Legal Realism – A brief on American Realism & Scandinavian Realism
Legal realism can be described to be an approach to law that is naturalistic in nature. It, in fact emerge as a response to formalism (a type of deductive reasoning followed by syllogism). Realism went against this idea and believed that judges should decide cases based on what their moral compass deems just and take into account of the prevailing culture and how society perceives the facts. It says that the courts should apply the principles and rules that guide the in an objective and logical manner. Society was considered as an important part in an individual’s life and vice versa.
Realism goes against the absolute idea justice and looks more at pragmatic, realistic and empirical principles. Llewelyn even described realism to be a technology and not a philosophy. The legal realism movement was started by Oliver Wendell Holmes Jr. in 1881 when he published the common law. Those who believed in this movement were called realists. The five schools of thought that dominated this movement are-
- Synthesis of different legal philosophies
- Practical approach to a lasting result
- Welfare of society
- Characteristics and persuasion of individual judges
- Economics and power in society
American realism
The aim of American realism is reformation of law. They understand that this cannot be done without first understanding the law. They are pragmatic, behaviorist and skeptical of the rules and concerned more about the ‘law in action’. They are more into the functioning of the court and how the decisions are made. It looked at what law was actually doing rather than what law was supposed to be or what it was. The belief is that the judges are stimulated by the facts rather than the legal application.
Oliver Wendall Holmes
He was an American supreme court judge who was considered as the father of American realism. He said that common law can be identified based on its command of a sovereign or quasi sovereign. He separates morals from law and considers what the court’s judgement to be law. He encouraged the ‘bad man’s view’ of law which said that if anyone wanted to know law, they should do saw from the perspective of a bad man. A bad man was someone who learns the material consequences of law, and in a motive to protect himself from that – learns the law. Law had to be studied like a science rather than a conceptual notion.
Karl Llewelyn
He believes law to be a function providing mechanism and there are certain functions that are to be performed by it. Law had to be regarded as an engine having purpose rather than a value in itself. Law was an institution that performed functions in society and the most important function was to resolve disputes that arise in troubled cases. In his book- ‘The Bramble Bush’ – he says that anyone who resolves disputes is the law itself. He believes that there are mainly two kinds of institutions – major and minor.
Major institutions are functions of the law and some of those functions include
- The adjustment and resolution of troubled cases
- The different allocation of authority and the determination of certain procedure for authoritative decision making
- Preventing the channeling and re-channeling of conduct and expectation to adopt to change
- Have a provision for direction and incentive within the group
Minor institutions include the skill set held by a body of specialists (like lawyers and judges); the practicing of law; the juristic method of common law (method of how common law works
Both the major and minor functions together are required for the full performance of the function of law.
Jerome Frank
He is considered as one of the most radical of the realists. Realists can be classified as fact and rule skeptics. Jerome being a fact skeptic believes that the rule skeptics do not look into the facts while deciding cases and hence the uncertainty in the case eludes them. Depending on just the rules to come up with decisions is like asking parents for permission.
Scandinavian realism
It is a jurisprudential movement that was founded by axel Hagerstrom and jurist Alf ross. The view that law was vital in destroying the distorting influence of metaphysics upon scientific thinking generally was shared by them. This philosophy can be addressed from the view of what is dead and what is alive in the views of concerning the approach to law. One issue was the importance of law in society; without it, it would not be possible to win the lordship over other species. These realists have played an important role in rejecting the tenets of the natural law.
Alf ross
He made an attempt to describe the nature of rule by using his description of legal rules and norms. He believed that norms had two aspects – the correspondence of the directive to some social facts and a directive to do or not to do something. The acts which were done out of a practical necessity and not because of a moral or social obligation would not be a norm. legal rules employ the tool of coercion and their effectiveness depend on the allegiance of the officials to the constitutions of their land. Since legal rules are directed to officials, they are not generally enforced, but voluntarily followed
Axel Hagerstrom
He is regarded as a spiritual father. He strongly criticized the metaphysical foundations upon which law rested. He has mainly critiqued the errors that exist in juristic writing and thought. His analysis is historical, conceptual and psychological but not empirical like that of the American realists. He has stressed the psychological significance of right. He believes that one fought better if he believed that he has right on his side. Axel also believed that similar to classical law, modern law also was ritualistic by nature. Law was compared to liquor and ritual the bottle; the bottle wasn’t really important, but was required to hold the liquor. The idea of good and bad was rejected by him and denied the very existence of such objectified values.
Author: Palguna M,
School of Law Christ University 2 year
What is the ralationship between American and scandinavian legal realists?