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ANALYTICAL SCHOOL AND PURE THEORY OF LAW
o Introductory o Analytical Jurisprudence – Meaning o J. Bentham o Hart's Contribution to Positivistic Jurisprudence o Hart's Dual System of Law o Rule of Recognition-a neo Austinian Sovereign o Internal Aspect of Law o Analytical School-Indian Situation o Pure Theory of Law
Analytical Jurisprudence-Meaning Analytical Jurisprudence (which Sir John Salmond terms 'Systematic Jurisprudence' and C.K. Allen as 'Imperative Jurisprudence' is that approach of method which considers law as a body of actual interrelated principles and not merely a haphazard selection of rule inextricably interwoven with a transcendental Law of Nature. It seeks to define all laws, classify all laws, discover the essential features of every law and get a yardstick by which all laws can be measured. It mainly aims at reconstructing a scientifically valid system by analysing legal concept on the basis of observation and comparison by reducing law into a logical fashion. Such an approach towards law is described Analytical Jurisprudence. C.K. Allen, however, maintains that since jurists of this School consider law as an imperative or command emanating from a politically independent sovereign so the approach of these jurists may be described as Imperative School of Jurisprudence. Analysis of legal rules, concepts and ideas through empirical or scientific method is commonly described Analytical Jurisprudence. Similarly, legal analysis and examination of man-made law- of the law as it is or as it actually exist (posited) is known as Positivism. It is mainly Bentham and Austin, who laid the foundation of analytical positivism in modern legal theory.
J. Bentham Jeremy Bentham is one of the greatest analytical jurists of all time who discarded, rejected and even ridiculed natural law not law at all but merely a so-called law as it was not emanating from the sovereign. It is not Austin but Bentham who is the actual father of English Analytical Jurisprudence. Thus with Bentham came in England the advent of positivism, sovereignty, command duty and sanction-the basic elements of Analytical Jurisprudence which were subsequently borrowed by John Austin. It was Jeremy Bentham who defined law as a command of the sovereign-an idea which he had taken from Hobbes. As a great social and
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legal reformer he wanted to clarify the then existing English law which was shrouded by common law, natural law, equity and' fiction, judge-made law and moral law. In order to reform law he viewed law in terms of ends or purposes i.e. utility. Therefore, all laws were to be tested in terms of man's greatest happiness. In his book 'Limits of Jurisprudence Defined' Bentham enunciated the concept of law in terms of utility emanating from the sovereign. These two concepts that law is the command of the sovereign and law is to promote individual pleasure and decrease pain were masterly analyzed by him much before Austin took both these ideas from Bentham. He adopted from Bentham the concept of positive law in the nature of command and made it the kernel of his jurisprudence. He took the other part also, i.e. the theory of utility. But rejected this concept on the ground that it has nothing to do with positive law. Austin thereby identified the theory of utility with the theory of natural law or law of God and, therefore, rejected it on the ground of its being unscientific. Describing the theory of utility as science of legislation Austin was of the view that it has nothing to do with science of jurisprudence.
Bentham's philosophy of law created two schools-the pure analyst interested in the analysis of positive law and the theological writers interested in the ends or purposes of law which it should serve. It was a disaster for English jurisprudence that Bentham's work was not taken in its entirety. This disaster was created by Austin who viewed law without social purposes or goals in its barren and isolated fashion. Many of the modern jurists consider Austin 'as the father of analytical jurisprudence. But it was much before Austin that Bentham had adopted and refined' the analytical approach in discovering the good laws from those which were inconvenient and unnecessary. It is, therefore, Bentham who should be rightly designated as the real father of analytical jurisprudence.
