Realist theory of law

Realist School of Law: Merits and Demerits – Jimoh Samuel

Realist School of Law

All schools of law are founded on the substructure of ‘no ideal or widely accepted definition of law.’ This automatically implies that efforts by theorists to give specific definition of law has not survived ‘critique’s test’ because all theories has criticisms that accompany it. Realist school of law is no exception.

Some of its proponents includes Karl Llewellyn, Oliver Wendell Holmes, Jerome Frank, John Chipman, all of who theorize that law is not what was written in books, but there are inarticulate major premise that determines the decision of judges, other than statutes and other written law.

The school introduces the subjectivity of law, denouncing its objectivity. The heart of this philosophy of law is that law goes beyond what is written in book. Put in another way, law is not objective, that is it transcends what is obtainable in statutes book. Of course, it is obvious that several parts of law deals with detailed words of texts as in legislation, case books, etc.

It is also true and important that in practice, legal reasoning depends on other extrinsic factors which are determined by the judge. This justifies the subjectivity of law, according to realist theory, since what is credible or seems right to the judge may not be right to another.

While a layman suppose law is wholly determined by what is written in the book, which however, is true to an extent, judges are influenced by extraneous factors that are indeed inarticulate.

Evidently, the school emphasizes on ‘law in action rather than law in books.’ Going forward, it would mean behind any formal and explicit formulation of judicial reasoning, there’s an implicit attitude of the judge. Mcloed terms this implicit attitude ‘inarticulate major premise.’

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Holmes, justifying the idea of the theory has been quoted to have said ‘the prophecy of what the court will do in fact, and nothing more pretentious is what I mean by law.’ It has also been justified by his favorite quote ‘the life of law is not in logic, but in experience.’ Logic in this sense refers to application of reasoning through which statutes, case books are developed.

The experience of the judge is a subjective one. In the words of Alf Ross, a member of Scandinavian realists ‘‘To invoke justice is the same thing as banging on the table: an emotional expression which turns one’s demand into an absolute postulate’’. Justice, which is the end of law is reduced to an ‘emotional expression.’

The inarticulate major premise that influences decisions making may include ; way of life, upbringing, education, likes and dislikes of the judge, his economic status, social environment, political views, social policy on one hand; the dress, appearance, skin color, race, age, vocabulary of the litigant, the role of witness and the counsel is important to influence the judge

Successfully, the school of thought shifted the to how judges arrives at what’s called law, unfortunately it doesn’t meet up with the standard, as criticisms abound on it, as other schools of law.

Merit of the Realist Theory

The theory puts forward the intelligence that law is what the judge decides upon external influence. Consequently, judges can know the impacts their decision can have on society, and be more interested in making decisions that will push the society forward.

Criticism – Realist Theory of Law

In the case of Nigeria, hierarchy of courts is paramount, which means the lower courts are bound by the decisions of the higher court and cannot be modified except by the higher court that formulate such decision.

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If the judges of supreme court, which is the highest on the hierarchical rank, are wrongly influenced, thereby make wrong laws, the inferior courts have no power within their jurisdiction to change the law. They must apply it in its erroneous form.

The argument is not wholly correct because it places the law-making power in the hand of the judiciary, thereby usurping the role of the legislative arm. Whereas, the primary role of a judge is to interpret law.

The mere fact that decisions of judges can be influenced by extraneous factors. Judges are to be neutral so that judicial decisions are not founded on intimidation from outside sources.

This school of law, one way or the other, agrees to the words of Okunniga, who affirms no one has, will and will never be able to give a monopoly of definition to explain law.

Image Credit: NPR

About Author

Jimoh Samuel Adebayo is a law student at Obafemi Awolowo University. Sam has interest in Academics, Criminal Law, and Human rights law.

Jimoh Samuel

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