their theories and tenets have tried to emphasize that law has to adapt to changing conditions of the society. Law should not be absolute or too rigid as the rigidity of the law prevents it from taking into account interests, practical needs and wants of the individuals the law is meant to serve. Therefore several amendments are made in law, so that it could adapt to the changes that takes place in the society. The founding fathers of the “Constitution of India” therefore designed it in such a way that, it is not too rigid and is flexible to accommodate the changes.

Author(s) Name: Nivedita Tiwari (SRM University)

References:

[1] Taylor and Francis Group, https://www.taylorfrancis.com/chapters/edit/10.4324/9781315135069-6/sociological-movement-law-javier-trevi%C3%B1o accessed on 14 September 2021

[2] A. Javier Trevino, The Sociology of Law (first published 2008, Transaction Publishers) 57

[3] V.D. Mahajan, Jurisprudence and Legal theory (Eastern Book Company,5th edn, 2021)  572- 573

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