American Realism

- Exists as a result/in response of formalism formulated by Christopher Columbus

Langdell
- The law is analysed based on logic (analytical deductions and legal reasoning)
- When a judge reaches a decision, what is most important is for there to be a
logical deduction regardless of the effect and morality

- The realists were against formalism as they felt that logical deductions did not
illustrate the reality of how judges reached their decisions
- They rejected theoretical and analytical approaches to jurisprudential
questions
- The realists were more concerned with enlarging knowledge empirically and to relate
it to the solution of the practical problems of man in society at present day
- The law, to them, is both, a result of social forces and an instrument of social
control

- The movement is a combination of the analytical positivist (considers the law as it is),
and sociological approaches (the law as a product of many factors).
- In attempting to be both, practical and pragmatic (realistic), they attempted to look at
what they perceived to be the reality in the question: How does law work in practice?
- Thus, it stresses on the study of the behaviour of judges, whereby its ultimate
goal is to be able to predict how judges decide cases in order to understand
what ‘law’ is
- Accurate predictions can only be made once the law is fully understood
- It seeks to discover how judicial decisions are reached in reality and discover other
factors that contribute towards a judicial decision
- “Law in books” (legal factors) vs “law in action” (non-legal factors; law not just
as it exists in the statutes and cases, but as it is actually applied in society)
- Their approach is highly empirical (based on real experience)
- Law is the product of ascertainable factors (non-legal factors) such as: judges’
personalities, their social environment, the economic conditions in which they
were brought up, business interests, trends and movements of thought,
emotions, psychology
- Carlill v Carbolic Smoke Ball: The decision was not made merely in regards to
an invitation to treat; it was also made out of sympathy towards Mrs Carlill.
- E.g: In deciding whether a harmful business activity is a Common Law nuisance,
the judge must ascertain whether the particular activity is reasonable. Realists
contend that judges who are ideologically inclined to foster business growth
will authorize the continuation of a harmful activity, whereas judges who are
ideologically inclined to protect the environment will not.

- The realists believed that judicial decisions would better meet the needs of society if
judges were more open about the non-legal factors that influenced their decisions.
Oliver Wendell Holmes (1841 – 1935; US Supreme Court Justice, founder of the movement)
- He introduced a predictive approach to the law
- Law is simply a prediction of what courts will decide; that if a man does or omit
certain things, he would be punished
- He looked at the law from the perspective of a bad man
- In order to know what law is, one should view it through the eyes of a bad man,
who does not care the method in which the court applies in reaching a
decision, but who is only concerned with what will happen to him if he
commits a certain wrong
- He recognized that there are many non-legal factors which influence the law, such as
morality, politics and prejudices.
- He doubted the general rules or principles of law as other factors are
considered to play a more dominant role
- “The general propositions do not determine concrete cases; no case can be
determined by general propositions”

- The main focus of American realism is judicial decision-making

- “The life of the law is not logic, but experience.”
- A proper understanding of judicial decision-making would reveal that it was
fact-centred; that judges’ decisions were often based on personal or political
biases, and constructed from hunches, when in fact, public policy and social
sciences should play a large role
- The indeterminacy (unpredictability) of legal concepts and legal reasoning led
to the need to explain judicial decisions in other terms (non-legal factors) and
the opportunity to encourage a different focus for judicial reasoning, namely
public policy and social sciences
- Where the judiciary not only plays an interpretive role, but also a legislative
role, it should become more open in its use of policy so that there would no
longer be a need to look into precedents and false mechanical reasoning to
understand what was really going on
- “The very considerations (of what is expedient for the community
concerned) which judges most rarely mention are the secret root from
which the law draws all the juices of life.”
Karl Llewellyn (1893 – 1962)
- Law is a means to social ends and every part of it has to constantly be examined for
its purpose and effect, and to be judged in the light of both, and their relation to each
other.
- The law has to be moulded to fit the current and future needs of the society
- Law must be evaluated in terms of its consequences (effects on the society)
- Legal rules as found in books (“paper rules”) and emphasized in judicial decisions do
not accord with reality and fail to describe the reasoning processes that judges adopt
in reaching their decisions; they merely provided “paper justifications”.
 - They do not describe what the courts are purporting to do, nor how individuals
concerned with the law behave (“real rules”)
- They have taken a life of their own; have become ‘reified’, and bear little
resemblance to the actual legal process
- “Paper rules” have failed as predictors; “real rules” are the actual predictors

- He treated the law as an institution; an organized activity built around a job or

“cluster” of jobs that are fundamental to the continuance of the society or groups in
which it operates.
- Where the institution of law is complex, consisting of rules, principles,
techniques, values and ideas, he asserted that the concern should be on the
institution as a whole, including the important ideals, instead of merely
concentrating on the rules.

