American Realism
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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