Realist School of Law – American
and Scandinavian Realism
American Realism: W Holmes, Karl Llewellyn, Jerome Frank
Scandinavian Realism: Axel Hagerstrom, Alf Ross, Karl Cron
English Realism: Salmond
Realist School studies role of judges in creation of law. Therefore, there is a lot of emphasis on
precedent and the doctrine of stare decisis.
Why was this school established?
This school was established to point out the importance of Courts and the importance of judges-
the human factor is the judges and the lawyers.
“American Realism is a legal philosophy that arose in the early 20th century. It stresses the
importance of judges' subjective interpretations of the law and their ability to use their judgments
to affect social change.”
It is interweaved with the Socialist School. It cannot be denied that the society affects law and
vice-versa.
Pound’s definition: “Realism is the accurate recording of things as they are, as contrasted with
things as they are imagined to be or wished to be or as one feels they ought to be.”
Oliver Holmes is considered the Father of American Realism. He spearheaded the American
Realist Movement through his paper in 1987 “The Path of Law.” Remember, for context, Oliver
Holmes was a Supreme Court Judge himself.
According to Holmes, the law is what courts (or other officials) do, not what they say. Until a
court has passed judgment on certain facts, there is no law on the subject yet in existence, for the
Realist School of Law – American and Scandinavian Realism 1
opinions of a lawyer are only a guess as to what the court will decide.
Realism makes the distinction between law in books and law in action.
“Judges and Courts put life into the dead words of the Statute.” – John Gray
Gray divides law into two kinds:
(a) Actual Law (b) Probable Law
Gray also says that it is not the legislature, but the Courts that create the real/actual law.
Jerome Frank:
“The Breakfast Theory” – Law is what the judges had for breakfast
The theory is based on the idea that judges, like people having breakfast, make decisions based
on a mix of habit and intuition, rather than a strict application of rules and principles.
Frank argued that judges often face situations where the law is ambiguous or incomplete, and
where they must make decisions based on their own personal values and judgments. In these
situations, judges rely on their own experiences, biases, and intuitions to fill in the gaps and
make decisions that are consistent with their own views of justice and fairness.
Example of Justice Bhagwati, Justice D Y Chandrachud, Justice Krishna Iyer
Law uncertain – Law is not certain and consistent, in fact there is a lot of uncertaintly. Judges,
therefore, do not create law, but discover it. “Certainty of Law is a legal myth”
Frank himself was a “fact-skeptic” – suggesting that often the verdict depends on how the judge
frames and understands the fact, and there is nothing to suggest that he would do so correctly
every time.
Llewewllyn
Judges are guided by the Situation they find themselves in
Realist School of Law – American and Scandinavian Realism 2
Other factors:
Responsibility of Justice
Judicial Scrutiny and Honesty
Issue Limited in Advance
Adverse Arguments of Counsel
Legal Doctrine Concept
Group Discussion
– Law should be in flux with the society (here, we find traces of sociological school of thought)
– There must be a temporary separation of ‘is’ from ‘ought’
Scandinavian Legal Realism
Principles Features:
1. Metaphysics is totally rejected – law is stripped of all metaphysical sense; the ideas of
Natural Law Theory are totally discarded and repelled.
2. Law creates morality. Morality is due to law, not vice versa.
Realist School of Law – American and Scandinavian Realism 3
