American Realist School of jurisprudence

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 realist are interested in sociological
and other factors that influence the law. Their concern, however, law rather than society. Realist
don’t give any importance to law enacted by legislature. And they uphold only judge made laws as
general law. A great role of judges understandings about law, society and their psychology affect any
judgement given by them. At the same time, in a same case applying same law two different judges
give different judgements.

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 realist define law ass generalized
predictions of what the courts will do. Realists believe that certainty of law is a myth and its
predictability depends upon the set of facts which are before the court for decision.

The insights of legal realism are mainly negative, revealing a deep scepticism about the model of
rules, about any general and abstract theory of law. Realism was not consolidated into a definite,
coherent theoretical system; it can at best be described as a ‘movement’ or historical phenomenon
rather that a school of thought. American realism expressed a set of sometimes self contradictory
tendencies rather than a clear body of tenets or a rigourous 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”.

BAD MAN THEORY BY OLIVER WNEDELL HOLMES

Bad-man theory is a jurisprudential doctrine or belief, according to which a bad person’s view of the
law represents the best test of what exactly the law is because that person shall carefully and
precisely calculate what the rules allow and operate up to the rules’ limits. This theory is also known
as prediction theory.

This theory was first adopted by Oliver Wendell Holmes who mentioned that a society’s legal system
is defined by predicting how the law affects a person, as opposed to considering the ethics or morals
underlying the law.

Under this theory, the prediction is done by viewing the law in accordance with a bad man’s point of
view who is not bothered about morals. Such a person is unconcerned with acting morally. Instead,
such a person would be concerned about the degree of punishments certain acts will incur by the
public force of law.

Holmes believed that the law should be defined as a prediction, most specifically, a prediction of
how the courts behave. His rationale was based on an argument regarding the opinion of a “bad
man.” Bad men, Holmes argued in his paper The Path of the Law, care little for ethics or lofty
conceptions of natural law; instead they care simply about staying out of jail and avoiding paying
damages. In Holmes’s mind, therefore, it was most useful to define “the law” as a prediction of what
will bring punishment or other consequences from a court.

The theory played a key role in influencing American Legal Realism.

Holmes wrote that “a bad man has as much reason as a good one for wishing to avoid an encounter
with the public force, and therefore you can see the practical importance of the distinction between
morality and law”. Nearly every man wants to avoid the disagreeable consequences of disobeying
the law, but not all want to obey the law only to obey it.

Law should be about experience and not logic.

 A distrust of the judicial technique of seeming to deduce legal conclusions from so-called
rules of law. The realists believed that judges neither do nor should decide cases
formalistically. Law is not, as the formalists claimed, a system of rules that is clear,
consistent, and complete. Rather, the law is riddled with ambiguities, contradictions, gaps,
vague terms, and conflicting rules of interpretation. As a result, there is often (perhaps
always) no uniquely correct answer to any hard case that appellate judges decide. Law is
incurably "indeterminate."
 A belief in the instrumental nature of the law. Like Dewey and Pound, the realists believed
that law does and should serve social ends. Judges unavoidably take account of
considerations of fairness and public policy, and they are right to do so.[9]
 A desire to separate legal from moral elements in the law. The realists were legal positivists
who believed that law should be treated scientifically. A clear distinction should be drawn
between what the law is and what it should be. Law can only be viewed as an empirical
science, as it ought to be, if moralistic notions are either excluded or are translated into
empirically verifiable terms. The idea that legal talk of "duty," "right," etc. is really just talk
about how judges are likely to decide cases, is a clear example of how many realists tried to
purge law of moralistic language and translate everything into "realistic" talk of actual
consequences and testable predictions

Path of law

JEROME FRANK- RULE SKEPTICS VS FACT SKEPTICS

Jerome Frank was initially a practicing lawyer. He served in the law department of the government
for a decade. In 1941 he was appointed as a judge of the United States Circuit Court. He was also a
visiting professor of law in Yale law school. His classical work is “Law and the modern mind”. This
work presents a very close examination of the judicial process and is full of practical illustrations. His
thesis is that law is uncertain or certainty of law is a legal myth. He exploded the myth that law is
continuous, uniform, certain and invariable and asserted that the judges do not make the law,
instead they discover it. Frank observes that a judge’s decisions are the outcome of his entire life
history.

He gave the FATHERS’ SYMBOL THEORY. The child puts his trust in the power and wisdom of his
father to provide an atmosphere of security. In the adult the counterpart of this feeling is the trust
reposed in stability and immutability of human institutions. Frank suggested that the quest for
certainty in law is in effect a search for a ‘father-symbol’ to provide an aura of security, and although
he attributed great prominence to this factor. He offended it only as a ‘partial explanation’ of what
he called the ‘basic myth’, and listed fourteen other explanations as well.

Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty is
inherent in it. Therefore mere technical legal analysis is not enough for understanding as to how law
woks. Frank accordingly divided realist into two camps. The ‘rule skeptics’ and ‘fact skeptics’. The
rule sceptics rejected legal rules as providing uniformity in law and tried instead to find uniformity in
rules evolved out of psychology, anthropology, sociology. The rule sceptics avoided that criticism by
saying that they were not depriving purposive ‘ought’ but only predictions of judicial behaviour
analogous to the laws of science. Frank called this brand of realism the left-wing adherents of a right
wing tradition, namely the tradition of tying ot find uniformity in rules. The fact sceptics rejected
even this aspiration towards uniformity. He abandoned all attempts to seek rule-certainty and
pointed to the uncertainty of establishing even the facts in trial courts. It is impossible to predict
with any degree of certainty how fallible a particular witness is likely to be.

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