JURISPRUDENCE-II
Legal Realism
Legal realism arose as a reaction to formalism.
Formalism argues that the law can determine the outcome of any case
without influence of external factors.
While formalism itself is anti-metaphysical and positivist, realists believe
that it is still too abstract.
Realists say that formalism is too ‘syllogistic’, and it undervalues the role
that judges play in making law and their discretion.
Realists sought to increase knowledge in all fields based only upon
empirical evidence (evidence which can be acquired through the senses).
This was opposed to the knowledge acquired through a priori reasoning;
knowledge acquired without the senses, through logic and reasoning.
Example; a sharp object will cause bleeding; this can be said without
experiencing it.
Realists want jurisprudence to come out of concepts and be directed
towards how the law is experienced in real-time.
The main focus of realism is to gather and study facts relevant to the field
of law, in order to predict what a judge may do.
They believe that judges merely react to the facts which they are
presented and then determine what seems fair to them, rather than relying
on legal rules and principles.
o This is to say that every judicial decision is influenced by the
judge’s political and moral considerations rather than legal.
o Furthermore, to believe this is to say that the legal rules and
principles can’t determine with certainty what the outcome of a
case will be.
, The thought of realists has been dominated and influenced on a large part
by Oliver Wendell Holmes.
He says that the law is not merely logic but also experienced, therefore
the law is only a prediction of what the court will do and what the
individual will experience.
Holmes says that law can be understood if one sees through the lens of a
‘bad man’.
o A bad man will only look towards the consequences of doing
certain actions, and for that, he will rely on experiential knowledge.
o A bad man does not care about legal concepts like justice and
innocence, he is only concerned with what a judge will decide.
Holmes believed that law could be developed using the terms of science;
by the accumulation of facts through which one can predict the outcome
of a case.
o That law can be predicted and its postulates are established from
‘accurately measured’ social desires.
o This means the reliance of legal development upon social sciences
like psychology and economics.
Jerome Frank: he was another staunch legal realist whose main
contribution was the distinction he drew between rule-sceptics and fact-
sceptics, both a part of realism.
Rule sceptics believe that the uncertainty in law can be traced to legal
rules.
Fact sceptics believe that this uncertainty is the result of the nature of
facts and their interpretation.
Frank says that the law is not certain, if it was, there would be no need to
litigate, since everyone would know the decision.
o The fact that the majority of cases have no disputed matter of law,
is evidence that the law is inherently uncertain.
, o He believes our need for certainty in law is linked to our instinct of
safety and security
One can never tell how the facts of a case may impact the judge or jury
and which way it might go.
Karl Llewellyn thinks of law as an institution, it has a specific function
to perform, a ‘job to do’.
In describing these jobs, Llewellyn lays out what he believes is the
function of law;
o Dealing with trouble cases.
o Preventive channelling of conduct and expectations; preventing ill-
conduct and expectations.
o Preventive ‘rechannelling’ of conduct and expectations to adapt to
change.
o Allocation of authority and determining procedures for decision
making.
o Providing direction and incentive.
o Job of the juristic method; the development of skills, techniques,
methods and traditions of the law as an institution.
This development of skills and techniques etc. is what Llewellyn calls a
‘craft’. The law is a practice of this craft.
o It is passed down through generations as education and practical
knowledge.
Llewellyn believes that there is a large amount of ‘predictability’ in the
courts, as opposed to Jerome Frank.
o This is because of the general craft which has been passed down
through the generations.
This predictability can be seen because of a ‘period style’ which is found
in the courts.
Legal Realism
Legal realism arose as a reaction to formalism.
Formalism argues that the law can determine the outcome of any case
without influence of external factors.
While formalism itself is anti-metaphysical and positivist, realists believe
that it is still too abstract.
Realists say that formalism is too ‘syllogistic’, and it undervalues the role
that judges play in making law and their discretion.
Realists sought to increase knowledge in all fields based only upon
empirical evidence (evidence which can be acquired through the senses).
This was opposed to the knowledge acquired through a priori reasoning;
knowledge acquired without the senses, through logic and reasoning.
Example; a sharp object will cause bleeding; this can be said without
experiencing it.
Realists want jurisprudence to come out of concepts and be directed
towards how the law is experienced in real-time.
The main focus of realism is to gather and study facts relevant to the field
of law, in order to predict what a judge may do.
They believe that judges merely react to the facts which they are
presented and then determine what seems fair to them, rather than relying
on legal rules and principles.
o This is to say that every judicial decision is influenced by the
judge’s political and moral considerations rather than legal.
o Furthermore, to believe this is to say that the legal rules and
principles can’t determine with certainty what the outcome of a
case will be.
, The thought of realists has been dominated and influenced on a large part
by Oliver Wendell Holmes.
He says that the law is not merely logic but also experienced, therefore
the law is only a prediction of what the court will do and what the
individual will experience.
Holmes says that law can be understood if one sees through the lens of a
‘bad man’.
o A bad man will only look towards the consequences of doing
certain actions, and for that, he will rely on experiential knowledge.
o A bad man does not care about legal concepts like justice and
innocence, he is only concerned with what a judge will decide.
Holmes believed that law could be developed using the terms of science;
by the accumulation of facts through which one can predict the outcome
of a case.
o That law can be predicted and its postulates are established from
‘accurately measured’ social desires.
o This means the reliance of legal development upon social sciences
like psychology and economics.
Jerome Frank: he was another staunch legal realist whose main
contribution was the distinction he drew between rule-sceptics and fact-
sceptics, both a part of realism.
Rule sceptics believe that the uncertainty in law can be traced to legal
rules.
Fact sceptics believe that this uncertainty is the result of the nature of
facts and their interpretation.
Frank says that the law is not certain, if it was, there would be no need to
litigate, since everyone would know the decision.
o The fact that the majority of cases have no disputed matter of law,
is evidence that the law is inherently uncertain.
, o He believes our need for certainty in law is linked to our instinct of
safety and security
One can never tell how the facts of a case may impact the judge or jury
and which way it might go.
Karl Llewellyn thinks of law as an institution, it has a specific function
to perform, a ‘job to do’.
In describing these jobs, Llewellyn lays out what he believes is the
function of law;
o Dealing with trouble cases.
o Preventive channelling of conduct and expectations; preventing ill-
conduct and expectations.
o Preventive ‘rechannelling’ of conduct and expectations to adapt to
change.
o Allocation of authority and determining procedures for decision
making.
o Providing direction and incentive.
o Job of the juristic method; the development of skills, techniques,
methods and traditions of the law as an institution.
This development of skills and techniques etc. is what Llewellyn calls a
‘craft’. The law is a practice of this craft.
o It is passed down through generations as education and practical
knowledge.
Llewellyn believes that there is a large amount of ‘predictability’ in the
courts, as opposed to Jerome Frank.
o This is because of the general craft which has been passed down
through the generations.
This predictability can be seen because of a ‘period style’ which is found
in the courts.
