INTRODUCTION

The realism is the anti-thesis of idealism. 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 dont 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.

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.

BASIC FEATURES OF REALIST SCHOOL:

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.

There are certain principal features of realistic jurisprudence as outlined by Karl Llewellyn and
Prof. Goodhart:
1.

There has to be a conception of law in flux and of the judicial creation of law.

2.

Law is a means to social ends; and every part of it has constantly to be examined for its

3.

purpose and effects, and to be judged in the light of both and their relation to each other.
Society changes faster than law and so there is a constant need to examine how law meets

4.

contemporary social problems.

Realists believe that there can be no certainty about law and its predictability depends upon the

set of facts which are before the court for decision.

5.
They do not support formal, logical and conceptual approach to law because the Court while
6.

deciding a case reaches its decisions on emotive rather than logical ground.
They lay greater stress on psychological approach to the proper understanding of law as it is

7.

concerned with human behavior and convictions of the lawyers and judges.
Realists are opposed to the value of legal terminology, for they consider it as tacit method of

suppressing uncertainty of law.

8.
The realists introduced studies of case law from the point of view which distinguished between
rationalization by a judge in conventional legal terminology of a decision already reached and
9.

the motivations behind the decisions itself.

The realists also study the different results reached by courts within the framework of the same
rule or concept in relation to variations in the facts of the cases, and the extent to which courts
are influenced in their application of rules by the procedural machinery which exists for the
administration of the law.

REALISM IN THE INDIAN CONTEXT:

The legal philosophy of the realist school has not been accepted in the sub-continent for the
obvious reason that the texture of Indian social life is different from that of the American lifestyle. The recent trends in the public interest litigation widened the scope of judicial activism to a
great extent but the judges have to formulate their decisions when the limits of constitutional
frame of the law by using their interpretative skill. In other words the judges in India cannot
ignore the existing legislative statutes and enactments. They have to confine their judicial
activism within the limits of the statutory law. They are free to overrule the previous decisions on
the ground of inconsistency, incompatibility, vagueness, change of conditions etc. Thus the

Indian legal system, though endows the judges with extensive judicial discretion, does not make
them omnipotent in the matter of formulation of law. The legislative statutes and enactments,
precedents and the rules of equity, justice and good conscience are indispensable part of the
judicial system in India. The constitution of India itself provides ample scope for the judges to
take into consideration the hard realities of socio-economic and cultural life of the Indian people
while dispensing social and economic justice to them.
In short, it may be reiterated that though Indian jurisprudence does not formally subscribe to the
realists legal philosophy, it does lay great stress on the functional aspect of the law and relates
law to the realities of social life. Again, it refuses to accept the realists view that Judge-made
law is the only real law and other laws are worthless, but at the same time it does not
completely ignore the role of Judges and the lawyers in shaping the law. Thus it would be correct
to say that the Indian legal system has developed on the pattern of sociological jurisprudence as
evinced by the post-independence socio-economic legislation but it considers doctrine of realism
alien to Indian society which has a different life-style and social milieu. Undoubtedly, the Indian
judges do have the liberty of interpreting law in its contextual and social setting keeping in view
the social, economic, political, cultural, historical and geographical variations of the Indian
society. The power of review and doctrine of overruling its earlier decisions has enabled the
Supreme Court to effectuate the socio-economic contents of the constitutional mandate through
the process of judicial interpretation and use of its inherent powers. Thus the Apex Court in
Bengal Immunity Case overruled its earlier decision in Dwarkadas v. Sholapur Spinning
Co.and observed that the Court is bound to obey the Constitution rather than any decision of the
Court, if the decision is shown to have been mistaken. Justifying its stand, the Court further
observed that where a constitutional decision affects the lives and property of the public and
where the Court finds that its earlier decision is manifestly wrong and injurious to the public
interest, it should not hesitate to overrule the same.

RESEARCH QUESTIONS

Whether realists give any importance to laws enacted by legislature?

Whether they support formal, logical and conceptual approach to law?

OBJECTIVE

To define law as generalized prediction of what courts will do.

It simply seeks to determine that what the law is.

RESEARCH METHODOLOGY
This research is purely doctrinal and researcher has referred to secondary source.
LITERATURE REVIEW
It is the closest what India has to natural law and ethos, and finds its ultimate aim in the welfare
of society. It includes anything that is right, just and moral. It originates from the Vedas and is a
time immemorial concept. This paper analyses the decline of dharma with the advent of positive
law and how it found its way in legislations in India post-independence.

WEB SOURCES
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