Jurisprudence Notes for Internal III

American Realism
Analytical and sociological schools are combined in the realist school of jurisprudence,
analytical which is the judgment delivered by judges in the court, and sociological because of the
influence of judges-made legislation on society.

John Chipman Gray (1839-1915)

John Chipman Gray is regarded as one of the “founding fathers of the realist movement” and is
credited with inventing the term “realist.” According to Gray, the court, rather than the
legislature, is the most significant source of the law. According to him, a judge’s mentality and
bias play a significant impact in his decision-making. He laid the groundwork for a more critical
approach that continued to emphasize the role of non-logical variables in making judgments.
According to Gray, the courts are the ones who give life to the statue’s words.

Oliver Windell Homles (1841-1934)

He made a point of stressing that the practice of law was a combination of both experience and
logic. Known for his “bad man’s theory,” Holmes saw law from the standpoint of someone who
would commit a crime. As he sees it, the law is for the criminals or the “bad man”. To evaluate
what the law really is, one should go to a bad person’s interpretation of it, since they will be able
to accurately calculate what the laws enable them to do and work within those bounds.
His emphasis was on the practical and empirical aspects of the law. The primary goal of studying
legal history was for him to begin the process of re-evaluating the value of laws that had been
formed through time. There must be a clear separation between law and ethics. Holmes’ vision
of law put both court and professional lawyers at the center of the legal stage.

Jerome N. Frank (1889-1957)

There are two kinds of realists, Frank said. While one group is skeptical of legal standards
ensuring consistency in the law, the other group is skeptical of the establishment of facts before
the trial court. Frank admitted that he belonged to the second group.
Frank focuses on the unpredictability of the legal system. He argues that rules and written law
are based on the false assumption that the law should be clear. He said that judges and
practitioners should recognize the reality that the law is ambiguous and should not rigorously
stick to precedent and defined rules. He emphasized the necessity of lawmaking by examining
the facts of each case in light of the changing societal contexts.

Carl N. Llewellyn (1893-1962)

The term “realism” refers to a shift in legal thinking and practice. When it comes to this
approach, legislation is seen as a tool for achieving social goals, and every aspect of the system
must be examined for its purpose and impact. Society’s view of the world changes more quickly
than the law does.
Realists are skeptical of established legal principles and concepts. It focuses more on what the
courts and individuals are really doing. According to Realism, the law is defined as “a broad
prediction of what the court will do.
Drawback of the Realist School of Jurisprudence
1. Reduce the significance of legal texts and jurisdictions.
2. Dispute the validity of the law’s binding power.
3. Customs are not taken into consideration.
4. The importance of legislation enacted by judges has been overemphasized.
5. Realists have placed an excessive amount of emphasis on litigation and the human aspect
of the law, and they have been completely unaware of the vast majority of the law that
does not even come before the courts for judgment purposes, according to the critics.

Conclusion
One of the most significant effects of the Industrial Revolution has been an increase in the need
for human contact. To achieve fairness, it was determined that a balance must be struck between
the general well-being of society and the preservation of individual liberty. As a result, many
people believe that society affects an individual’s life in positive ways and vice versa. The many
sociological approaches to the study of law may be considered to be based on this. Legal realism
is one such social approach. Court decisions are studied by realists, who also evaluate the human
element involved in delivering them.

