LEGAL REALISM

The thinkers of Legal Realism gave importance to Judicial Decisions and what comes from the
courts is law as per them. They suggested studying law in action. They suggested a definition of
law different from the conventional definition. They focus more on what the courts do to reach a
decision. For them, law is a prediction of what may be decided by the Courts. The thinkers of
Realist school denounce the theories that suggest the role of judges being limited just to apply
the law to facts. The realist school believes the role of judges is much more than that. The law is
not certain and cannot be predicted by anybody. They suggest that the courts use an ‘emotive’
approach rather than ‘logical’ approach. The mindset and notions of a judge also play a vital role
in what the outcomes of a case will be and how the judge will make laws. Every judge has his
own experiences and political, economic, social views and different family backgrounds. Due to
a difference in all these factors which play an important role in how a case is decided by a judge,
the outcomes in case with similar facts but two different judges deciding it will be different.
They believe that society keeps changing and progressing so there is a need to check that the law
is in consonance with the needs of the society.

Jerome Frank

He believed that Legal Certainty is a myth and that nothing can remain static. He believes that
nothing in the process of trial can be predicted or can remain static. Everything keeps changing.
According to his theory, judges arrive at a decision after applying the black letter of law to the
facts of the case he is hearing. Now, the judge may not necessarily understand the facts of the
case in the same way he ought to be. His interpretation and understanding about the facts of the
case may be very different. Due to this discrepancy, the legal decision may not be the same in
every situation. Two cases with similar facts may bring contrasting judgements if the judges
deciding the cases are different because both of them will have a different way of interpreting the
facts, bringing changed legal decision. Therefore, he says that certainty of law is a legal myth
because due to different interpretation of facts by the judges, varied outcomes may be produced
and therefore everything is uncertain in a trial. He also believes in the idea that precedents should
not be followed blindly. Because of variance in the facts of each case, precedents cannot be
blindly followed and the judge must use his discretion in relying on cases that have been decided
in the past.
From the perspective of Jerome Frank, the judges deciding the case of Erhard Milch were
competent of deciding legal problems. On the second count where Milch was indicted for
conducting and abetting in medical experiments on inmates, the decision of the judges could
have been different if they were more sound with the knowledge of medicine because then their
understanding about the facts of this case would differ from what it was while deciding this case.
Even though he did not have a direct relation with the experiments, he was an accessory in them.
And perhaps instead of acquitting Milch on this count, they would have acquitted him for the
same.

At the same time, the judges at this trial have been trying to set a precedent for the future to
follow. The barbaric and inhumane acts that were committed in Germany and the lives that were
lost were due to the lust of power of a few men. In order to prove it to the world and humanity
that such acts are not just immoral but also against the law they punished Erhard Milch and
sentenced him to a punishment of imprisonment for life. The interpretation of judges being
different brought this result. It could however be different had the judges been different and
therefore, nothing could be predicted with certainty about the outcomes of this trial.

John Gray

John Gray was an American philosopher who believed that law is what is decided by the courts
and anything other than that are sources of law. He believed that Law given by the Judges is
influenced by the personal experiences and opinions of judges. Judges have their own personal
perceptions about issues that these perceptions play a role in deciding a case. A judge may have
his own Political opinions, Economic opinions, personal qualities etc and they might affect his
decisions which form the Law.

In the present case, had the judges who decided this case been influenced by the idea that
Aristotle had about slavery, the decision could have been different. Aristotle supported Slavery
and had his own opinions about it. Now if the judges while deciding this case, would have been
of the same opinion as Aristotle, they would have acquitted Milch on the count of Slaved Labour
because in their opinion, slavery would not be wrong. The judges on the other hand had the
opinion that Slavery is a crime and therefore should be punished and decided against Milch on
the First Count of Slaved Labour.
Another important observation that must be made and plays a critical role in understanding the
judgement is that all the judges of the Trial at the U.S. Military Court were Americans and
belonged to Allied Forces at the time of World War. They were deciding a case against a man
who was a German and belonged to the Axis Forces. At the time when this trial was conducted
the United States loathed Germany since the two forces were enemies. With such a background,
the judges would also have a sense of strong nationalism for their country while deciding this
case. With such strong nationalist feelings, it is not surprising that the judges convicted Erhard
Milch and sentenced him to imprisonment for life. When he filed a writ petition of Habeas
Corpus at the U.S. Supreme Court, his application was rejected with a unanimous decision by the
judges of the Court. This sentence was later reduced to 15 years by the High Commissioner of
Germany. He, being of the same nationality as Milch, may have had a sense of belongingness
with the man and because of this bias, may have reduced the punishment.

Thus, the preconceived notions that judges have about various subject matters may change the
decisions pronounced by judges to a great extent.

Justice Oliver Wendell Holmes

Justice Holmes was created a hypothetical “Bad Man” and predicted law through the perspective
of this bad man. This bad man is a frequent wrongdoer who does not care about morals in the
society but only about what punishment they might possibly get. They focus on predicting the
law i.e. the judgement that the court will give. He suggests that this bad man is able to predict
law better than a layman. Judges reach a decision on the basis of their own experiences and
beliefs. In this case, before the formation of the Allied Control Council, it could not have been
predicted by the Bad Men who were in this case those who were hungry and passionate for
power and committed atrocities on the people in Germany that there will be a punishment for the
crimes they are doing.

The law that was formed and Erhard Milch was punished only after the formation of this Council
and a tribunal of judges was formed. It must have been a new experience for these judges as well
since never in the history, had there been trials for such barbaric crimes. It was only by applying
the law formed to the facts of this case, were the judges able to convict Milch for the War Crimes
and Crime against Humanity that he committed.

Thus, applying the Bad Man theory in this case could not have been possible for the reason that
such acts were never witnessed in the history and the law could not have been predicted because
the judges did not have or had little experience of their own in dealing with such a case.