THEORY OF

LEGAL REALISM
BACKGROUND:
• The U.S. legal realism movement commenced in 1881 when
an American jurist, Oliver Wendell Jr. expressed that ‘The life
of the law has not been logic; it has been experience.’

• Legal realism was primarily a reaction to the legal formalism

of the late 19th century and early 20th century, and was the
dominant approach for much of the early 20th century
INTRODUCTION:
• A theory that all law derives from prevailing
social interests and public policy.
• Judges consider not only abstract rules, but
also social interests and public policy when
deciding a case. In this respect, legal realism
differs from legal formalism.
• The theory of legal realism, like positivism,
looks on law as the expression of the will of
the state but sees it as made through the
medium of the courts. Law no doubt is the
command of the sovereign, but the sovereign
to the realist is not the parliament but the court.
DEVELOPMENT OF THEORY:
• Legal formalism is a theory of how judges should
decide cases. It is the thesis to which legal realism is the
antithesis. As a normative theory, formalism is the view
that judges should decide cases by the application of
uncontroversial principles to the facts.

• American legal realism emerged as a reaction to legal

formalism.
• American legal realist movement first emerged as a cohesive
intellectual force in the 1920s and had its heyday from the 1920s
to the 1940s.
• Comprises of :
• Lawyers

• Judges
• scholars
MEANING OF COURT:
• This theory furthers explains the meaning of the court, because in the
modern circumstance, different courts have been established for the
settlement of disputes between the individuals. This raises the question that
the word ‘court’ will include administrative tribunals or not?
• To this the reply is that these are the marginal cases and all words will have
a central core of meaning and also some hazy marginal sense.
MEANING OF STATUTE LAW:
• The second question raised was that though the
definition may be appropriate about case-law, is it
appropriate in respect of statute law?

• Salmond said so long as the legislature and courts

function in harmony it does not matter whether we say a
statute is law because the courts recognize it or the
courts recognize and apply a statute because it is law.
According to salmond, this is also a marginal case which
cannot influence the definition.
CONCLUSION OF THEORY:
• Realist school therefore is that a statement of law is nothing
more than a prediction of what the courts will decide.
CHARACTERISTICS OF LEGAL REALISM:

• Instrumentalism is the view that creativity in the

interpretation of legal texts is justified in order to
assure that the law serves good public policy and
social interests, although legal instrumentalists
could also see the end of law as the promotion of
justice or the protection of human rights.
MERITS OF THE THEORY:

1. The distinction that the realists draw between law in the books
and law in practice is a valid one.

2. Its particular contribution is to highlight the creative nature of

judicial role and to show that legal decisions often involve
complex problems of value judgments on questions of policy.
3. The opinion that judges should not bring in their subjective
value judgments in deciding cases has been rejected by theory of
legal realism. Because in United States, the courts in
constitutional cases accept evidence derived from sociology,
physiology and other sciences.
CRITICISM ON THE THEORY:
1.
The theory has the following drawbacks:

1. It is possible theoretically that a state comprising of courts that are

completely free to decide any point of law as they wish but in the ordinary
legal system, this is not possible. A piece of legislation is certainly not a
prediction of judicial behavior, the legislature in passing the law is laying
down what shall be done.
2. Secondly, a statute law is law as soon as it is passed. It does not have to wait
for the judicial recognition by the courts. The real thing is that statutes are
recognized by the courts because they are law. It is not judicial recognition
that makes them law.
3. Thirdly, only a fraction of law suits can give rise to the creation of new law.
Law is so certain that a great number of disputes never reach to the courts.

4. Fourthly, the uncertainty in language exists in some cases is not a universal

disorder of the legislation. For most of the law, language is certain. Anomaly
only arises in certain cases due to language
5. People act according to law as they understand it. To see what the law is in
actual, one has to see statutes, rules and notifications of the legislature and not
to the judicial practice. It is the law that provides a guideline to governs one’s
life.
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