Legal realism: American and Scandinavian

1. American realism: the forerunners

• Oliver Wendell Holmes Jr. (The Common Law, 1881; “The Path of the Law”, 1897). “The life of the law has not been logic: it has been experience.” Law should be seen from the standpoint of the bad man, who cares only for the material consequences of his conduct: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” His dissent in Lochner v. New York (1905) attacked judges who read their economic views into the Constitution.
• John Chipman Gray (The Nature and Sources of the Law, 1909). Law is what the courts lay down; statutes, precedents, custom and morality are only sources of law until the courts apply them. Bishop Hoadly’s remark, which Gray quoted, makes the point: whoever has absolute authority to interpret written or spoken laws is truly the lawgiver.
• Pound and Cardozo (The Nature of the Judicial Process, 1921) prepared the ground by exposing the creative element in judging.

2. The realists of the 1920s and 1930s

Karl Llewellyn (The Bramble Bush, 1930; “A Realistic Jurisprudence: The Next Step”, 1930; “Some Realism about Realism”, 1931; The Common Law Tradition: Deciding Appeals, 1960). He insisted that realism was a movement, not a school, and listed its common points:

1. law is in flux and is made by judges;
2. law is a means to social ends, to be judged by its effects;
3. society changes faster than law, so law must be re-examined constantly;
4. a temporary separation of is and ought for the purposes of study;
5. distrust of traditional legal rules and concepts as descriptions of what courts do (rule-scepticism);
6. distrust of the theory that rules are the main factor in producing decisions;
7. grouping of cases and situations into narrower categories than the old rules used;
8. insistence on evaluating law by its effects;
9. sustained, programmatic attack on legal problems along these lines.

Llewellyn distinguished “paper rules” from “real rules” (the actual practices of courts). Later, in The Common Law Tradition, he described the “Grand Style” of appellate judging, which uses situation-sense and reasoned policy, and he was the chief reporter of the Uniform Commercial Code.

Jerome Frank (Law and the Modern Mind, 1930; Courts on Trial, 1949), a judge of the Second Circuit, went further. The demand for legal certainty is a childish wish for a father figure. Decisions depend on the judge’s personality and on how facts are found at trial: witnesses err, juries are swayed, and the trial judge’s reaction to the parties is decisive. This is fact-scepticism: even if rules were certain, the facts to which they are applied are not. Frank urged reform of trial procedure and judicial education.

Others: Underhill Moore (behavioural studies of parking and banking), Felix Cohen (“Transcendental Nonsense and the Functional Approach”, 1935) and Thurman Arnold.

3. Realism as positivism plus sociology

But realism departs from both. Against Austin and Hart it is rule-sceptical: rules do not decide cases. Against Pound it is more empirical and less normative: it distrusted his catalogues of interests and wanted to study the behaviour of judges directly. A good conclusion: realism took positivism’s fact-orientation and sociology’s purpose-orientation and applied both to the courtroom.

4. Scandinavian realism

The Scandinavian realists, philosophers rather than practising lawyers, attacked the metaphysics in legal concepts.

• Axel Hägerström (Uppsala) founded the movement. Concepts like right, duty and property refer to nothing in the world of facts; they are survivals of magical thinking, as in Roman formal acts that were believed to create invisible bonds.
• Karl Olivecrona (Law as Fact, 1939; 2nd ed. 1971). Legal rules are “independent imperatives”: they have the form of commands but no commander. Their effect is psychological: people react to legal words, because of conditioning by an effective apparatus of force. Law is a set of rules about the use of force.
• A. Vilhelm Lundstedt rejected justice as a guide to legislation; the method should be social welfare, determined as a matter of fact.
• Alf Ross (On Law and Justice, 1958; “Tû-Tû”, 1957). Valid law is the norms that judges feel bound by and will apply; statements about law are predictions of judicial behaviour backed by the judges’ ideology. His “Tû-Tû” parable shows that terms like “ownership” are meaningless in themselves but useful as shorthand linking facts to consequences.

5. American and Scandinavian realism compared

6. Criticism

• Hart (The Concept of Law, ch. 7) argued that the prediction theory cannot explain the judge’s own position: a judge deciding a case is not predicting what he will do. Rules are used from the internal point of view, and most cases are settled by rules.
• Rule-scepticism exaggerates uncertainty by concentrating on appellate hard cases.
• Scandinavian theory reduces normativity to psychology and cannot distinguish a valid norm from a widely felt command.
• Yet realism left a lasting mark: law and economics, empirical legal studies, critical legal studies, and the realistic understanding that judges make law.

7. Influence of realism on the Indian judiciary

• Judges make law. In I.C. Golak Nath v. State of Punjab, 1967 INSC 45, the Court adopted prospective overruling from American practice, an open acknowledgment that judicial decisions create law. In Union of India v. Raghubir Singh, 1989 INSC 192, Pathak C.J. discussed the creative role of the Court and how it develops law within the limits set by precedent.
• Public interest litigation and epistolary jurisdiction made the Court a policy-maker, and Baxi’s writing on the Court as a political actor is realist in method.
• The basic structure doctrine (Kesavananda Bharati, 1973 INSC 91) is not found in the text; it is a judicial creation in response to political events, a realist’s example of law being what judges decide.
• Judicial appointments: the collegium was created by judicial decisions and the National Judicial Appointments Commission was struck down in 2015. Studies of “bench assignment” and the roster controversy reflect a realist concern with who decides.
• Frank’s fact-scepticism is visible in criminal-justice reforms on witness protection and audio-video recording of searches and seizures under the BNSS.

How this is examined

For the “combination” question, open with the forerunners, set out Llewellyn’s points and Frank, then use the table in section 3, then the departures, then criticism. For the American–Scandinavian question, use sections 4 and 5. The Indian short note uses section 7.