Realists School of Jurisprudence
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Detail Summery about Realists School of Jurisprudence, Five Essential Characteristics of Realists School of Jurisprudence, What is the nature of the law?, What makes law obligatory?, What is the source of law?, Realists School.
Typology: Lecture notes
2010/2011
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Realists School of Jurisprudence
Five Essential Characteristics of Realists
School of Jurisprudence:
1. What is the element which is called law?
2. What is the nature of the law?
3. What makes law obligatory?
4. What is the source of law?
5. What are their philosophical views?
Realists School:
6. They impress upon judge made law.
7. Authority behind law, is force though it may
be in a different form.
8. Law in Books, and law in Practice is different.
9. The source of law is ‘Judicial Precedent’.
Common approach of the Realists:
The theories of the Realists cover a very wide range of jurisprudential speculation and there are denials of their constituting a unified school of thought. Nevertheless, their approach to the study of law has a common basis.
Llewellyn :
(d) An acceptance of the necessity for divorcing - if only temporarily - “is” and “ought” for purposes of legal study. (“After the purely scientific problem has been solved. The hour of ideals and value judgments occurs.”) (e) A distrust of traditional concepts and legal rules as a description of what the Courts are doing. (f) A refusal to emphasis the significance of prescriptive rules in producing decisions of the Courts.
Llewellyn :
(g) A stress on the importance of grouping cases into very narrow categories. (h) A stress on evaluation of the law in terms of its impact and effects on society. (i) A belief in the significance of what can be achieved by a sustained, planned attack on legal problems.
The Vital Nature of Objectivity in Investigation: Fundamental to the Realists School is the belief in the necessity of objective methods of investigation. (a) Oliphant: Comments that the jurist needs “some of the humility of the experimental physicist or chemist who wastes no time in worrying about the absence of ultimate and abstract rational structures”. (b) Llewellyn: Comments that, although ideals are valuable, “once a problem is set, every effort must be bent on keeping observation uncontaminated by other value judgements that the desirability of finding out, of being objective and accurate…”