IntroductionThe following is my assignment on question 1. I will discuss the contribution to jurisprudence made by the American Realist Movement.Main SectionJurisprudenceThe word jurisprudence derives from the Latin term juris prudentia, which means “the study, knowledge, or science of law”. The definition of jurisprudence is commonly referred to “the science or philosophy of law” (Cornell Law School) 1. There are different theories or schools of jurisprudence. Most notably, these include, Natural Law ( Plato, Aristotle, Aquinas) who believe that the laws that are morally wrong, should not be made law and that Natural Law is superior to that of a man-made law. While another prominent school is Legal Positivism (Austin, Kelsen, Hart, Bentham) who looked at law as it is, not as it ought to be. They believe laws are man-made creations and do not have to be moral.
American RealistAnother interesting theory is the American Realist Movement. This movement came to prominence in the 1920’s. As observed by Roscoe Pound, “realism is the accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be or as one feels they ought to be”. American Realist would be considered sceptical of the legal system, they would put aside any ethical or moral beliefs they may have to one side. They give greater prevalence to the judge and lawyers in the courtroom. That the courts decide cases on what they deem fair in light of the facts of a case and not based upon the law.Oliver Wendell Holmes was considered the founding father of this movement. His “insistence that judges, in deciding cases, are not simply deducting legal conclusions with inexorable, machine-like logic, but are influenced by ideas of fairness, public policy, and other personal and conventional values”.
CriticismA lot of criticism of the American Realist comes from their perception that laws rest on the life experience and prejudice of the judge. This clearly overstates the role of the Judge. The Judge has to follow the laws of the land. A huge number of legal cases are straight-forward, which require little or no deviation from the law.
Also, critics point out that the American Realism theory is confined to America and had no universe application in other parts of the world (Manisha Sahu 2012) 2.StudiesHowever, not all legal cases are straightforward. The theory that Judges are not affected by personal belief and stick rigidly to the laws have been debunked. Studies in America have shown that Judges are affected by non-legal aspects of cases.
Judges should base their decisions on the evidence before them and not on information outside the record. Experiments have found that Judges are unable to disregard demands disclosed during a settlement conference, conversation protected by the attorney-client privilege, prior sexual history of an alleged rape victim, prior criminal convictions of a plaintiff, and information the government had promised not to rely upon at sentencing (Wistrich, A.J.
, Guthrie, C., & Rachlinski, J.J. (2005)) 3.Judges were also prone to exhibit stereotypes of Black Americans and were prone to impose harsher penalties on Black defendants than on White defendants.
However, in a cases where the defendant’s race was made explicit White judges did not show bias against Black defendants, albeit Black judges in the experiment were significantly more prone to convict a White defendant than a Black defendant (Rachlinski, J., Johnson,S., Wistrich, A.
, and Guthrie,C, 2009) 4.Also, a paper on predicting judicial decisions of the European Court of Human Rights has lent some support to the basic legal realist intuition according to which judges are primarily responsive to non-legal, rather than to legal, reasons when they decide hard cases. “Results indicate that the ‘facts’ section of a case best predicts the actual court’s decision, which is more consistent with legal realists’ insights about judicial decision-making” (Aletras N, Tsarapatsanis D, Preo?iuc-Pietro D, Lampos V. (2016)) 5.MediaThere are also signs that the American Realist theory has crept into the American TV networks. Most of us would be familiar with the typical American TV courtroom drama, where the importance of the judge’s background and their political or moral beliefs, have a major factor in how the case will be decided.
ConclusionWhile the American Realist theory has had very little application outside America.It has however had a major contribution to jurisprudence in America. It has influenced other schools of jurisprudence and movements. It is closely linked to the sociological theory of law, in that the law should meet the needs of society and should modernise as society changes. It has also contributed to the “Critical Legal Studies Movement” in that it “rebelled against accepted legal theories of the day and urged more attention to the social context of the law” (Cornell Law School, Critical legal studies) 6. There is also the “New Legal Realism” which as the name suggests, draws on from the older legal realism.