Jurisprudential Aspect of Legal Realism and Critical Analysis of the Realist Movement in America
(Research Scholar),Indian Institute of Foreign Trade Management, University, Moradabad, India
Volume III, Issue IV, 2020
Law is not just about reading and applies the written word as it is. Understanding law requires the interpretation and application of legal rules and doctrines as well. Hence, there arises a need to introduce a sane approach to problems of and about law. The sane approach would be purpose of the facts and circumstances of each case and not mechanical application of law. Looking at appliance of law from this perspective can be called a ‘realist’ interpretation of law. Thus comes up the question that what part of judicial decision making is based on legal reasoning, which can also be put as the facts earn points in a case or are the black written word is the binding force. Being realistic is the approach to solve any problem one says. The theory of realism can be said to be born out of this simple thought.
It was around 1920s that some American Jurists notably Holmes, Cardozo and Gray raised their voice against legal conceptualism and stressed on the study of law as it actually operates and functions. They emphasize on functional and realistic study of law not as limited in the statute but as interpreted by the Courts in their judicial pronouncement. They were called Realists and their legal approach has been called Realist School of jurisprudence. Though it also is pertinent to mention here that some jurists refuse to accept realism as a separate school of jurisprudence and hold that at best it may be called as a branch of sociological jurisprudence. The reason for this emanate from the inability of the realists to present their views in a coherent fashion as there are different degrees of realism and various fronts and opinions.