Hart's Contribution to Positivistic Jurisprudence There is a century gap between legal theories of John Austin and Professor H.L.A. Hart. John Austin's model of positivism conditioned by anti-natural law scientific theories and Jeremy Bentham's legal thinking emanated in his Lectures on Jurisprudence in the Universal of London finally concretized in Province of Jurisprudence Determined. In 1832 H.L.A. Hart, Professor of Jurisprudence in the University of Oxford produced his monumental work The Concept of Law in 1961 highlighting the various difficulties and inadequacies besetting Austin's theory of Jurisprudence. The concept of law is thus a critical evaluation of the development of positivism in law from John Austin to Hart. Indeed Professor Hart has been careful to exclude all the defects from which John Austin's jurisprudence has been suffering and thereby has enunciated a much reformed and socially oriented positivistic theory of law.
Hart's Dual System of Law Hart has been anti-Austinian who has rejected the Austinian model as it is exclusively based on the triology of command, sanction and sovereign which Austin described as 'key to the science of Jurisprudence'. Such pattern, says Hart, is exclusively applicable to criminal pattern of law and is inapplicable to modern legal
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(Determinate Source/Rule/General Command/Sanction/Oblige/Obligation-Duty)
God Sovereign Other Human Being (Divine Law) (President of NHL (i.e. “the count”) University senate) Command General vs Particular Rule Positive Law
Non- Laws within the Province of Jurisprudence (appear to be laws but are not)
- Declaratory Laws
- Laws to Repeal Laws
- Imperfect Laws
Laws that appear not to be Commands, and hence not laws (but are laws)
- Laws granting rights
- Customs
Sovereign: General commands are habitually obeyed by the bulk of the population; not in the habit of obeying any other determinate human person(s)
Hans Kelsen's Introduction to Pure Theory of Law The two editions of Kelsen's book were separated by twenty-six years, and the second edition (1960) was almost twice the length of the first in the detail of its presentation. The original terminology which was introduced in the first edition was already present in many of Kelsen's writings from the 1920s, and were also subject to discussion in the critical press of that decade as well, before it was first published in 1934.
The Pure theory of Law as a Theory of Positive Law On page one, paragraph one of Pure Theory of Law, Kelsen introduces his theory as being a theory of positive law. This theory of positive law is then presented by Kelsen as forming a hierarchy of laws which start from a Basic Norm or Grundnorm where all other norms are related to each other by either being inferior norms, when the one is compared to the other or superior norms. The interaction of these norms is then further subject to representation as a static theory of law (Kelsen.s chapter 4) or as a dynamic theory of law (Kelsen's chapter 5).
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Law and Morals in the Pure Theory of Law Kelsen's strict separation of law and moralswas an integral part of his presentation of the pure theory of law. The application of the law, in order to be protected from moral influence or pilitical influence, needed to be safeguarded by its separation from the sphere of conventional moral influence or political influence. Kelsen did not deny that moral discussion was still possible and even to be encouraged in the sociological domain of intersubjective activity. However, the static operation of the pure theory of law (see section below) was not to be subject to such influences as presented by Kelsen in Chapter Two of the second edition of this book.
Law and Science For Kelsen, in Chapter three of Pure Theory of Law, law was defined as the application of norms to its function for the state. Science was generally the domain of the causal understanding of epistemological data and its primary logical and causally oriented technique was to be distinguished from the normative reasoning as was to be found int eh pure theory of law.
The Static aspect of law As mentioned above, in Chapter Four of his book, Kelsen distinguished the static theory of law from the dynamic theory of law (see discussion below). the stati theory of law represented the law as a hierarchy of laws where the individual laws were related the one to the other as either being inferior, the one to the other, or superior with respect to each other. This hierarchical theory was largely adopted from Adlof Merkl's reserch in the structural aspects of the law while Kelsen was still in Vienna.
Law and State Chapter six of Pure Theory of Law has Kelsen present his celebrated identity theory of law and state. This is Kelsen's highly functional theory of the state and the law as representing the same entity. It is not to be confused with the sociological domain or the cultural domain of inter subjective activity. Nor is it to be confused with the political or even the religious domain of inter subjective interaction among individuals.
