Gaurav Vardhan, Delhi Metropolitan Education (GGSIPU), Noida
ABSTRACT
What is law and legal theory is one of the majorly asked questions in jurisprudence, and under this context where do we place American realism (legal realism) and Scandinavian Realism is mostly debated, however there are various other questions that also arise like whether these realists have contributed to the development of legal theory or not and whether or not legal realism amounts to legal theory. But at this juncture to begin with let’s begin with the simple question what is law? We have the legal formalist very categorically pointing out that law is nothing but logic, logic to the extent that it’s to the complete precision. If you are given a complete set of facts and if you apply the given set of law or rules it will give you a simple clear definite conclusion either in the negative or in the positive, but then is it so? That is one of the questions that legal realist is trying or attempting to answer. Along with this maybe we also need to consider the point of time when legal realism originated, that is later 1890s and at that point of time we have to appreciate that especially in the Unites States of America where common law system is being followed primarily the law as such is believed to be a judge made law. Relying more on the doctrine of precedent and whatever the decision in the past, will have the binding effect to the judges, and the courts in future. Given that context under doctrine of precedent and its importance and significance in common law countries we should be able to appreciate as to why legal realist could have felt that realism is to be clearly explained and they need to look at what formalist have said is fine or not fine. The realists are always of the opinion that once you think of law as a mechanism or what law is it is not necessarily just logic but it is an experience of individuals. Hence it differs from person to person. The law when it is applied to given set of facts may not yield a very clear result as contemplated by the formalist especially if you think law to be without having any influence of policy or such other aspects and irrespective of who the judge is, “the legal realist pointed out that it is not the case.”