- Law has jobs to do within a society if it is to survive and achieve its purpose, and these
jobs must be effectively carried out.
- “Law-jobs” are carried out through officials of the law
- “What judges, lawyers, and law enforcement officers (officials of the law) do
about disputes is in itself, the law.”
- “Law-jobs” are his way of describing the basic functions of the law, which
enable the possibility of group survival, and the quest for justice, efficiency and
a richer life:
- Resolve disputes between members of the community: Law helps
maintain a peaceful, orderly society, and contributes to this stability by
providing a means of resolving disputes, overcoming a wrong done, or
attending to a specific grievance.
- Prevent or help avoid disruptive conflicts within the community
- E.g: Property law facilitates business activities, while laws
limiting the powers of government help ensure individual
freedom.
- Accommodate changes in the circumstances of the community and its
members: Law can also be used as a means of accomplishing social
change
- E.g: In the prohibition of racial discrimination; the
establishment of national health and social security systems.
- Recognise the authority structure of the community
- Establish procedural rules for performing other tasks
- The first three law-jobs ensure society’s survival and continuation, while the
latter two increase efficiency and expectations.
- His list of law-jobs provide a holistic approach to law-making and judicial
activity; they are not merely about making the law open, accessible and clear,
they also concern the fundamental role and function of law in society.
- He considers law-jobs as universal, and is of the view that society will develop
institutions to perform these jobs.
Jerome Frank (1889 – 1957; a US Federal Judge)
- He insisted that there are two groups of realists, namely rule sceptics and fact sceptics
Rule sceptics (represented by Holmes and Llewellyn) regard legal uncertainty as residing
principally in the “paper” rules of law (law in books) and seek to discover uniformities in actual
judicial behaviour.
- They are sceptical of formal rules as the major deciding factor in legal cases or the
ability of general rules to provide the solution to particular cases
- Law in books were considered unreliable in guiding the prediction of decisions, and
that if the real rules were to be discovered, only then can certainty and predictability
be achieved.
- Its aim was to show that simple reliance on rules was a fallacy and that judges either
consciously or unconsciously continue to adhere to rule formalism
- Judges are seen as unprepared to make clear the real reasons for their decisions
because it would be seen as a betrayal of the ideal of the rule of law; the idea that the
law is neutral and objective, and not dependent upon any personal factors.
- Judges should not feel the need to hide behind precedents (doctrine of stare decisis),
but should instead make policy-based decisions that are best for the society
- They are committed to the idea that the aim of judicial decision-making was to
increase legal certainty or predictability
- They considered it desirable that lawyers should be able to predict the
outcome of their clients’ cases that have yet to commence
Fact sceptics (led by Frank) abandoned all attempts to seek rule-certainty and pointed to the
uncertainty of establishing the facts in trial courts.
- He urged that too much attention was devoted to the processes in the appellate
courts, and had, thus neglected the lower courts
- Knowledge of what goes on in the lower courts is needed in order to know what law
“means to persons in the lower income brackets”
- Rule sceptics seek means for making accurate guesses, not about decisions of
trial courts, but only decisions of appellate courts when trial court decisions
are appealed.
- Rule sceptics disregard the question of whether the facts arrived at in the
lower court were actually real facts as appeal courts generally do not debate
the facts of a case.

