What were the main causes of the origin of “Realist School” ? Write a Note on Modern Realism of America. (2016) -20Marks
Category : Jurisprudence – I
AMERICAN REALIST SCHOOL OF JURISPRUDENCE
Some jurists refuse to accept the realist school as a separate 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.
ORIGIN AND HISTORY OF THE AMERICAN REALIST SCHOOL:
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States of America. American Legal Realism is often remembered for its challenge to the Classical legal claim that orthodox legal institutions provided an autonomous and self-executing system of legal discourse untainted by politics.
The realist school has been divided into two parts:
1 Scandinavian Realism
2 American Realism
Both are hostile to formalism that treats law as a lifeless phenomenon. Both adopt radical empirical methods that seek to explain law in terms of observable behavior (examining cause and effect) and both are antagonistic towards metaphysics and values. Scandinavian Realism is existed in Europe, Sweden, Norway, England and Scandinavian countries. This school of realism was supported by Axel Hagerstrom, A.V. Lundstedt and Karl Olivecrona.
Realist thinking was introduced to American jurisprudence by Oliver Wendell Holmes. Oliver Holmes has been described as the intellectual inspiration and even the spiritual father of the American realist movement. Holmes was skeptical of the ability of general rules to provide the solution to particular cases and readily gave credence to the role of extra-legal factors in judicial decision-making. Holmes gave the first and classic exposition of the courtfocused approach in 1897, sowing the seeds for realism, in a paper called The Path of the Law.
AMERICAN REALIST MOVEMENT:
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’. The realist movement began in the 19th century in America and gained force during the administration of President Franklin D. Roosevelt. The realist movement in United States represents the latest branch of sociological jurisprudence. Which concentrates on the decisions of law courts. Sometime it is called the ‘left wing of the functional school.’ This movement named as realist because this approach studies law, as it is in actual working and its effects. Realism was a movement without a clearly articulated theoretical foundation of its own. Some jurists refuse to accept realism as a separate school of jurisprudence. According to Llewellyn, “there is no realist school as such, it is only a movement in thought and work about law.” Realism is the anti-thesis of idealism. American realism is a combination of the analytical positivism and sociological approaches. Julius Stone calls the realist movement a ‘gloss’ on the sociological approach.