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Realists School of Jurisprudence
Five Essential Characteristics of Realists School of Jurisprudence:
1. What is the element which is called law? 2. What is the nature of the law? 3. What makes law obligatory? 4. What is the source of law? 5. What are their philosophical views?
1. See law as the practice of the Courts. 2. Look upon law, as the expression, or the will of
the State, but sees it as made through the medium of Courts.
3. Law no doubt, is the command of sovereign, but the sovereign to the realists is not the Parliament but Court.
4. Law is the prophecies, predictions of what the Courts will decide and nothing more.
5. Life of law is not logic it is an experience.
6. They impress upon judge made law. 7. Authority behind law, is force though it may
be in a different form. 8. Law in Books, and law in Practice is different. 9. The source of law is ‘Judicial Precedent’.
Common approach of the Realists:
The theories of the Realists cover a very wide range of jurisprudential speculation and there are denials of their constituting a unified school of thought. Nevertheless, their approach to the study of law has a common basis.
Llewellyn: Numerates the following views as common to the realist’s a approach to method.
(a) A view of the law as in flux. (b) An attitude to law, not as an end in itself, but
as a means to a social end. (c) A belief that society is in a continuing
process of change and often “ahead” of the law, so that continuous re-examination and revision of law is essential.
(d) An acceptance of the necessity for divorcing - if only temporarily - “is” and “ought” for purposes of legal study. (“After the purely scientific problem has been solved. The hour of ideals and value judgments occurs.”)
(e) A distrust of traditional concepts and legal rules as a description of what the Courts are doing.
(f) A refusal to emphasis the significance of prescriptive rules in producing decisions of the Courts.
(g) A stress on the importance of grouping cases into very narrow categories.
(h) A stress on evaluation of the law in terms of its impact and effects on society.
(i) A belief in the significance of what can be achieved by a sustained, planned attack on legal problems.
Justice Holmes: Bad Man Theory: ask a lay man …what is Law?
…answer would be ….what the Court lays down in the case of a person to whom you asked ….what is Law?
Focused on the COURT: what the Court does? JUDGE: personality of the Judge plays a vital role
in the process of administration of Justice. Factors like: Social, Political, Financial and
Educational atmosphere at home and the working place play another important role in administration of Justice.
The Vital Nature of Objectivity in Investigation:
Fundamental to the Realists School is the belief in the necessity of objective methods of investigation.
(a) Oliphant: Comments that the jurist needs “some of the humility of the experimental physicist or chemist who wastes no time in worrying about the absence of ultimate and abstract rational structures”.
(b) Llewellyn: Comments that, although ideals are valuable, “once a problem is set, every effort must be bent on keeping observation uncontaminated by other value judgements that the desirability of finding out, of being objective and accurate…”