Authored By: Athman Khilji


“Policy without moral considerations is blind.” At the heart of American Legal Realism, a layman might observe several contradictions and inherently different philosophical interpretations of what is perceived as legal realism, which is why historically, legal philosophers have differed in arriving upon a conclusive, common, coherent version of Legal Realism as a jurisprudential school of thought. Oliver Wendell Holmes, the founding father of American Realism believed it is not logic, but experiences and prejudices shared by judges with common men did so much more for Law and Governance than mere syllogisms. This gave this rise to pragmatism (a term coined during Holmes’ time in the “Metaphysical Club” at Harvard University) as it meant to oppose a formalist view of law. Roscoe Pound’s idea of sociological Jurisprudence reverberated greatly amongst the Realist discourse: he believed in advocacy of  “worldly matters” and firmly believed that Judges, more often than not, induced personal insight in their legal determinations and that their written opinions were couched in terms of “quasi-syllogisms”

The ambition of the Realist goal was not a far-fetched one: the idea of facts dominating legal investigation was neither an absurd, nor a morally overreaching one. The one thing that does stand out about Holmes’ idea was to improve the courts and judge’s ability of prediction: to make better and more accurate predictions of what a judge might rule in a case of the law through the instrumentality of the courts. Holmes uses imagery via law from viewpoint of the Bad Man, who cares only what the courts will do “in fact” and what are the material consequences of his actions which enables him to make better predictions, “in the vaguer sanctions of conscience”. The Bad Man illustration eloquently phrases a question in the minds of the reader: Are Law and Morality Intertwined? The answer lies in the fact that Holmes was greatly sceptical about the coupling of law with morality and firmly believed validity grasps itself to effectiveness of a sanction, and that in essence, it is of paramount importance to ascertain what the court will rule in a case rather than the law itself. Holmes believed that a great amount of legal duty banked on predictions and that legal “obligations” and “duty” should be washed away with cynical acid[1]: to which an observer might very adequately question whether Holmes washed away too much with his scepticism with regard to the machine slot approach in place, in the minds of the judges and lawyers.

Roscoe Pound’s distinction between the “law in books” and “law in action” that, in time, morphed into the idea put forward by Karl Llewellyn, that of the paper rule and real rule, materialized into something of great relevance in present times. From an Indian legal standpoint, one can say Llewellyn’s “real rule” enjoys great relevance, based on the argument that laws can be applied in practice with much greater ambiguity and extremities when compared to its paper rule which in itself, might be harmless. We use the example of the Sedition laws in India to better represent such an argument u/s 124(a) and 295(A) of the IPC, which is dealt in Shreya Singhal v Union of India, where the court very aptly speaks about the doctrine of chilling effect, when the court dealt with the word “annoyance”. It believed it is impossible to ascertain all the possible connotations of one word, which could lead to the chilling effect which is an American Legal term that symbolizes the confusion about the legality of certain acts due to the reading down of a section, which might result in an inhibition or creation of a fear to do otherwise completely legal and legitimate acts.

Holmes went on to critique legal formalism to further cement his idea of Realism as a valid alternative to legal determination.  Firstly, that the law is indeterminate and that its inability to objectively answer questions of the law without indulging in real life experiences, demanding for heightened degree of legal interpretation. Secondly, Jerome Frank’s belief that “law is what the judge had for breakfast” embodies the idea of adjudication not being neutral and that Judges recurrently depend on “hunches” and personal biases to practice their legal duty, guised under the fiction of legal constraint. Realists critiqued the notion that laws were simply being differently “interpreted” and rather believed it was employed simply as a guise for “personal choice”. An example of this from an Indian perspective would be the doctrine of “Res Extra Commercium” and its tryst with Article 19(1)(g) of keeping certain commercial activities in the exclusive hands of the state challenging certain welfare obligations, symbolising convenient interpretation of jurisprudence, “logical asymmetry” and inconsistent judgements.

“In order to know what is, we must know what it has been, and what tends to become.”[2] Holmes, in pursuit of a solution, went on to advocate the amalgamation of law with social science and public policy, as he believed the man of the future is a man of economics. However, Holmes does not provide any concrete mechanism that complements the ideas of public policy that he postulates. Using the example of the Brandeis Brief, in which he formulates the idea that legal theory will move into a dependence on the “social scientific expertise” to inhibit a greater and holistic view on the law as it is driven by social norms and behaviours. However, it can be said that such a compilation never materialized in the present world, because if this realist notion of public policy dictating legal adjudication were true, such an emphasis on legal philosophy and obligation in today’s world would not exist.

In conclusion, Holmes’ idea of the law inspired by Sir Edward Cook’s that the idea obligation in contract law is to get damages, is opposed by H.L.A Hart’s notion that obligation of law is not reliant on sanction, and that realism loses sight of the means of a legal obligation in its perennial suit of consequences. Holmes, in his belief of the compilation of the law with the social sciences failed to establish how such a relationship can develop and how the law can subsume these sciences for more accurate depictions of the law. The realist critique of unpredictability of judges which was conventionally ascribed to common law rather stands true in the Indian context because of the extremities of adjudication that exists in the Indian Supreme Court regarding Public Interest Litigations.

  1. Oliver Wendell Holmes, Jr., The Common Law, 5 (M.D. Howe ed, Little, Brown and Co., Boston, 1963)
  2. Roscoe Pound, Law in Books and Law in Action, 44 American Law Review, 12(1910).
  3. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard Law Review , 457 (1897).
  4. id
  5. Roscoe Pound, “The Scope and Purpose of Sociological Jurisprudence,” 514 Harvard Law Review, XXV (1912)
  6. Karl N. Llewellyn, “Some Realism about Realism: Responding to Dean Pound”, 44 Harvard Law Review 1222 (1931)
  7. Shreya Singhal v. Union of India, (2013) 12 SCC 73 (India).
  8. Jerome Frank, Are Judges Human?, 80 University of Pennsylvania Law Review, 17(1931).
  9. Holmes, Supra Note 1.

 The author is an undergraduate student at Jindal Global Law School, Sonipat.

 


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