The Realist School of Jurisprudence

Every Indian driver knows two speed limits. One is painted on the signboard. The other is the speed at which the traffic police actually start issuing challans. If you want to know what will happen to you on that road tomorrow, the second number matters more. That, in one picture, is legal realism. When a client asks a lawyer 'what is the law?', the realist says, he really wants to know what the court will do with his case. The rule in the statute book is only one influence on that result; the facts as found, the judge's sense of fairness, policy and even personality all enter the decision. Realism therefore turns from law in books to law in action, and from the logic of the judgment to the behaviour of the judge.

Figure: The realist iceberg: the paper rules of the statute book are the visible tip, while the operative law lies below the surface in what judges and officials actually do

1. Meaning and Characteristics of Legal Realism

Legal realism studies law as it actually operates, through the decisions of courts and the conduct of officials, rather than as it is stated in rules. It flourished in the United States in the 1920s and 1930s as a revolt against formalism, the belief that judges deduce decisions mechanically from settled rules. It is often called the left wing of the sociological movement: it shares Pound's interest in law in action but is far more sceptical about rules.

2. The Forerunners: Holmes and Gray

Oliver Wendell Holmes Jr.

Holmes is the fountainhead of American realism, and examiners test which of his two famous sentences comes from which work. In The Common Law (1881) he wrote: 'The life of the law has not been logic: it has been experience.' The felt necessities of the time, prevalent moral and political theories, and even the prejudices judges share with their fellow men, he said, have had more to do with shaping the rules than the syllogism. In The Path of the Law (1897), an address at Boston University, he gave the prediction theory: 'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.'

To make the point vivid Holmes invented the bad man, who cares nothing for conscience and wants only to know the material consequences the court will attach to his conduct. For him a legal duty is simply a prediction that he will suffer if he does certain things. Holmes was not praising the bad man; he was using him to separate law from morality and show what the law, as distinct from ethics, actually does. As a Justice of the US Supreme Court he put the same scepticism into his dissent in Lochner v New York (1905): 'General propositions do not decide concrete cases.'

John Chipman Gray

Gray, in The Nature and Sources of the Law (1909), separated the law from the sources of law. The law of the State is composed of the rules which the courts lay down for the determination of legal rights and duties. Statutes, precedents, expert opinion, custom and morality are only sources from which courts draw those rules; a statute is not law until a court has said what it means. Gray relied on a passage from a sermon of Bishop Hoadly: whoever has an absolute authority to interpret any written or spoken laws is truly the law-giver, and not the person who first wrote or spoke them.

3. Pound and the Realist Debate

The phrase 'law in books and law in action' belongs to Roscoe Pound (1910; see Note 14). The realists pushed his contrast further than he wished. In 1931 Pound's 'The Call for a Realist Jurisprudence' criticised the younger writers, and Llewellyn replied the same year with 'Some Realism about Realism'. The difference is one of degree: Pound still trusted rules and principles as instruments of social engineering, while the realists doubted that rules decide cases at all.

4. Jerome Frank: The Basic Legal Myth and Fact-Scepticism

Jerome Frank, a practising lawyer who later sat on the US Court of Appeals for the Second Circuit, attacked in Law and the Modern Mind (1930) the basic legal myth: the belief that law is, or can be made, certain and predictable. His explanation was psychological, the father-figure thesis. A child relies on his father as an infallible authority who makes the world secure; the adult who has lost that certainty seeks a substitute and finds it in an imagined law that is complete and unchanging. The mature lawyer must give up this childish longing and accept that uncertainty is built into law.

Frank divided the realists into two camps. Rule-sceptics (Llewellyn is the main example) doubt that paper rules decide cases and look for the real rules courts follow, mostly at the appellate level. Fact-sceptics, Frank above all, say that even perfectly certain rules cannot make results predictable, because the facts are found by a trial court from fallible witnesses and by a judge or jury whose reactions no one can forecast. Frank developed this trial-court realism in Courts on Trial (1949), pressing for reform of fact-finding and the training of trial judges.

Hutcheson and the judicial hunch

The judicial hunch comes from Judge Joseph Hutcheson, 'The Judgment Intuitive: The Function of the Hunch in Judicial Decision' (1929). He described reaching decisions by an intuitive flash of what was right and then working backwards to find the rules to justify them. Frank relied on this confession: if judges decide by hunch, the reasons in a judgment rationalise the decision rather than cause it.

