Discuss and evaluate the contributions, if any of the American Realists to jurisprudence

and legal theory.

Legal realism is a family of theories about the nature of law developed in the first half of the
20th century in the United States, which is known as American legal realism. The essential
principle of legal realism is that all law is made by human beings and is therefore subject to
human foibles, frailties and imperfections
In general, no single set of beliefs was shared by all legal realists, but many of the realists shared
one or more of the following ideas:1
• All legal realist belief in the indeterminacy of law. For example, many of the legal realists
believed that the law in the books such as statutes and cases did not determine the
results of legal disputes. One of the legal realists, Jerome Frank is famously credited with
the idea that a judicial decision might be determined by what the judge had for
breakfast.
• They also belief in the importance of interdisciplinary approaches to law, whereby many
of the realists were interested in sociological and anthropological approaches to the
study of law.
• They belief in legal instrumentalism, which the view that the law should be used as a tool
to achieve social purposes and to balance competing societal interests.
Besides, legal realism operates on a principle that is adhered to, often unwittingly, by most
laymen and many who have legal training: that "the law," whatever that may be, is concerned
with and is intrinsically tied to the real-world outcomes of particular cases. However, by
accepting this principle had moves jurisprudence or the study of law in the abstract, away from
hypothetical predictions and closer to empirical reflections of fact. Proponents of legal realism
say it is not concerned with what the law should, or "ought to" be, but that legal realism simply
seeks to describe what the law is. Proponents of legal formalism disagree, saying that "law" is
what is commanded by a lawgiver, that judges are not lawgivers, and that what judges do, while
it might belong to the field of law, is not "law" but legal practice.
Furthermore, many developments in legal thought have drawn a lot from legal realism,
including the development of the legal process school, a theory that attempted to chart a middle
way between the extremes of realism and formalism. Realism remains influential, and a wide
assortment of jurisprudential schools today have either taken its principle to greater extremes,
such as critical legal studies, feminist legal theory, and critical race theory, or more moderately,
such as law and economics and law and society. Legal realism also influenced the recognition of
political science and studies of judicial behavior therein as a specialized discipline within the
social sciences.2
One of the American Realist, Oliver Wendell Holmes laid the foundation of healthy and
constructive scepticism in the law. In 1881, Holmes published The Common Law, representing a
new departure in legal philosophy. By his writings, he changed attitude to law. The opening
sentence captures the pragmatic theme of that work and of Holmes's philosophy of law: 'The life
of the law has not been logic; it has been experience.3

1
http://en.wikipedia.org/wiki/Legal_realism
2
http://en.wikipedia.org/wiki/Legal_realism
3
Modern Jurisprudence, Prof. Hari Chand, p.210
Holmes declared that the law should develop along with society. He also argued for judicial
restraint, asserting that the Court should not interpret the Constitution according to its own
social philosophy. According to Holmes, 'men make their own laws and these laws do not flow
from some mysterious omnipresence in the sky, and ... judges are not independent mouthpieces
of the infinite. ‘The common law is not a brooding omnipresence in the sky. Holmes compared
the Law to a bad man "who cares only for the material consequences of things." Holmes defined
the law in accordance with his pragmatic judicial philosophy. Rather than a set of abstract,
rational, mathematical, or in any way unwordly set of principals, Holmes said that '[t]he
prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by
the law. Accordingly, Holmes thought that only a judge or lawyer who is acquainted with the
historical, social, and economic aspects of the law will be in a position to fulfill his functions
properly.4
As a justice of US Supreme Court, Holmes introduced a new method of constitutional
interpretation. He challenged the traditional concept of constitution. Holmes also protested
against the method of abstract logical deduction from general rules in the judicial process.
According to Holmes, lawyers and judges are not logicians and mathematicians. The books of
the laws are not books of logic and mathematics. He writes: "The life of the law has not been
logic; it has been experience.
Another American legal realist, Karl Llewellyn put significantly more emphasis on the facts of a
specific case than on general legal rules. Law, the realists contended, is not a deductive science.
He is famous for his statement that, by referring to judges, sheriffs, clerks, jailers and lawyers,
what these officials do about disputes is, to my mind, the law itself. While this predictive
approach to defining law of the law was criticised as incomplete by H.L.A. Hart, it has had a
significant impact on jurisprudence generally.5
Llewellyn regarded statutes and precedents as mere paper rules. But the courts actually operate
‘real rules’ which have to be discovered or brought to light. Llewellyn claimed that ‘paper rules’
misdescribe the reasoning process judges in fact adopt in reaching their decisions. Ratio
Decidendi provided mere ‘paper justifications’. Llewellyn explains that there are mainly two
reasons why ‘paper rules’ fail. First, legal rules are framed in such a way that there is usually a
certain amount of leeway for future application. Thus, a lawyer is at a loss to predict how the
judge will decide a case. Secondly, judges may play down, of not disregard, the rules, thus,
accurate prediction cannot be done on the basis of ‘paper rules’.6
American legal realist, Jerome Frank had contributed to jurisprudence by giving a principle
about the basis legal myth. Frank holds that it is a basic legal myth to think that law can be
relatively permanent and fixed. Since law deals with human affairs, it is absurd to realize even
proximate and predictability in law. Then, he question, ‘but why do people seek certainty in
law?’ frank provides an explanation for this quest in human psychology. He says that people
seek unrealizable certainly in law because they have not yet relinquished the childish need for
authoritative father and unconsciously have tried to find in the law a substitute for those
attribute of firmness, sureness, certainty and infallibility ascribed in childhood to the father.

4
http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes,_Jr
5
http://en.wikipedia.org/wiki/Karl_Llewellyn
6
Modern Jurisprudence, Prof. Hari Chand, p.210