State Law and International Law In Chapter Seven, Kelsen presents his disucssion of the interaction of state law and international law as these are especially guided by the understanding of political sovereignty. For Kelsen, the assessment of international law is that it represents a very primitive from of law in distinct contract to the highly developed forms of law as may be found in individual nations and states. As a result, Kelsen emphasizes that international law is often prone to the conduct of was and severe diplomatic measures (blockade, seizure, internment, etc.) as offering the only corrective measures available to it in regulating the conduct between nations. For Kelsen, this is largely inevitable due to the relative primitiveness of international law in contemporary society.
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HISTORICAL SCHOOL
Founding of Historical School in Germany Savingy's Theory of Volksgeist Savigmu-Criticism Savigny and Austin: Comparison English Historical School and Sir Henry Maine Development of Society in Early Period Development of Law Progressive and Non-Progressive Societies Legal fiction Equity Legislation Status to Contract Maine and Savigny-Comparison
Founding of Historical School in Germany In Germany also the historic conception of law was taken up and developed in the latter part of the eighteenth century by Herder in his work 'Ideas on the Philosophy of the History of Human Race'. This heralded the advent in 19th century of German Historical School represented by forerunners of Savigny, Schelling (1775-1854), and Hugo (1768-1844) both of whom rejected a natural theory of law and advocated law in fact, independently of legislation which develops itself as suited to the need and circumstances of each community. The essence of law, according to Hugo, is its observance, acceptance by the people- because its harmony with the paramount sentiments and practices of the people. Law is not a declaratory of moral principles of reason or of human nature. It is declaratory of principle of progress and growth discovered by human experience of administering of justice. As Sir Frederick Pollock puts it, 'The historical method is nothing else than the doctrine of evolution applied to human societies and institutions'. However, of the greatest German jurists of Historical School the name of Friedrich Karl Von Savigny (1770-1861) is remembered conspicuously as the unrivalled and unchallenged founder of Historical Jurisprudence. He was the 'Darwin' of Historical School of Jurisprudence. His last published work appeared only six years before The Origin of Species (1860) and was still alive when Darwin's work appeared. The theory of evolution was thus not new which Savigny had already propounded. Savigny, therefore, ushered the beginning of Historical School-his doctrines regarding law were represented in his famous pamphlet 'On the Vocation of Our Age for Legislation and Jurisprudence 1814'. The 'Vocation' appeared at a critical moment in the history
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of the German States-the fate of Germany was still uncertain being decided at the Vienna Congress of 1815. There was uncertainty in Germany about German State with its legal diversities and the problem of political unification. These and other factors created a chain of reaction in the minds of German legal philosophers resulting in the founding of Historical School. The factors which led to its growth in Germany and elsewhere may be summarized below:
- It was a reaction against the a priori notions of natural law philosophy. The philosvphers hitherto measured all situations and problems by referring them to an idealized picture of social order without studying law in relation to social growth and legal development.
- The natural law thinkers had thought of law which was always the same static and unchangeable. They failed to see the law which had grown and developed from the past.
- The natural law philosophers believed in ideal principles of law as revealed by reason. It did not look to history, traditions, customs, habits and religion as true basis of law.
- The Historical School was a reaction against the French Revolution which itself was a product of natural law philosophy with its gospel of liberty, equality and fraternity of men and nations. In Germany a movement grew up which was romantic, irrational and strongly nationalistic in character and which found its expression in art, literature, history, political theory and law. Nations now started revolting against Nature.
SAVINGY'S THEORY OF VOLKSGEIST
- According to Savigny law was not something which can be made or altered arbitrarily by law makers. The contents of law are essentially determined by the whole past of a people so it cannot be produced ab extra by an action of a wise law giver or by some inventive or master spirited people.
- Law of a nation, therefore, according to Savigny, is not the product of reason or command or will of the Sovereign but the instinctive sense of right possessed by every race or community. In other words, law is a product of 'internal silently operating forces'.
- Law as such is found and not made. It is to be found in popular faith, common convictions, customs, traits, habits, traditions which in course of time grow into legal rules.
- Like the language, the manners and the constitution of anation, all law is exclusively determined by the nation's peculiar character which is otherwise called the Volksgeist or spirit of the people.
