Abstract: –

Through this article, I have thrown light on the realist school of jurisprudence along with various aspects in it. Also, I have given a brief description on Jurisprudence and on some other schools other than realist school. My message through this article is to throw light on various branches of schools and what all points they have under it.

Introduction: –

Jurisprudence has been originated from the Roman Civilization like other branches of knowledge. The word ‘Jurisprudence’ in Latin terms means ‘Jurisprudentia’ or ‘the knowledge of law’. The meaning in which the term Jurisprudence conveys in these modern times is actually a result of the course of evolution. The Romans never confused law with morality in practice, but under the basis of a theory, we could not find a proper difference between them. The main idea of Jurisprudence was defined by Ulpian, the great Roman jurist. He said that Jurisprudence is “a knowledge of things, divine and human, the science of right and wrong.” Romans used to believe that there was some connection between or right to which the law should conform and all the jurists should know about it clearly. This is the reason when another great jurist Paulus said that “law is not to be deducted from the rule, but the rule from the law.”[1] The definitions given by these great jurists was actually vague, or inadequate, and thus they deserved special status and identity because they have beautifully portrayed an idea of a legal science which exists independently of the actual institutions of a society.

Jurisprudence basically means a study or philosophy of a legal nature. There have been various philosophers and jurists who have given their ideas differently and widely as per their knowledge on it. In the eighteenth century, Modern Jurisprudence came into effect where some branches of law like natural law, civil law and the law of nations. Various Jurists like Hobbes, Blackstone, Bentham and Austin have beautifully portrayed the idea of Jurisprudence using their knowledge and skills and a wider approach to the law.[2]

Schools of Jurisprudence: –

Jurisprudence is the study and findings of law. It contains the cause and idea of law. Law is basically an idea that is unpredictable. Its comprehension varies from one individual to another. Everybody has an alternate perspective of the law. [3]There are five schools of Jurisprudence. They are: –

• Philosophical School
• Historical School
• Realist School
• Sociological School
• Analytical School

The Realist School: –

Realist School is a type of school which focuses on decisions. It is a branch of sociological approach. They believe that law is only on official action. Roscoe Pound has defined Realist School as: “Fidelity to nature, accurate reordering 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.”[4]

Llewellyn has said that realism or realist school is not a school of jurisprudence. Instead it may be called as a Sociological Jurisprudence. Not only that, sometimes it is also called ‘left wing of the functional school’. There is a small difference among these two things in one respect that they are little concerned with the ends of law. This school is known as ‘realist’ because it focuses on approach that studies law as it is in the actual working and its effects ahead. This school rejects traditional definition of law and also avoids any dogmatic formulation and fully concentrates on decisions given by the courts.

Factors Responsible: –

Talking about the factors that are hugely responsible for the formation of this school or realistic approach, there are several points coming up. Firstly, this system ideologically reflects on the influence of pragmatic philosophy that has originated in America. Basically, this school was given accreditation and its evolution is through American School of Jurisprudence. Secondly, the most important aspect which seems to its formation is relating to the organisation of judiciary in the country. It is stated that the American Supreme Court is the supreme authority where the final judgements are taken and abided too. In the lower courts, the judges are appointed and they are influenced for taking irrelevant or underrated decisions because of which they do not get any support from the people. The existence of state judiciary has led to immense increase in judgements and law. All these approaches have made the jurists to focus only on courts and not on law.

Characteristics of Realist School: –

These are some of the points that are clearly mentioning about the characteristics of the Realistic School or Realism Movement: –

1. In actual sense, there is no realistic school. It is known as ‘realism’ that is actually a movement which consists of thought and works in law.
2. Realism means a conceptual thesis on law in chunks and as a means of some social ends. It is implied in a particular society where changes are seen faster than the law.
3. It also assumes a type of divorce which is temporary in nature of ‘is’ and ‘ought’ so as to achieve the purpose of a study. It means all the purposes that are ethical in nature for the observer must underline the law are ignored and are not at all allowed to blur the vision of observer.
4. It also creates a sense of distrust in the traditional legal values and also the concepts designed so far as they appear to be described what either courts or common people are actually doing.
5. Lastly, it also focuses largely on the evaluations of any parts of law in respect to its effect. [5]

Criticisms: –

The approach made has been largely criticised on certain grounds. Firstly, the realists and jurists have underestimated the importance of the legal principles and rules regarding the law. They used to think that law never was, but always was a puzzle of unconnected decisions. Secondly, their concentration is ideally on litigation, but the point is there is a bigger point that never comes in front of the courts. Thirdly, these realists and jurists had also launched a serious attack on the juristic complications and myth of certainty.  But, in actual sense we found out that a huge amount of certainty and bunch of transactions regulated under this basis. Fourthly, they all have put strong emphasis on a factor which is human in nature. No doubt, it plays quite a huge part but that does not mean that the judicial determinations are the result of a Judge’s personality. Lastly, this approach of realism of American Jurists is mostly based upon and actually concerned with their own setting and thus not giving a universal method. These methods can only be applied at a society where social forces have played a bigger role in making law as common law systems. The analysis of the Scandinavian Jurists does not suffer from these types of weaknesses. Olivecrona, has emphasised on a nature which contains an applicability that is universal in nature.

Contributions: –

Although there are some criticisms against this system, there are certain contributions which have been made by this movement which was a really big thing in the end. The approach towards law that was made by them was actually in the positive spirit and also, they are not at all concerned with any of the theory of justice or natural law. They all believe that certainty of law is a myth. They have also even plead for an approach which is comprehensive and also examining all the factors that lead to the conclusion in the reaching of a cleaner decision. [6]

Conclusion: –

Jurisprudence is a systematic study of law. It is a kind of science which investigates the creation, application, and basic requirements of laws. It is the investigation of variety of theories and methods of insight in respect to the law.

There are five schools of jurisprudence. Although the schools of the law have largely tried to remove some of the shortcomings in the law making and procedures, there has to be an analysis and a study to clear the claim of the purpose and rationale behind the law. Moreover, the enactment of the laws must be looked accordingly to a practical approach other than a theoretical aspect.

[1] B.N. Mani Tripathi’s Jurisprudence- The Legal Theory

[2] https://en.wikipedia.org/wiki/Jurisprudence. (last visited 6^th June, 20:36)

[3] https://blog.ipleaders.in/schools-jurisprudence-thinkers/. (last visited 6^th June, 22:05)

[4] https://www.legalbites.in/schools-of-jurisprudence-notes/. (last visited 6^th June 23:00)

[5] http://www.legalserviceindia.com/legal/article-1952-nature-and-schools-of-jurisprudence-an-overview.html. (last visited 7^th June,11:45)

[6] V.D. Mahajan’s Jurisprudence & Legal Theory

Author: Akanksha Chowdhury, Legal Intern at Legal Desire (June 2020)

I am pursuing BBA-LLB from Amity University, Kolkata. I love to read books and my favorite author is Agatha Christie. My dream is to become a successful cyber crime lawyer and provide justice to all the victims of cyber crime. My main motto in life is ‘Courage is Destiny’.