certainty of law is a Legal myth. Discuss in Brief. (2016)
Category : Jurisprudence – I
AMERICAN REALIST SCHOOL OF JURISPRUDENCE
American realism is a combination of the analytical positivism and sociological approaches. It is positivist in that it first considers the law as it is. On the other hand, the law as it stands is the product of many factors. In as much as the realists are interested in sociological and other factors that influence the law. Their concern, however, law rather than society. Realists don’t give any importance to laws enacted by legislature. And they uphold only judge-made law as genuine law. A great role of judges’ understanding about law, society and also their psychology affect any judgment given by them. At the same time, in a same case applying same law two different judges give the different judgments.
Realism denounces traditional legal rules and concepts and concentrates more on what the courts actually do in reaching the final decision in the case. In strict sense, realists define law as generalized prediction of what the courts will do. Realists believe that certainty of law is a myth and its predictability depends upon the set of facts which are before the court for decision. It presupposes that law is intimately connected with the society and since the society changes faster than law so there can never be certainty about law. They do not support formal, logical and conceptual approach to law. The realist school evaluates any part of law in terms of its effect. Jerome Frank has stated, “Law is what the court has decided in respect of any particular set of facts prior to such a 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.” The judges’ decisions are the outcome of his entire life history.”
MEANING AND DEFINITION OF THE AMERICAN REALISM:
The insights of legal realism are mainly negative, revealing a deep skepticism about the model of rules, about any general and abstract theory of the law. Realism was not consolidated into a definite, coherent theoretical system; it can at best be described as a ‘movement’ or ‘historical phenomenon’ rather than a ‘school of thought’. American Legal Realism expressed a set of sometimes self-contradictory tendencies rather than a clear body of tenets or a rigorous set of methodologies or propositions about legal theory. 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”.