5. Karl Llewellyn: Real Rules and the Law-Jobs

Llewellyn gave realism its most careful form. In The Bramble Bush (1930), lectures to first-year students at Columbia, he wrote that 'what these officials do about disputes is, to my mind, the law itself'. He later conceded that the words were unhappy and at best a very partial statement of the truth. He contrasted paper rules (the rules as stated in the books) with real rules (the practices courts actually follow, which a lawyer uses to predict decisions). In 'Some Realism about Realism' (1931) he insisted that there is no realist school: realism is a movement in thought and work about law, a method and a set of common starting points, not a doctrine. Those starting points included law in flux, law as a means to social ends, the temporary divorce of 'is' and 'ought' for the purpose of study, distrust of traditional rules as descriptions of what courts do, and the evaluation of law by its effects.

His law-jobs theory is functional. Every group must get certain jobs done to survive: the disposition of trouble cases; the preventive channelling of conduct and expectations; the allocation of authority and of procedures for authoritative decision; the net organisation of the group to give it direction; and the development of juristic method, the craft of doing the other jobs. In The Cheyenne Way (1941), written with the anthropologist E. Adamson Hoebel, he studied the trouble cases of a Native American people and showed that law exists wherever these jobs are done, with or without courts and codes.

In The Common Law Tradition: Deciding Appeals (1960) Llewellyn identified two period styles of appellate judging. The grand style reasons from principle and policy with situation sense, asking whether a rule makes sense for the type of case. The formal style treats rules as self-applying and decides by deduction, regardless of results. He argued that American courts had returned to the grand style, and that their decisions were far more predictable than extreme realism suggested, because judges work within a craft tradition.

6. Scandinavian Realism in Brief

A parallel movement arose in Sweden and Denmark. Where the Americans watched the courtroom, the Scandinavians attacked the metaphysics of law, concluding that words such as 'right' and 'binding duty' name no objective reality; what exists are psychological feelings and the regular behaviour of people and officials. Note 70 treats the school in detail.

7. Realism, Precedent and Certainty

A later court can read a precedent narrowly, confining it to its facts, or broadly, extracting a wide principle. Since both techniques are respectable, stare decisis binds less tightly than its theory claims, and the ratio is partly chosen by the later court (Note 24). Realism also punctured the claim that law is complete and certain (Note 47). Its message was not that law is chaos, but that honesty about uncertainty is the first step to reducing it.

8. Hart's Critique of Rule-Scepticism

The most influential answer to realism is chapter 7 of Hart's The Concept of Law (1961), 'Formalism and Rule-Scepticism'. Hart accepted part of the realist case: because language has an open texture, every rule has a core of settled meaning and a penumbra of doubt in which the judge has discretion. But he rejected the prediction theory. A judge who applies a rule is not predicting her own decision; she uses the rule as a standard and a reason, the internal point of view that realism ignores. And the realist confuses finality with infallibility. In a game with a scorer's discretion, the scorer's ruling is final, but the game is still played by the scoring rule; a scorer who called scores at whim would be playing a different game. A supreme court's decision is likewise final, yet the court is still bound by rules it can apply rightly or wrongly. Hart later called realism the nightmare of American jurisprudence, set against the noble dream that judges always find and never make law.

9. Indian Illustrations of Judicial Law-Making

The Supreme Court of India has not adopted legal realism as a theory. The cases below are illustrations of the realist insight that judges make law, and of the limits the Court itself places on that power.

10. Evaluation

11. Frequently Asked Questions

Q. What is the difference between rule-scepticism and fact-scepticism?
A. Rule-sceptics such as Llewellyn doubt that paper rules decide cases and look for the real rules courts follow. Fact-sceptics such as Frank say that even certain rules cannot make results predictable, because the facts found at trial depend on fallible witnesses and on the individual judge or jury.

Q. Why did Hart reject the prediction theory?
A. Because a judge applying a rule is not predicting her own decision; she treats the rule as a reason. His scorer example shows that a final decision is not thereby infallible: the scorer, like a court, is still bound by the rule.

Q. Did the Supreme Court of India adopt realism in Vishaka?
A. No. Vishaka illustrates judicial law-making that realists would recognise, but the Court grounded its guidelines in the Constitution and international law. P. Ramachandra Rao (2002) shows the Court limiting its own law-making.

See also: Note 14 (sociological school), Note 24 (precedent), Note 47 (certainty and discretion), Note 59 (positivism versus realism), Note 60 (natural law versus realism), Note 70 (American versus Scandinavian realism).