Realist School of Jurisprudence

Realist School of Jurisprudence (Lewellyn, Karl. J.N. Frank. Oliverconna. Alf Ross):

Realist School of Jurisprudence

The reason behind the origin of the realist school of jurisprudence is the social engineering theory of Pound’s because in his theory he emphasized the fiction of judges, courts to harmonize the conflict between and maintain social order in society.

Introduction :

  • Realist approach as the ‘Left-wing of the functional school’.
  • Law has originated from a judge, therefore, the law is what court does and not what they say.
  • Judges are the lawmakers.
  • It consontrate on scientific observation of law and studies law in its actual working which is prescribed in court.
  • Also known as ‘Uppsala school of jurisprudence’.
  • The father of the realist school of jurisprudence is ‘Axel Hagerstorm.
  • The realist school of jurisprudence is the combination of analytical and sociological school of jurisprudence.

American Realism

A combination of analytical and sociological schools in analytical law as it is i.e. the decision given by judges in the court on the other hand, sociological because of the effect of judges made law on society.

KARL LLEWELLYN [1893-1962]

  • According to him “Law as means to a social end”.
  • According to him, law books are outdated now the focal point of attention
  • should be the behavior and the thinking of the deciding judges or the court.
  • He said that ‘judges are the lawmakers’.

JEROME N. FRANK [1889-1957]

  • Classical work ‘ law and the modern mind’ 1930
  • Frank made fact-finding by the court as the central theme of his realism.
  • He exploded the myth that law is continuously uniform, certain, invariable.
  • According to him, the judge does not make law instead they discover it.

OLIVER WINDELL HOMLES[1841-1934]

  • He discussed law from the point of view ‘the badman’ i.e. the person who is before the court as an accused or a wrongdoer.
  • Purely based on judge-made laws.
  • The duty of a judge to do justice, if there is the absence of any legislation, judges should give justice by their own discretion based on equity, justice, good conscience.
  • According to him “a judgment made by judges as the essence of law”.

JOHN CHIPMAN GRAY [1839-1915]

  • According to him, the law is what judges declare.
  • He emphasized that judges play a crucial role in making laws in a given social system.

SCANDINAVIAN REALISM

1.Axel Hagerstorm :[1868-1939]

  • The founding father of the realist movement in Sweden.
  • This school was also known as the Uppsala school of law.

2.Karl Olivecrona [1897-1980]:

  • According to him, the law is nothing but a set of social facts.
  • He rejected the view that law is a command of the sovereign.
  • According to him, there is no such thing as the binding force of law, it is a myth.

3.Alf Ross [1899-1976]:

  • He interpreted laws in terms of social reality. He supports the American line of approach i.e. judge-made laws.
  • He classified law or norm into two :
  • Norms of behavior
  • Norms of Procedure

LUNDSTEDT [ 1882- 1957]:

  • According to him the law is not only based on the notion of justice. It is framed according to the needs of society.
  • He observed that judges should think in terms of social aims and objectives and not right or duties.
  • He preferred to use the term social welfare in place of justice.

CRITICISM against realism :

  • Challenge the binding force of law.
  • Minimize the importance of law books and states.
  • Customs are ignored.
  • Over – emphasized on judges made laws.
  • The power of legislation is minimized.

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