Table of Contents
- Introduction
- Features of Realist School
- Criticism of Realist School
- American Realism
- Jerome N. Frank
- Karl Llewellyn
- Scandinavian Realism
- Karl Olivecrona
- Alf Ross
Introduction
Realist school represents the latest evolution in the study of law. Unlike traditional views that define law as a rigid set of rules and principles, the realist approach dives into how the law functions in real life.
This school is grounded in practical observation. It doesn’t dwell on what law should be—instead, it focuses on how law actually works in courts, society, and daily life. That’s why it’s often referred to as the Functional School of Law.
Key Idea:
“Law is not just a written rulebook—it is what judges actually decide in courtrooms.”
Judges don’t make decisions in isolation. Their rulings are shaped by a mix of:
Their own experiences and beliefs,
Arguments by lawyers,
Broader social and political influences.
There are two branches of realism.
- American Realism
- Scandinavian Realism
Features of Realist School
- Law has no absolute certainty- Realists argue that there’s no such thing as absolute certainty in law because law isn’t a static document—it evolves through the decisions made in courts. Each judgment contributes to the living body of law.
- Focus on Motives, not just logic- Unlike classical schools that rely on logic and formal reasoning, the Realist School believes that courts don’t always follow strict legal logic. Often, a judge’s personal motivations, biases, or values play a major role in how cases are decided.
- Law is deeply human- This school puts a spotlight on the human element of the legal system. This school emphasizes the psychological behavior of humans
- Law must be measured by its impact- Realist believe that the practical outcomes of law matter more than theoretical perfection.
Criticism of Realist School
- Ignoring the Foundation rules and legal principles- Critics argue that realist thinkers go too far in rejecting traditional legal norms. They treat law as nothing more than a series of court decisions.
- Law that never reach the court- Realist theory tends to focus only on what happens in courtrooms, neglecting the vast portion of law that never gets litigated.
American Realism
The roots of American Realism trace back to Oliver Wendell Holmes, often hailed as the spiritual father of the movement. Emerging in the United States, this school of thought marked a revolutionary shift from idealistic notions of law to practical, real-world judicial behavior. The main proponents of american realism are Jerome N. Frank and Karl Llewellyn
Since this school of thought originated in the U.S., it’s widely recognized as American Realism.
The main features of American realism are:
- It is based on the social and Economic realities in the society
- It is influenced by scientific approach
- They believe that law is continuous
- It focuses on the everyday life of the individuals in the American society.
Jerome N. Frank
Jerome Frank, a prominent figure of the American Realist School, revolutionized legal thought through his groundbreaking book Law and the Modern Mind. His insights shifted the focus of jurisprudence from rigid rules to the human elements that influence legal decisions. He define following things in his theory of jurisprudence:
- According to him law is continuous, uniform, certain and invariable and the judges do not make law, instead, they discover it.
- In this theory frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty is inherent in it.
- He recognized that rules of law provide guidance for judge in making decision as they emobody the policies and ideals of the law makers.
- According to him Judge and jurymen may have bias towards a race, sex, religion but there are unconscious biases also toward certain people which could influence the judge.
- Other American Realists defined law as the decisions of the judge but Frank described the decision as based upon rules and facts.
Karl Llewellyn
Karl Llewellyn was a leading figure of the American Realist movement and served as a distinguished Professor of Law at Columbia University. Interestingly, he rejected the idea of a formal “Realist School” and instead viewed Realism as an approach within Sociological Jurisprudence — a lens through which we observe law in action. Key elements of Karl Llewellyn`s jurisprudence are:
- Law is a complex institution- Llewellyn saw the law as more than a rulebook. To him, law was a rich institution made up of rules, legal principles, precedents and ideologies.
- Law in the Hand of Judges- Llewellyn emphasized that law is not just an objective code, but something more dynamic — shaped by the judge, often influenced by personal biases and interpretations.
- Society outpaces law- He famously observed that society changes faster than the law. As a result, Llewellyn stressed the constant need to re-evaluate how effectively the law addresses modern social issues.
Scandinavian Realism
Scandinavian Realism emerged from the intellectual traditions of the Nordic countries, offering a unique perspective on how law operates, not just on paper, but in the minds and lives of people. Key thinkers of scandinavian realism are Alf Ross and Karl olivecrona.
Key Features:
- Focus on Social criticism and moral conflicts- Scandinavian Realists explored how law is used to resolve ethical dilemmas and societal tensions, making it more than a mechanical system of rules.
- Regional and National Emphasis- Rooted in Scandinavian societal values, this school of thought reflects local traditions, culture, and national priorities—making it deeply contextual and grounded.
Karl Olivecrona
Karl Olivecrona, a pioneering figure of the Scandinavian Realist School, made a lasting impact on legal philosophy by redefining how we perceive the binding force of law. His work blends psychology, formalism, and practical administration into a single coherent vision.
Key Concepts:
- Law are social facts- He viewed law not as abstract principles, but as a set of social facts grounded in real-world experience.
- Imaginary Judicial Action- According to Olivecrona, the content of law lies in the idea of an imaginary action—what a judge would hypothetically do in a given situation.
- Psychological Pressure- According to Karl, society imposes psychological pressure through formal procedures like passing laws, signing bills, and public declarations which are enforced by the authorities like Police.
- Law shapes Morality- He argued that morality itself evolves under the influence of law, making law not only a rulebook but also a moral compass for society.
Olivecrona defines two kinds of rules in his theory:
- Primary Rules- Primary rules are the rules which prescribe the conduct of the parties.
- Secondary Rules- Secondary rules are the rules which deals with consequence of obedience.
Alf Ross
Alf Ross, a renowned Scandinavian Realist, made significant strides in redefining law through a scientific and sociological lens. His theory brought a fresh understanding of how norms function in real societies, moving beyond traditional legal philosophies.
Key Concepts:
- Law are socially binding norms- Ross believed that norms are treated as law because judges perceive them as socially binding. It’s not about the law being written—it’s about what is felt and followed.
- Norms are requirements tied to reality- Ross described a norm as a directive that expresses a requirement, one that reflects social facts and is expected to be followed by the public.
Alf Ross defines two kinds of norms in his theory:
- Norms of Conduct- These are the norms that guide individual behavior. They tell citizens how they’re expected to act—like rules that define the “right way” to behave in society.
- Norms of Competence- These norms establish the legal machinery. They define who has authority, under what conditions, and when sanctions or penalties may be applied.
References
1. Studies of Legal Theory and Jurisprudence by Dr. N.V. Pranjape