- Law cannot be universal or general in character. It is always peculiar, particular, limited-its nature and character depending upon the peculiar, traditions of each people. Law of a nation, likes its language, manner and Constitution is peculiar to a people. Law grows with the growth and strengthens with the strength of the people and finally dies as the nation loses its individuality.
- Savigny, therefore, favoured customary law over legislations. As such he gives more importance to jurist than legislator the former representing the national spirit, i.e., Volksgeist.
- Savigny believed in the unbreakable continuity of law from the past to the present and future also. A law of a nation cannot be different from its past customs and traditions on which the existing and
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while they became more religious in the East. Codes thus provided a definite, secure and positive basis of law against the frauds of the priestly class.
Progressive and Non-Progressive Societies When primitive law has once been embodied in Codes, there is an end to its spontaneous development. Hence onward if there are changes in law they are effected deliberately and from without with a conscious desire for improvement. A new era begins after epoch of Codes. A distinction between stationary and progressive societies begins to make itself felt. According to Sir Henry Maine the difference between stationary and progressive societies is one of the great secrets of history. The stationary condition of the human race is the rule; the progressive an exception.
In progressive societies social necessities and opinions are in advance of the law. The law is stable and societies are progressive. The happiness of people depends on the degree of promptitude with which the gulf is narrowed. The agencies by which law is brought into harmony with society are three legal fictions, equity and legislation-properly in that order.
Legal fiction A legal fiction signifies any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration its letter remaining unchanged its operation being modified. Legal fictions satisfy the desire for improvement but at the same time they do not offend the superstition, fear and dislike of change. At a particular stage of social development they are invaluable expedients of social progress for overcoming the rigidity of law.
Equity Equity belongs to a more advanced stage than fictions. The interference with the law is open and avowed. It is a body of law existing by the side of the original civil law, founded on distinct principles claiming incidentally to supersede the civil law by virtue of a superior sanctity inherent in those principles.
Legislation Legislation is the last instrumentality of social change. It derives its authority from an external body or persons. Its obligatory form is independent of its principles.
Status to Contract According to Maine the movement of progressive societies has been uniform in one respect. In the stationary societies family is the legal unit, the pater familias as its head and other members-wife, children, slaves, cattles dependent on the head of the family and subject to his power. Except the head of family no one has the power to enter into contracts. The relationship between father and other family members are based on
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status or position and not on contract. The son, the female, the slave has only status in the family. In the progressive societies, however; along with legal development there is a marked change towards the growth of individual rights. There is a disintegration of family and dissolution of family dependency and the individual becoming the unit of which civil law takes account. In Western Europe status of slaves was abolished and it was superseded by contractual relation of master and servant. The tutelage of female and children also ceased to exist in relation of husband and parents. As compared to primitive non-progressive societies-the individual in the progressive societies became a free willing and free thinking one with all powers to enter into contract. From this Maine concluded: ........................ the movement of the progressive societies has hitherto been a movement from status to contract”.
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individuals emerged which is described as the sociological jurisprudence.
Among the foremost writers who made an attempt to apply scientific methods to social phenomena was Auguste Comte (17981851). He is known as the founder of sociology as a science. He laid stress upon empirical methods such as observation and experiment for the study of society. It is the task of sociology to provide methods, tools and a basis for a purposeful and realistic appraisal of social phenomena which interact in society. Darwin, Herbert Spencer and Bentham in a way directly or indirectly applied law to man in society. Particularly Bentham's theory of utility, i.e. , the greatest good of the greatest number has been utilised by the sociological jurists for legal reform, social progress and general welfare. It would be useful to dilate upon the contributions made by important jurists towards the growth and development of the Sociological School of Jurisprudence.
Ihering-1818- Rudolf Von Ihering is one of the greatest German jurists who has been described as 'the father of modern sociological jurisprudence'. He rejected the analytical and historical jurisprudence as 'jurisprudence of concepts'. He considers law as an instrument of serving the needs of individuals in society. Therefore, the theory of causal relationship applicable in natural world cannot be applicable to human nature. According to him 'human conduct is determined not by a 'because' but by a 'for' by a purpose to be effected. In substance, therefore, he says, law has to be studied in terms of purposes or interests which law serves.