Jurisprudence Notes for Internal III

Sociological School of Jurisprudence
Meaning of Sociological School of Jurisprudence
As its name suggests, the sociological school of jurisprudence shines light upon the interrelation
between law and society. Since the scholars of this school put emphasis on the law-society
interrelation, it can be deduced that the primary objective behind the inception of the sociological
school is to learn about the linkage between law and society. This approach can come handy
when it comes to the resolution of societal issues with an immediate effect. Since the law is a
social phenomenon, it is indirectly and directly related to the society.
Features of Sociological School of Jurisprudence
1. The Sociological School Jurisprudence lays emphasis on the functioning of law instead of
merely focusing on its abstract content.
2. This School regards law as a social institution primarily interconnected with other
scientists and the direct impact of the law on society with its formation according to
social needs.
3. A pertinent feature of the Sociological School of Jurisprudence is that it neglects
positivism i.e., the command of sovereign and historical jurisprudence.
4. Sociological jurists explain the perception of law in various ways. For example, defining
the law in terms of the court’s ruling with a realistic approach of law.
Theory of Social Engineering
The American Jurist, Roscoe Pound propounded the theory of social engineering. According to
him, as Engineers need to use their engineering skills to manufacture new products, Social
Engineers too need to develop a type of structure in the society which provides utmost happiness
and minimum friction. He said that everyone has their individual interests and consider it to be
supreme to all other interest. The law focuses on seeking a balance between the interests of the
people. Article 19(1)(a) of the Constitution of India can help us understand this ‘balancing
element’ in a better way. Although, Article 19(1)(a) guarantees the ‘Rights to speech and
expression’, it also gives the State the liberty to put reasonable restrictions contained in Article
19(2). With the help of law, Social Engineering aims at balancing the conflicting interest of the
individual and the state. Law helps in solving conflicting interest and problems in the society.
This body of knowledge helps carrying out social engineering.
Interest Theory
The eminent Jurist, Roscoe Pound also propounded the Interest theory where he categorized
interest into three types. The first being individual interest. Individual interests are claims or
demands related to the individual life. The individual’s interest is known as their private interest.
These interests are protected by contract law, law of tort, law of crime, etc. Domestic relations
are a classic example of individual interest and may be protected by Personal Laws. Property
laws also help safeguarding an individual right vested in his property.
The next kind of interest would be Public Interest. In common parlance, the word public interest
is widely used in association with the interlink between the state’s responsibility in taking actions
that are in the benefit of the general public and the state and the duty of the public to coordinate
with the state in the said action. Public interests could be referred to as the claims or desires
asserted by the individual from the standpoint of political life. This means that each and every
individual in society has a responsibility towards one another and must make use of the things
that are open to public use.
Social interests are the claims or demands that are made in relation to social life. In order to
properly function, the needs of society must be fulfilled. Thus, these rights help fulfilling the
needs of the society as a whole.
Jural Postulates by Roscoe Pound
Roscoe Pound believed that every society has certain basic assumptions for maintaining proper
order and balance. These implied assumptions are called Jural Postulates of the legal system of
that society. He said that the interests vested in the following five Jural Postulates must be
protected.
1. In a civilized society, people must be free to assume that others will not commit any
intentional aggression on them. For Example, Assault, Battery, etc.
2. In a civilized society, people must be free to assume that they have control over whatever
they discover or create by their own Labour. An example of this would be the laws
revolving around Intellectual Property Rights.
3. In a civilized society, people must be free to assume that the ones they deal with will act
in good faith. A classic example of this would be Contract law.
4. In a civilized society, people must be able to assume that other people will act with due
care and will not cast unreasonable risks of injury on them. The law of Tort would come
 under this. For example, protection from unreasonable injury caused by the negligent act
of some other person.
5. In a civilized society, man must be able to assume that people will restrain from
committing harmful acts under their employment and agencies which are otherwise
harmless to them. This was established in the case of Ryland v Fletcher. The duty lies
upon the other person to keep their things with their boundary and take due care to avoid
injury to other people.
Leon Duguit
A French jurist named Leon Duguit came up with the theory of Social Solidarity. It explains the
social cooperation between individuals for their need and existence. His Social Solidarity
explains man’s interdependence on his fellow men. This is because, according to him, nobody
could survive without relying on other men. In his opinion, every person had the right and
obligation to encourage social solidarity.
Montesquieu
The French philosopher Montesquieu paved the way for sociological school of jurisprudence. He
was of the view that the social condition of society has some sort of influence or impact on the
legal process. Furthermore, he acknowledged the significance of history to help understand
society’s composition and emphasized the importance of studying society’s history prior to
formulating laws for that particular society.
Conclusion
A commonality between theories of most jurists is that they all regarded there to be a connection,
an interlink between society and law. The sociological school of jurisprudence advocates the
study of law in correlation with the society. In fact, the Indian Courts have tried to apply or
mention the sociological school of jurisprudence in their judgments. In the case of N. Adithayan
vs Travancore Devaswon Board and Ors, the court observed that differentiation based on cast
could not be allowed to permeate the social fabric of the society. Hence, the Court reaffirmed
that discrimination of any sort, amounting to untouchability would not be accepted or tolerated.
Even in the case of Sarla Mudgal v Union of India, the court giving due regard to the concept of
Sociological School of Jurisprudence said that marriage celebrated under one personal law
cannot be dissolved by the application of other law.