What is American Realism?
American realism is made up of analytical positivism and sociological approaches. It is broken down as:
- Considering the law as it is, and
- The law is the result of several elements
It is believed to be of adjudication rather than the mechanical concept of law. According to American legal realists, it is beyond the adjudication and more about the legal principles and not controversial facts. Legal realism brought about a huge revolution to the concept of early law and took it beyond the written legal codes and systems, and extended to social relationships and cultural approaches. Their focus has been on the significance of human will and imperfection during the enactment process.
Definition of American Realism
Instead of calling it a school of thought, American realism is termed as a movement. It is because the whole concept has not been definite, and there is no fixed approach to it.
According to Friedman,
Realist school prefers to evaluate any part of the law in terms of its effects.”
According to Roscoe Pound,
Realism is the accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be or as one feels they ought to be.”
History of American Realism
When the orthodox classes made unrealistic claims during the late 19th century in the United States, several scholars and jurists attacked the concepts and legal approaches. This led to the rise of legal realism.
Therefore, American realism is the strong challenge made towards the classical legal and orthodox claims that were not supported by politics.
The school of legal realism is segregated into two parts:
- Scandinavian Realism
- American Realism
As the name suggests, Scandinavian realism was formed in the Scandinavian countries and other parts of Europe while American realism existed in the United States of America. Both the schools didn’t treat law as lifeless and implemented radical empirical approaches to the study of law. They studied law as one evaluates cause and effect in a relationship.
‘Oliver Wendell Holmes’ introduced the concept of American realism in jurisprudence, and he is known as the ‘Spiritual Father of American Realism Movement’. In his paper, ‘The Path of the Law’, he provided the first approach to realism in the year 1987.
The Movement of American Realism
American realism is not a theory or a set of definite systems; it is a movement or a historical phenomenon. Even though it is one of the schools of legal realism, it is not called a formal school of thought.
This movement commenced in the United States in the 19th century when Franklin D. Roosevelt was the President.
The concept of American realism is known as the last element of sociological jurisprudence. It studies various aspects of law after its execution and its impact on the target element, hence it is known as realism. Some jurists such as Llewellyn do not accept American realism as a separate branch of jurisprudence. According to them, it is regarded only as a movement and not a theory.
Characteristics of American Realism
- The law must be in flux and should be judicially created.
- Law is a means to meet social relations. There should be a thorough analysis of the reason; its impact and it must be judged from both perspectives.
- Societal changes are rapid as compared to the law. Therefore, there is a continuous requirement of examination of law to meet existing social issues.
- Law is uncertain, and the predictability feature depends on the facts laid before the court to make decisions.
- The formal and conceptual approaches to the law are not considered at all. This is because the court should decide a case based only on logical grounds and not on an emotive basis.
- The realism movement has more emphasis on the psychological approach of law. It is connected with human behavior.
- Realism states that legal terms affect the uncertainty of law and opposes it. So, it does not support legal terminology.
- The legal case studies were analyzed from the judge’s justification to the decision already made and the motivation behind every decision.
- The different outcomes of the courts within a similar framework are studied under the realism movement. These results are studied as per the facts of a case.
Difference between American Realism and other Schools of Jurisprudence
American Realism and Legal Positivism
Even though both these concepts are completely different from each other, there is one similarity. The views of jurists of both the schools are similar on the point of ‘law as it is’ and ‘law as it ought to be.’
American Realism and Sociological Approach
Realists are primarily focused on the execution of the law; its functioning and logical observation. They are not concerned with the ends of law as it is done in the sociological approach. Some jurists have refrained from giving the realism movement status of an independent school of jurisprudence. They think that it deserves the status of a new methodology.
American Realism and Natural Law
As the name indicates, it states that laws are enacted by God, or the universe or nature. However, the realist school differs from this opinion and states that judges or jurists create the law and the legal system. They are based on different aspects. Natural law is based on morality and ethical principles. But according to realists, the law is made by human beings who are qualified who are known as jurists or judges.