American School of Thought

Topics: Law, Supreme Court of the United States, Appeal Pages: 15 (5360 words) Published: August 10, 2012


Realist school

There are two fold of realist school i.e. American school and Scandinavian. The most famous representatives of American Legal Realism were Karl Llewellyn, Felix S. Cohen, Arthur Linton Corbin, Jerome Frank, Robert Lee Hale, Herman Oliphant, Thurman Arnold, Hessel Yntema, Max Radin, William Underhill Moore, Leon Green, and Fred Rodell. The most famous representatives of Scandinavian Legal Realism were Alf Ross, Karl Olivecrona, and A. Vilhelm Lundstedt.[1] The realist approach was to attempt to look at rthe facts of the legal experience,and not at those things, such as the legal rules and doctrine which were in theory held to be important[2]. These two fold of realist school have their own view but the notion of these schools is same. Both school’s aim is to make clear vision and focus on fact .The realist approach to law is a part of sociological approach .sociological and psychological aspect plays vital role in the both school .Realist school has it own identity and it focus on fact and reality .The law is effected by situation of society and it can’t be separate from realist school. Realist made law as a main subject matter but not society. The social aspect directly affect in law making and development of law for the legitimate of it, it should concern to the judicial body. The realist school emphasis the decision made by law so it is seen that somehow it is judge made law. So they focus more on court. According to realist philosopher law is not a collection of logics.[3] According to them law is the action taken by court and judge. What the court decides is called law. Some of the scholars said that there is not existence of law with out judge decision. The rule clamed by lawyer about the pre assumption of court decision. for example , ‘A’ and ‘B’ are husband and wife and ‘B’ lives separate with out concern to ‘A’ and she lives more than three years and more , she use to harm ‘A’ then ‘A’ can divorce ‘B’ and we said it is law , but according to realist school it is not law but it is only law. It is the pre assumption of court decision about the fact based case with out consent of court; it is the source of law. All the aspect which influences the judge decision should be studied by the jurisprudence. The decision mad e by judge is the result of influencing aspects and judge may be influence by the psychological aspect , economical status , social , cultural , environment etc. The judge may attract with opposite sex , he or she may decide in favor of her/ him .For example , the judge decide in favor of girl by considering her virginity or purity and future in case of relational disputes . This kind of decision shows the confident among Hindu women and purity[4].

Characteristics of realist school
The main characteristics of the realist jurisprudence as stated by Good hart are follows: 1. The realist believes that there can be no definiteness above law as its predictability depends upon the set of facts which are before the court for decision. 2. They do not support the formal, logical and conceptual approach to law because the court while deciding a case reaches his decision on ‘emotion’ rather than logical grounds. 3. They lay greater stress on psychological approach to the proper understanding of law as it is concerned with human behavior and convictions of the lawyers and judges. 4. Realists are opposed to the value of legal terminology for they consider it as facit method of suppressing uncertainty of law. 5. The realist school prefers to evaluate any part of law in terms of its effects.

American realist: Holmes[5] view
American realist school was noticed in 1897 in the essay of jurist Holmes. He was the American jurist ‘(30years justice of US supreme court) both in his writing in his long tenure as a justice of the supreme court of U.S.A. Holmes played a fundamental part in bringing about a...
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