By Diksha Mittal

Abstract

Oliver Wendell Holmes (1841-1934), who is regarded as the “Spiritual Father of the American Realism Movement”, established the idea of American realism in jurisprudence. He presented the first methodology of realism in the year 1987 in his work “The Path of the Law”.

Introduction

The central aim of the American legal realists is to attack Christopher Columbus Langdell’s (1826-1906) idea of legal formalism which means that law has clear rules, and cases can be solved by applying these rules and principles. However, American legal realists asserted that there are many subjective factors in law and that it lacks clear rules. According to Oliver Wendell Jr., “The life of the law has not been logic; it has been experience”. The implication of Oliver’s claim is that law is a subjective system created by humans, hence, inconsistency is unavoidable. Holmes contends that law is not a deductive subject, refuting Langdell’s assertion that law is only a science of deductions and the idea of the “Case Method”. Judges base their judgments on their subjective understanding of what is right or wrong. He embraced the perspective of a hypothetical Bad Man facing trial in order to see what the law is in reality. His theory is hence referred to as the “Bad Man Theory”. For instance, the cases cannot be judged merely based on how offer and acceptance are defined. The courts have made decisions based on human experience, politics, and ethics rather than formal logic because the cases grapple with consequences.

Analysis

The idea that law is indeterminate is another central aspect held by American legal realists. Through this idea, they imply that, due to a lack of standards, the law doesn’t have answers to all the questions. Holmes further establishes the argument that propositions do not decide cases, which ultimately means that answers to legal questions cannot be found in legal material. Jerome N. Frank (1889–1957) contributes to it by asserting that even the case facts are not decided. This essentially implies that a judge can interpret facts based on their wills and fancies and consider material facts that they seek to be established. This issue can also be examined in contemporary times with the example of the Supreme Court of India. A similar framework of subjectivity can be seen through different decisions given by courts. There aren’t set standards that are followed and while judges use the coded law to decide cases, they also rely on their discretion to a great extent. The court decisions and a judge’s opinions are unpredictable as a result. For instance, the court sentenced all three attorneys in Re: Vijay Kurle (2020) contempt of court case to three months of imprisonment and a fine of Rs. 2000, while in Re: Prashant Bhushan and another (2020) case, the court only levied a symbolic ₹1 fine. This demonstrates that there are no standards and that the court has used its discretion.

The notion that law is not neutral, which gained prominence during the era of critical legal theory, is another fundamental insight held by American legal realists. It places emphasis on the notion that the law replicates its past structures. The decision-making process is arbitrary and prejudiced since it is heavily influenced by the social background, the case’s facts, the judges’ ideologies, and professional consensus. The dispute over child custody is one such instance in which judicial bias is clear in our times. Wherein females are given preference for custody even though the mother and father have similar qualifications, similar job histories, and comparable incomes. This is because a number of judges hold the opinion that a child will grow up better with a mother than a father, resulting in a situation of gender bias. A notable illustration of gender bias is the 2011 case of Km. Kranti v. Uttarakhand Sahkari Chini Mills Sanghi LTD.

Another insight of American legal realist Karl Llewellyn is that of law in paper and law in action. There are certain paper rules, but one has to see how they are used in reality before they are considered real rules as opposed to paper rules. In present times, child marriages can be seen as legitimate in the eyes of the law even though it is punishable on paper under the law (Section 5 The Hindu Marriage Act, 1955). On one hand, criminal sanctions have been put in place to prevent this menace, while on the other, the court upholds child marriage as legitimate in cases like Hardev Singh vs. Harpreet Kaur & Ors. As a result, child marriage remains a criminal offence on paper as a situation that is both illegal and punishable but nonetheless occurs in action.

Conclusion

It can therefore be concluded that to some extent American legal realism does hold its roots in contemporary times, as we have witnessed above in numerous recent cases. As a result, American Realists are right in pointing out the significance of human choice and fallibility in the formulation and interpretation of the rule of law. The judge’s point of view on certain legal issues may be influenced by a number of factors, which this piece has highlighted through various contemporary cases.

Image Credit – Pexels 

About the Author

Diksha Mittal is a bachelor of Law student at Jindal Global Law School, Sonipat, India. Her enthusiasm flows towards legal research and drafting and she would also like to write about various public policies and key areas of the law that she feels are significant for society. She has worked at a variety of different places to gain expertise in the legal field. Additionally, whether it is in corporate or commercial law, she is keen in working, learning, and expanding her horizons across numerous legal disciplines.