Social Interest Theory In his work Law as a Means to an End , Ihering came to the conclusion that the dominant motivation in the exercise of human will is notion of purpose. This he calls the law of purpose. According to Ihering human will is primarily directed towards furtherance of individuals purposes. In realization of individual purposes there is bound to be a conflict between social interest and each individual's selfish interests. He, therefore, tries to reconcile the individual interest with that of society. So law is only an instrument for serving the needs of society-its purposes and interests. The State, therefore, must apply methods which promote such social interests which are inherent in every individual. To reconcile the conflicting interests of society vis-a- vis individual, state employs the methods of reward by enabling economic wants to be satisfied and also the methods of coercion. For instance, economic wants of man must be satisfied. Therefore, society in larger interest puts such social controls which may reduce the quantum of profits. This can be done both by means of reward or by coercion which is called law. Law is a coercion organized in a set form by the State. The success of legal process is to achieve a proper balance between social and individual interests. It is thus through the two impulses Coercion and Reward that society compels individuals to sub- ordinate selfish individual interests to social purposes and general interests. The natural impulse of Duty and Love, i.e., the egoistical instincts of sacrifice and service also makes man to subserve social ends. Therefore, law according to Ihering is nothing but a means to an end-an instrument of social control-balancing of individual
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interests with that of society. Regulation through law of human activities the service of general community is its chief raison d'etre
Leon Duguit 1859-1928: Law as a Social Fact The French jurist Leon Duguit carried forward the belief that scientific progress can be accelerated by individual behaviour in order to satisfy common social needs and interests. As to Durkheim division of labour was pre-eminent factor of social cohesion to Duguit it was the establishment of social cohesion as an indisputable fact beyond ideology, beyond religious or metaphysical speculation………..The constant realisation of social fact which is simply inter-dependence of individuals could at last replace ideological quarrels by observable facts.
Like Ihering, Duguit also rejected the prevailing notion of State, Sovereignty, law as a command or as an exercise of free human will and the theory of natural right of man as subjective and unreal concepts based on fictions or hypotheses. According to him the basis of law is the fact of social and natural interdependence of individuals and groups upon each other. As such law is based and dependent on certain social facts or reality which impels men who have common needs, who have different capacities and talents to subserve each other by common exchange of services. This is the fact and not an assumption that the individuals think and act on the full realization of the idea that individual good can be furthered only on the furtherance of community good or collective interest. Individual interest without public good is no interest but an abstraction of subjective satisfaction. In other words, according to Duguit, there is not and cannot be opposition between individual and those of collective interests, that of interest of one with the interests of all. Generally speaking interests of all and each one are complimentary and completely coincide with individual purposes, that making use of the expression of Karl Marx 'The free development of each one is the condition of free development of all'. Therefore, law is independent of State or sovereign, etc. and is based on coincidence of individual and social interests.
Social Solidarity Duguit puts forth in definite and clear terms that law arises of the facts of social existence. Therefore, if man wishes to live and act in society he must act in conformity with the social law of solidarity. Solidarity is not a rule of conduct, it is a fact-the fundamental fact of all human society. In other words solidarity is neither a charity nor fraternity. These are moral duties. It is a fact. It means that in fact men are 'solidary' with one another, that is, they have common needs which they can only satisfy in common, that they have different capabilities and different needs which they can satisfy by exchange of needs and division of labour. This solidarity or mutual interdependence is the product of social reality of social life. As such it is the duty of one and all to conform his conduct according' to the fact of social solidarity. It is a coincidence of purposes and facts-the unhappiness of one affects all, the happiness of one profits all. He says, 'Man must so act that he does nothing which may injure social solidarity upon which he depends, and more positively, he must do all
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atonce opposed to previous approaches of the analytical and philosophical jurists-the latter conceived law as something abstract not concerned with ends of law, etc. For Pound law without its purpose or end would be a mental exercise in abstraction only. Law, therefore, as described by Ihering and Ehrlich should be studied with reference to society-society being the centre and circumference of law and its various purposes. For the sake of convenience and clarity Pound's theory of Sociological Jurisprudence can be studied in the following way:
Law and Social Interests: According to Pound law is not concerned with abstract concepts like rights and duties. It is neither an assertion of individual rights nor fulfillment of individual duties. It is rather concerned with satisfaction of individual or social needs, wants, claims and interests. It is the task of sociological jurists to find out what claims or wants or demands need social recognition and acceptance at a particular place and time. This is to be found out on the basis of social surveys and concrete factual information of just social needs and claims. As to just claims or demands it is an evaluative proposition depending upon values of a society-for such interests can be satisfied without law and through law also.