- Regardless of how precise formal legal rules are, it will always be impossible to predict
future decisions/in what way the trial court will decide in most lawsuits because of
the elusiveness (ambiguity) of the facts on which decisions turn
- There are two main groups of elusive factors:
- The trial judges in a non-jury trial or the jury in a jury trial must learn
about the facts from witnesses, who may make mistakes in observation
 of what they saw or heard, in recalling of what they observed, or in
their courtroom reports of such recollections
- The trial judges or juries may have prejudices (often unknown to
themselves) for or against some witnesses, parties to the suit, or their
lawyers
- Elusive elements such as racial, religious, political or economic
prejudices of the judge and the jury may be uniform, but it is
impossible to include all their hidden unconscious biases as
such biases cannot be predicted

- Uncertainty can also be found in the process by which a material fact is

determined
- In a trial court, the law and the facts become intertwined, and are not
distinguished from one another
- Juries, in reaching a verdict, may act on their emotional responses to
the lawyers and witnesses that they liked or disliked, and not on any
legal rule
- These mistakes are then adopted and relied upon by the appellate
court

- Rules are mere word formulae, and if they are to have any meaning at all, such
meaning must be sought in the facts of real life to which the rules correspond.
- Frank denied that there is certainty in the judicial process and that if the fact sceptics
were to be followed, the elusiveness of facts would make predictions wholly
impossible.
Criticisms
- Realism is a mere technology; mere description of what is transpiring in courts, and
there is no suggestion of what ought to be.
- The law should be concerned with shaping or reflecting social change, not with
shaping the society
- Realists glorify the judiciary (their stance revolves around the judiciary) to such an
extent that it appears as though the judicial function is at the heart of the law
- They failed to consider that much of what occurs in society are not brought
before the court, thus proving that the law does not revolve around the judicial
function
- Realists have not improved jurisprudential thought, but have only created more
arenas to think about
- Realists have completely overlooked the importance of rules and legal principles and
treated law as an assemblage of unconnected court decisions.
- Their perception of law rests upon the subjective fantasies and life experience of the
judge who is deciding the case or dispute.
 - They overestimate the role of judges in the formulation of laws. Judges do
contribute to law-making to a certain extent, but it cannot be forgotten that
their main function is to interpret the law.
- Realists undermine the authority of precedents and argue that case law is often made
in haste without regard to wider implications.
- Courts have to rely on the evidence and arguments presented to them in court,
and do not have access to wider evidence such as statistical data, economic
forecasts, public opinion, survey etc.
Defences
- The attack against the doctrine of stare decisis, which ties the hands of the judges, has
helped improve the system of the lower courts
- The movement have helped judges become more honest and informed
- Judges would look into non-legal factors when making a decision and interpret
the words of the statute by giving thought to the effect of their decision on the
society at that point of time.
Scandinavian Realism
Where the American realists had a background in the judiciary or teaching law, the realists in
Scandinavia, who were mainly comprised of philosophers, approached their tasks on a more
abstract plane.
- Scandinavian realists were termed as empiricists
- Those who rely on observation and experiment, instead of theory.
- They believed that no knowledge exists other than that which is verifiable by
the senses; they denied that there can be any knowledge gained exclusively by
a priori reasoning (logical deduction).
- Their method for the enlargement of knowledge was through empirical observation
- They viewed the law as an observable fact
- The legal notions of binding force, validity of law, existence of legal rights and
duties, and property were dismissed as mere fantasies of the mind with no
actual existence other than in an imaginary metaphysical world (in the mind)
- They considered principles or ideas which were not verifiable as meaningless
- Where legal concepts (rights, duties, ownership) could not be proven by
empirical evidence, they do not objectively exist
- To invoke such concepts would be meaningless
- Notions such as “rights” and “duties” can only be found in the mind of an individual,
and explained as psychological feelings
- Normativity (binding quality of law; validity of law) is only a psychological occurrence
- Law is a result of the psychology of individuals
- People who have rights feel that they have power, while those under an
obligation feel that they have to act in a certain manner
- Laws exist only in the sense that words are to be found on pieces of paper and
only comes to reality once the mind compels us to obey it
Axel Hägerström (1868 – 1939; founder of the movement)
- He denied the existence of objective values
- There is no such thing as “goodness” and “badness” in the world
- Judgments about “right” and “wrong” are purely emotive
- The words simply represent emotional attitudes of approval or disapproval (a
person’s feeling of like or dislike) towards certain facts and situations
- It is only language which transforms the good or bad into absolutes, thus
producing an illusion of objectivity

