Q. Write a short note on 'Realist school of Jurisprudence'. [2018 - 10 marks]
Realist School of Jurisprudence
Realist school of jurisprudence is more concerned with the scientific observation of lawmaking and its functioning, rather than the ends of law. It combines Analytical Positivism and sociological ideologies.
According to the Realist school of jurisprudence
(i) Law is defined in terms of judicial decisions, not as a set of rules.
(ii) Law originates from judges, so the law is determined by what the courts do, not what they say.
American Realism
American Realism combines the influences of both the Analytical School and the Sociological School. It focuses on the decisions made by judges in court and the impact of judge-made laws on society.
Justice Oliver Holmes
Justice Oliver Holms is considered to be the founding father of Realist School of Jurisprudence. He was a renowned Realist and former judge of the American Supreme Court.
He proposed the “Bad Man Theory,” which suggests that only the “bad man” can predict the actual law accurately. According to Holmes, a judge’s concern is to deliver justice in the case before them, and if that requires a creative interpretation of existing rules, they should resort to it.
Justice Holmes believed that judges and lawyers are well acquainted with the historical, social, and economic aspects of law.
He favored a pragmatic approach to law, where judges and lawyers interpret the law as it is, without considering “what it ought to be.”
No comments:
Post a Comment