Law, therefore, has to recognize just interests-individual, public and social and has to evolve a practical line of action within which each type of interests should be allowed to function and satisfied by law. In this respect law has to prescribe limits, determine the scope as well as subject matter of interests, catalogue all the interests according to their primacy and urgency, find out the means for securing interests and to take in view the wider values of society, etc. Thus all the interests are to be so adjusted as it may result in maximum satisfaction. Pound classifies the various interests: (a) Individual Interests : These are claims, demands or desires from the point of view of each individual as such. These are concerned with: (1) Personality : Such interests are· concerned with (a) the physical person, (b) freedom of will, (c) honour and reputation, (d) privacy and (e) belief and opinion. (2) Domestic relations : They are concerned with interests of individual in domestic relationship and that of society in such institutions as family, marriage, divorce. (3) Interest of substance : These include interests of property, freedom of industry and contract, freedom of association, etc. (b) Public interests : These are claims or demands or desires asserted by individuals from the point of view of political life. These are two in number: (1) Interests of State as a juristic person. They include (a) the integrity, freedom action and honour of State's personality (b) claims of politically organised society as acooperation to property acquired and held for corporate purposes. (2) Interests of State as guardian of social interests. (c) Social interests : Social interests are claims or demands or desires involved in social life in civilized society and asserted its title of that life. It is not uncommon to treat them as the claims of the whole social
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group as such. Pound classified the social interests into six groups:
(1) Social interest in general security : These include safety from aggression both internally and externally; general health, peace and order; security of transactions and security of acquisitions protection of property.
(2) Social interest in the security of social interests : These include domestic relations, religious institutions, political institutions and economic institutions.
(3) Social interest in general morals : It is concerned with protection of the moral sentiments of the c9mmlmity. It covers such laws concerning prostitution, drunkenness, gambling, begging, obscene literature, etc.
(4) Social interest in conservation of social resources: For instance, these may include physical resources like utilization and conservation of forests, oil, water and other resources. It also includes protection of human resources such as protection of infants, lunatics, idiots, juvenile delinquents and also of poor and weaker sections of society:
(5) Social interest in general progress: It may be of three types: (a) Economic: free. trade, free competition, freedom and use of property without restriction, (b) Political: It includes free speech, free press, freedom of association and cultural freedom, etc.
(6) Social interest in individual life: Individual self assertion, physical, mental, economic; individual opportunity, physical, cultural, social and economic; individual conditions of life-a minimum wages, etc.
Means to Achieve Ends For Pound the above catalogue of various legally recognized interests of individuals, groups and society interact upon each other. Law, therefore, creates devices, machinery and means to reconcile these conflicting interests. True it can be said that interests can be achieved with or without law. However, according to Pound in a democratic State-it is the task of the lawyers, judges and law-, administrators to weigh each interest in accordance with the needs and values of society and realise each of them through law. Lawyers and judges, therefore, adjust social interests through law to avoid social tension and economic conflict, changes in society should be brought about through law. For the values of a society are not static so the law must recognize new values which press for recognition.