- Words have created an illusion of compulsion that legal concepts exist, when in fact,
such ideas only exist in the mind
- The belief that legal concepts exist is just a response to a given stimuli, which
will then result in real effects
- The word ‘duty’ only expresses an idea, the association of a feeling of
compulsion which will lead to a desired course of conduct
- He denied that it relates to threatened sanctions, expressions
of legislative will, or to the pressures of moral apprehension and
public opinion
- The idea of ‘right’ has no factual basis, but derives from a feeling of
power associated with it, which has a psychological explanation
- The fact that a citizen is made to understand that he has a right
instils him with the power and strength to employ it
- ‘Ownership’ is an idea that exists in the minds of owners and others
who leave the owner in an undisturbed enjoyment of his property
- Questions of justice, aims, and purposes of law are matters of personal
evaluation and not susceptible to any scientific process of examination
- It is dependent upon what lies in the mind of an individual; such
questions must be examined through a psychological analysis of the
mental attitude involved

- He applied this technique to his study of Roman law

- He examined the concepts of Classical Roman law and set forth the thesis that
law was rooted in magical beliefs
- The fact that law began with religion (the administration of law was a
religious concern), and the control enjoyed by the class of priests, is
evidence that it is based on magic
- The law is a result of developments of the belief in the power of words
to affect happenings
- Although through time, belief in magical entities faded away, people still went
on with practicing legal concepts with the same psychological effect
 - Legal concepts symbolise a psychological reaction to ritualistic forms (such as the
entering of a contract) which have effects in the real world through their influence
upon the conduct of their subject and other people.
- E.g: As a result of a contract for a purchase of a watch (involving the elements
of offer, acceptance and consideration) the owner of the watch has a belief in
an entitlement to control. The acceptance of this belief by others and their
refrain from interference results in a situation in which the owner does actually
have control over the watch.
- The psychological effects of legal concepts are important for the part that they
play in the regulation of society, namely that obedience to the law rests not
so much on the knowledge that sanctions exist, but rather on the
psychological pressure for compliance that law exerts.
Vilhelm Lundstedt (1882 – 1955)
- Law is simply the fact of social existence in organised groups and the conditions which
make possible the co-existence of masses of people.
- Different people would require different conditions in order to continue to
exist
- He sought a jurisprudence based upon empirical social observation rather than
value judgments or metaphysics
- He asserted that nothing exists which cannot be proved as a fact
- ‘Duty’ is only a feeling or sentiment that a person ought to conduct himself in
a certain manner (subjective matter)
- ‘Right’ is only a word for the favourable position enjoyed by a person as a result
of a functioning legal institution
- Law simply consists of rules about the application of organised force

- The idea of law as a means of achieving justice in society is illusory, as law is not
founded on justice, but on social needs and pressures.
- He substituted the term ‘justice’ with ‘social welfare’ which relies upon the
consideration of what is in fact thought to be socially useful to people
according to their way of life and aspirations at a particular time
- A factual observation of social welfare is the key to understanding the
functioning of the law
- Social welfare encourages what people actually strive to attain (the
essentials that people seek for in life, such as food, shelter, security)
and not what they ought to strive for
- The method of social welfare thrives to achieve balance between the
essential needs and other competing interests without the intrusion of
values
- His views on criminal law and punishment were moulded based on his views
on social welfare
- The individual case must be seen from the perspective of the interests
of society
 - Penalties that would “break down the criminal” and instil fear in
potential offenders is a secondary matter as what is most important is
for the criminal law to appeal to public morality.
- To be effective, it must influence morals so that certain acts become
condemnable, and only when this is achieved would the criminal justice
system be considered to have succeeded in its aim of repressing crime.
Karl Olivecrona (1897 – 1980)
- He refrained from defining law and expressed that an analysis of the facts that exist in
society is all that is required.
- He associated law with the social fact of human conditions

- He approached the matter of the validity of the law from the angle of bindingness
- Law has binding force insofar as it is valid; an invalid law is not binding
- There is no such thing as ‘the’ binding force behind law
- It is illusory and meaningless; it is not an observable fact
- It only exists as an idea in individual minds
- Laws exist insofar as words are found on pieces of paper, but materialises when the
mind tells an individual to obey it.
- Their importance lies in the fact that they exert pressure on the population,
thereby producing behaviour.
- This results from the fact that most people have a feeling of being bound by
law, which differs from asserting that there exists a binding force behind law.

