Introduction:
One version of legal realism was the one propounded by
Samlond, who pointed out that all law, is not made by the legislature. In fact
he argued that in England much of it was made by law courts. Nevertheless, all
laws, however made, are recognized and administered by the courts. Therefore,
if a rule is not recognized by a Court, it is not a rule of law. Thus,
according to Salmond, it is the courts and not the legislature that we must
turn to if we wish to ascertain the true nature of law. Accordingly, he defined
law as the body of principles recognized and applied by the State in the
administration of justice, as the rules recognized and acted upon by the
Courts.
However, there has been another version of legal realism, particularly
in the United States of America. According to this theory propounded by
American jurists, law is in reality judge-made. The origin of this theory is
traced to Justice Holmes, and the theory has a substantial following in the
United States.
Holmes highlights the situation not of the judge or the lawyer, but of
what he calls ‘the bad man’, i.e. the man who is anxious to secure his own
selfish interests. Such a man is not interested in knowing what the statutes or
the text books say, but what the Courts are likely to do in fact. This theory
makes a distinction between law in books and law in action.
According to this theory, what the courts will actually do cannot
necessarily be deduced from the rules of law in text books or even from the
words of the statutes themselves, since it is for the Courts to say what the
words mean. As Gray observed, “The Courts put life into the dead words of the
statute.” This approach is a reaction to the traditional approach that judges
do not really create the law, but only declare what the law already is.
This school fortifies sociological jurisprudence, and recognizes law as
the result of social influence and conditions and regards it as based on
judicial decisions. In the words of Holmes,
“The life of the law has not been logic; it has been experience.” Or as
Paton pointed out, “Law is what the Courts do; it is not merely what the Courts
say. The emphasis is on action.”
However, the American realists point out that when Courts must choose
between alternatives, much will depend on the subjective element of a judge.
The judicial process, they argue, is not like that of a slot machine. Much will
depend on the temperament, upbringing, social background, realities, learning
etc of the judge. Therefore, they contend that law is nothing more than the
prediction of what the Courts will decide.
It is also argued that the language of several statutes is uncertain and
the Courts are therefore called upon to decide what a particular word or phrase
means. Thus, for instance, the English Road Traffic Act makes it an offence to
drive a vehicle in a manner dangerous to the public. An interesting question
brought before the Court was whether a person who steers a broken down vehicle
on tow can be said to be driving it.
Since the Parliament and not defined the word ‘driving’, the word would
have to be understood in the ordinary sense. However, the ordinary usage of the
word is not wide enough to cope up with such a marginal situation, as it does
not draw a very clear or distinct line between what is driving and what is not
driving. Faced with this question for the first time in 1946, the Court had to
draw such an arbitrary line and further define the term ‘driving’ in Wallace v.
Major.
A note can also be made of Scandinavian Realism, the founder whereof was
Axel Hagerstrom. Whilst the American realists preferred to revolve around what
the Courts did and what the judges said, the Scandinavian School sought to
develop a formal philosophy of law, showing how law is not an inextricable part
of society as a whole. The Scandinavian Realist does not look at law as a
divine command. According to them, law creates morality and not the other way around.
Criticism
The view that a statement of law is nothing more than a prediction of
what the Courts will decide is subject to certain criticism.
Legal situations are not predictions
It should be noted that a statement of law is seldom treated as a
prediction, which a counsel submits before a Court. He is not forecasting what
the judge will decide, but he is asking what the judge should decide. Further,
a judicial decision is not a prediction of what the higher Courts would do, but
it is a judgment as to what the law now is. Similarly, a legislature is not
predicting what will be done, but it lays down what shall be done.
The theory represents a fraction of the situation
Though the realist view may be true to some extent in those situations
when a new principle of law is evolved, yet it should be noted that most of our
law is settled and stabilized. It should also be noted that several points of
law never reach the Court, for the simple reason that the principle of law is
so clear that the parties adhere to it.
Thus, it is argued that the creative days of the judge is now a thing of
the past. It is argued that today the law is so complete that the task of the
judges is the more or less automatic task of applying settled laws to the cases
before them.
However, this criticism is not without an answer. Legal rules are still
not as certain as was once imagined and the element of choice still faces a
Court of law. To quote one example, in England the unlawful and intentional
killing of a human being is the common law crime of murder. But what would be
the position if X intentionally inflicts a mortal wound on Y, and then,
mistakenly thinking him to de dead, throws the body into a lake, with the
result that Y dies, not from the wound but from drowning? Would this amount to
murder? Until 1954, the English law had no answer to this question, when these
facts were before the Court in Thabo Meli v. R, in which case the Court had to
further develop the English law of murder.
The theory of uncertainty of language is not always correct
It may be noted that in some border-line cases, the language may be uncertain,
as in the example of the word ‘driving’ given earlier. But to generalize that
all language is uncertain is to exaggerate the situation without foundation. In
marginal cases, the meaning of the word may be uncertain, but this proves that
the meaning of the word is certain in other cases. Therefore, the
The
origin of the theory of Legal Realism can be traced to Justice Holmes. The theory propounds that it is the courts
and not the legislature that we must turn to if we wish to ascertain the true
nature of law. The theory works on the belief that “the Courts put life into the dead
words of the statute.” However, there has been some criticism of this
theory.
jurisprudence