Theory of Justice Pound is more interested in satisfaction of social needs and promotion of social justice than assertion of legal rights. Law, therefore, should not be studied in relation to abstract concept but as an instrument of social
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REALIST SCHOOL
REALIST SCHOOL
Introduction American Realist School: Holmes' view Gray's view Frank's view The Scandinavian Realist School Comparison of Scandinavian and American Realism Basic Tenets of the Realist School
Introduction The Realist approach to law is a part of the sociological approach. That is why it is sometimes called as the left wing of sociological or functional school. It differs from sociological school in that this school neither studies the social effect of law nor it starts with any a priori like balance of interests or social engineering, rather it concentrates on a scientific observation of law in its making and working. There are mainly three reasons for the establishment of the realist· school of law. Firstly, it was established as a reaction against sociological jurists who were emphasizing the social effect of law. Secondly, it was established to ignore the theory of interest as given by Ihering and the theory of Social Engineering as advocated by Pound. Thirdly, this school was established to point out the importance of Courts and importance of the Judges-the human factor in the judges and the lawyers.
There are two trends of the Realist School. One is the American Realist School, another the Scandinavian Realist School. American realism is the product of a pragmatist and behaviourist approach to social institutions; practising lawyers or law teachers have developed it with a characteristic Anglo-American emphasis on the work of courts and judicial behaviour, as a corrective to the philosophy of analytical positivism which dominated Anglo-American jurisprudence in the nineteenth century. They have stressed law in action, law as experience, as against legal conceptionalism. Holmes, Gray and Jereme Frank are the main supporters of the American Realist School. Scandinavian realism is a philosophical critique of the metaphysical foundations of law. They have put forth a philosophical justification. Olivercrona, Lundstedt,
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Ross and Hagerstrom are the main exponents of the Scandinavian Realist School.
American Realist School: Holmes' view Both in his writings and in his long tenure as Judge of the Supreme Courts, Holmes played a fundamental part in bringing about a changed attitude to law. His emphasis on the fact that the life of the law was experience, as well as logic, and his view of law as predictions of what the court will decide stressed the empirical and pragmatic aspect of law. Holmes published a paper in 1897 in which this great judge put forward a novel way of looking at law. If one wishes to know what law is, he said, one should view it through the eyes of a bad man, who is only concerned with what will happen to him if he does certain things. The traditional description of law is that it consists of rules from which deductions are made. He says, "But if we take the view of our friend, the bad man, we shall find that he does not care straws for the action or deduction, but that he does want to know what Massachusetts of English Courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact and nothing more pretentions are what I mean by the Law”.
Gray's view Another important pioneer of American realist School was Gray, who made a distinction between law and sources of law. The former is what the judges decide. Everything else, including statute, are only sources of law until interpreted by a court. He defined 'the law' as follows : “The law of the state or of any organised body of men is composed of the rules which the courts, that is, judicial organs of that body lay down for the determination of legal rights and duties”. He said of statutes that, “the courts put life into the dead words of the statute. Other sources include expert opinion, customs and public 'policy'.
Frank's view In his book titled 'Law and the Modern Mind (1930)' Frank explained his theory of law and jurisprudence. His entire thesis is centered on one point viz. Law is uncertain, certainty of law is a legal myth. To say in other words his main attack was originally directed at the myth of achieving certainty through legal rules. Frank insists that there are two groups of realists, “rule-sceptics” as he calls them, who regard legal uncertainty as residing principally in the “paper” rules of law and who seek to discover uniformities in actual judicial behaviour and “fact skeptics” who think that the unpredictability of court decisions resides primarily in the elusiveness of facts. The former he suggests, make the mistake of concentrating on appellate courts, whereas it is to the activities of trial courts that attention needs most to be directed. To this statement Lloyd remarks, “No doubt there is force in this contention, for it is familiar enough to find that nice points of law often dissolve away before decisions “on the facts”, quite apart from the fact that the majority of cases involve no disputed law at all. Also, the facts may affect the actual decision as to the law, since courts often “wrench” the law in order to make it fit what they conceive to be the merits of a case, not always with adequate regard to the wider implications of their decision. But at the same time it is difficult not to feel that Frank makes an