- Law is regarded as independent imperatives prescribed by certain agencies (legal

bodies)
- They are obligations, but are independent in the sense that the authority to
abide by the law exists in the mind.
- The feeling of being bound by law is psychologically associated with certain
agencies when they follow certain procedures, together with the publication
of law-texts through certain media.
- ‘Duty’ involves the idea of action and an imperative mode of expression, and
thus, the feeling of being bound stems from the psychological associations
connected with this mode of expression by certain agencies
- ‘Right’ suggests a multitude of other ideas relating to behaviour patterns, not
only for the possessor of the right, but also of other persons.
- It implies directives as to how the right-bearer and others can and
should act; informs people about legal situations; is purposive in
achieving or maintaining a state of affairs; and is a means of harnessing
the force of the state.
- His analysis led him to conclude that such legal concepts do not describe any
objective reality, but are instead directives which produce real effects in the
form of conduct. Thus, law is nothing but a set of social facts based on the
application of organised force.
Alf Ross (1899 – 1979)
- He admits the normative character of law and distinguished between laws, which are
normative, and laws in books, which are descriptive.

- Law is a system of normative rules concerning social facts.

- A ‘norm’ is a directive which stands in a relation of correspondence to social facts.
- To say that a norm exists means that a certain social fact exists, which is thus
followed by people who feel bound to do so.
- Its principal feature is that they are directives addressed to courts (those is
authority; organs of the state), whether they derive from past decisions, or
from legislation.
- He suggests that there is no need to describe two sets of directives: one
to the population at large, and the other to the courts, as the former
can be understood from the latter.
- “To know these (secondary) rules, is to know everything about
the existence and content of law.”
- E.g: If a person is aware that the courts are directed by the law
to imprison whoever is guilty of murder, since imprisonment is
a reaction of disapproval, and a sanction, such person would
know that he is forbidden from committing murder. Thus, a
statutory prohibition against murder is implied in the rule
directing the court and other authorities to deal with such cases
in the required manner.
- The judgment or order from the court then forms the basis for action
by the state, which is a ‘control of the exercise of force’.
- Norms may be divided into ‘norms of conduct’, which deal with behaviour, and
‘norms of competence or procedure’, which are indirectly expressed norms of
conduct (norms brought into existence according to a declared mode of
procedure).

- A ‘valid law’ means the abstract set of normative ideas which serve as a scheme of
interpretation for law in action (practice).
- Validity can be established in terms of social facts by employing empirical methods of
observation, which has to show that a norm is effectively followed, and that the norm
is felt to be socially binding by the judge and other legal authorities applying the law.
- If a judge, in interpreting a set of norms, feels that a norm is binding, he will
make a decision in which he will adopt social facts into his judgment, which in
turn will be applied and abided by other authorities.
- A valid system of norms are operative (in force) because they are felt by the
judge to be socially binding and therefore, obeyed.
- This scheme of interpretation enables us to explain the behaviour of judges (to
understand the actions of the judge as meaningful responses to given conditions) and
to, a certain extent, predict their decisions.
 - Norms are valid if a prediction can be made that a court will apply it.
- The degree of predictability that a norm will be applied determines the degree
of its validity.
- Where the probability is high because the basis is a statute or an
established precedent, the degree of validity is high.
- Where the probability is low because there is no decisive authority, the
degree of validity is low.
Criticisms
- The approach taken by the Scandinavian realists is a formal analysis of observing the
law; it is not tainted by values.
- The approach is not limited to looking at “paper” rules or “law in books” like the
American realists.
- They consider what occurs in courts and examines how it affects the minds of
individuals psychologically (strength of their approach)
- However, the theories of some of its realists are considered to be too extreme.
- According to them, law is a fact of social conditions
- Although they did not deny the validity of law, they rejected the idea that law
has a binding force.
- The binding force has no place in the world of time and space, but must
be located in another realm.
- To believe the law has a binding force is to give up any attempt of
indulging in metaphysics.
- They agreed that law is indeed indispensable, but rejected legal ideologies
- Law is not imposed by a higher being, nor is it a system of commands by a
sovereign
- Their approach has further expanded sociological jurisprudence as it insisted that law
must be based on social facts
- The Scandinavian realists have placed the welfare of the society at the core of
all their concerns