LEGAL REALISM

Karl Llewellyn always denied that legal realism was a movement, claiming that instead that
there as many kinds of legal realism as there were individuals professing it. But Yale law school
harbored a larger group of realists than any other law school including such highly articulate
exponents as Jerome Frank, William O’ Douglas and Underhill Moore. The movement flourished
in 1920s and 30s primarily at Yale and Columbia law schools and at John Hopkins’ short –lived
institute of law. A word like realism is so likely to become an incantation, a word to bless or ban
that unless progressive and traditionalist, realists and conceptualists all alike are careful, they
may find themselves tripping over their terms to no small damage of their intelligibility and
intellectual integrity.

Law is what courts and partly irresponsible administrative agencies will do or say within the
limits set by statutes and public opinion. Realism in law is purely practical matter. It may be an
ideal to which it Is hoped the courts will confirm and to which as a matter of fact they often do
confirm. Judges are realists when they are aware that they are required to base their judgment
in unique event in which non-interchangeable human beings are concerned. They are realists
when they are aware that neither the event nor the individual is quite unique but they both are
largely determined by groups and sequences which frequently recur. And they are realists once
more when they are of what the result of their judgment are likely to be, both to the concrete
human being who has evoked it and the others who may be governed by their example.

There is no logical reason as to why realists should concern themselves with any particular
standard or reject one method of valuation in favor of another. In that case, realists must insist
that one of the most urgent problems is to find out when any particular standard is to be
applied.

Realists will find this moral ideal sometimes in a generalization from existing practices and
sometimes in rules of conduct confessedly neglected in practice but admitted to be better than
practice. For example, political corruption may be rampart and well-high universal in any given,
but courts will hardly be willing to say that it is better for an official to accept a bribe than to
refuse it.

Dean Pound regards realism as assuming the air of an adventurous and new school which
challenges the dominance and authority of the analytical and historical schools established in th
19ht century. Of course history and analysis are not the property of any particular school. It
would be better to think of analysis as a device which can be as well applied to the natural
schools of law of 18th century and various metaphysical and positivist movement of 19 th
century. While history is a necessity for those who seek to understand the facts detached by
analysis.
Dean Pound calls to the attention of realist that the demand for actuality has been the basis of
al important legal movements within the last two hundred years. If realism is a new form of this
demand , only its name is new.

There is no fundamental contrast between realism and the older schools as well, as such,
because these older schools do not admit that they are non-realists, nor could they show self-
stultification. The inherent enemy of realism is conceptualism and it is the special
characterization of modern realism that it recognizes the fact.

By conceptualism it means the theory that there are a number of principles which can be
delivered in a schematic form. Analysis may tell us what they are and history can say no more
about them than that. Their specific formulation they owe to philosophy or religion or some
form of social theory.

Realism is the sworn foe of conceptualism as a legal ideal, but it does not discard formal logic
and it can find a use even for conceptualism. The vast history which includes every form of past
law, whether embodied in legal institutions or illustrated in judicial precedents or made a
present mandate by valid statues, conceptual formulation and a logical arrangement are almost
essential prerequisites. Conceptualism therefore has valuable services to render mnemonics
and expository services but surely they are not compatible.

Hart rejected two forms of rules-skepticism advocated by the realists. Hart’s argument was that
this kind of rule was a clear failure. For courts deciding cases are guided by the law., the legal
rules can be found in the constitution, statues, regulations and past judicial opinions. The realist
theory of law was, in the words of philosophers, “deeply implausible”, open to easy regulations
and a jurisprudential joke. Hart tool rule-skepticism as a theory of adjudication little seriously.
According to this theory, statues and like may be law. But they are too indeterminate to have
great significance influences on predictors of judges’ decision.

Because the law is indeterminate, judges decide cases in the basis of non legal considerations.
Hart did not argue that this theory was incoherent, but he thought that it was an exaggeration.
Hart considered that law is what he called “open texture”, but is not indeterminate in its core
as the realists claim.

The realist did not regard rules in the proportional sense of terms. They admitted that the law
can meaningfully instruct people to act in certain ways rather than others to some extent and
for this reason can guide the behavior of those who seek to obey its command. If I want to
abide a statute that states that speed limit is 55 miles/h I know what to do. In the same way, a
judge who wants to adjudicate in accordance with statutes knows what to do (namely sanction
only those who exceed 55 miles/h)
There is another sense of “rule”. This is the idea of a rule as something providing a reason for
action. If one violates a rule in this sense, one has done something wrong, something one ought
not to have done. My command is not a rule in this sense, for there is nothing about the fact
that I command you to do something that gives you a reason to do what I say. Realists reject
legal rules in this sense.

There is a prediction theory, according to which if law is not influencing adjudication, it is not
law at all. This is why realists were inclined towards prediction theory. The American legal
realists were similar to Scandinavian legal realists especially Alf Ross

A judge’s only reasons for a decision are those that are subjectively recommended by his/her
attitudes. Consider Ross’ account for a valid legal rule. Ross accepts that a rule, understood as
propositional content, can exist and guide those who seek to conform to its instructions. A rule
legally valid is the empirical claim that the content is effectively followed [by authorities
applying the law], and followed because they are experienced and felt to be socially binding