Realist School

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Realist SchoolRealist School

The realist movement is a part of the

sociological approach and issometimes called the left wing of thefunctional school or sociological

school. It rejects the traditional theory of law

that is a body of rules and principals

that courts enforce and concentrateon the decision given by law courts.

The decisions are based not only on

formal law but also on the human

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Realists believed that law is not ascientific enterprise in which

deductive reasoning can be appliedto reach a determinate outcome inevery case. Instead, most litigation

presents hard questions that judgesmust resolve by BALANCING theinterests of the parties and ultimatelydrawing an ARBITRARY line on oneside of the dispute

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Reason for the establishmentReason for the establishment

To point out the importance of courts

and judges the human factor in thejudges and the lawyers.

Influenced by the pragmatic

philosophy from abstraction and apriori principles they turn towardsfact and action.

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American RealistsAmerican Realists

American Realism is a combination of

the analytical positivist andsociological approaches.

It is positive in that it first considers

the law as it is and as the expressionof the will of the State, but see this asmade through the medium of the

Courts. Realists are interested in sociological

factors that influenced law and their

concern is with law rather than with

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The realist approach is highlyempirical. They propounded that Law

i.e. the decisions of judges, are theproduct of ascertainable factorsincluding amongst these are:

Their personalitiesTheir social environment

The economic conditions in which

they have been brought upBusiness interests

Trends and movements of thought

Emotions and psychology

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For example, when a court is askedto decide whether a harmful business

activity is a common-law NUISANCE,the judge must ascertain whether theparticular activity is reasonable.

The judge does not base thisdetermination on a precise algebraicequation.

Instead, the judge balances thecompeting economic and socialinterests of the parties, and rules infavor of the litigant with the mostersuasive case.

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John Gray and Oliver Holmes areprominent jurist of this school.

Gray defines law as what the judgesdeclares. He contended that courtsput life into the dead works of the

statute and everything else includingstatues until interpreted by a court.

Oliver Holmes also propounded the

theory on the similar lines of Grayand defined law in term ofconsequences. He also contendedthat there is no law until a court hasassed ud ment on certain facts.

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CriticismCriticism

Too much importance to human

factors

Undermined the importance of legalprincipals and rules

It was wrong to say that certainty inlaw is a myth.

All emphasis on litigation, but there

are so many laws which never comebefore a court of law