American Realism – Jurisprudence Notes

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  • American Realism – Law is not what is written in statutes and it depends on how courts choose to interpret them.

Oliver Wendell Holmes

  • Law is the product of experience and not logic.
  • Law is nothing more than the predictions of what courts will or will not do.
  • Law may exist independent of and may even be contrary to sovereign’s will. He argued that customs are as effective as statutory laws when it comes to regulation.
  • Law is the product of economic and social powers and adapt new connotations as per the need of the time.
  • Law exists even prior to its recognition by courts.

Rule of Judiciary

  • Final arbiter in common law countries is not the legislature but the highest appellate court.
  • Judges should recognize their duty to weigh considerations of social advantage and shed away pretensions of not legislating laws as in Holmes opinion judges do (legislate) it anyway unconsciously.

Law from viewpoint of the Bad Man

  • Holmes saw law as set of predictions.
  • “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
  • He proposed the thesis of a ‘bad man’ who tests law for him it doesn’t matter what the law is but what the particular court will decide in his case.
  • “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Karl Llewellyn

  • Law is not like a mathematical function where the judge could simply apply the rules and reach to a conclusion.
  • Rules are ambiguous making leeway for judges to apply their discretion while adjudicating an issue.
  • Since society is constantly evolving rules need to be checked as to how much they serve the society.
  • ‘The law as it is’ is shaped by moral considerations that the courts apply in the guise of logic.
  • Courts need to actively align the law with justice.
  • Rules as a criterion to check working of courts would lead to an unfair representation of the way courts actually decide cases.
  • In order to figure out the courts a person must look beyond the rules and study the various judicial opinions on a particular subject so as to understand how the courts have used the a particular rule in different situations.
  • Following above realist lawyer will deeply engage with past precedents and will find out a particular rule may be applied but this is still merely a prediction as they are not certain if precedent will be followed in the next case.
  • Since, rules content is dynamic and not static varying from each case to case can they really be considered a rule. Llewellyn considered that rules properly understood, serve the dual purpose of promoting legal certainty while allowing judicial freedom to do what is just.

The Grand Style

  • Grand Style is that style in which judges give themselves the authority to reshape the law according to their wisdom, provided that the grounds for doing so are explicitly stated and discussed.
  • Llewellyn believed that judges of appellate United States were at their best during first half of nineteenth century when they used the grand style.

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