Escolar Documentos
Profissional Documentos
Cultura Documentos
Submitted to:
Virendhyam J. Tiwari
(Faculty Company Law)
Submitted by:
Anshika Jain
Roll No. 17
Semester: V
Section-B
B.A.-LL.B. (Hons.)
Raipur (C.G.)
Submitted on: 8th October 2015
DECLARATION
I, Jayanti Chander, have undergone research of the project work titled as a student of
Jurisprudence hereby declare that this Research Project has been prepared by the student for
academic purpose only, and is the outcome of the investigation done by me and also prepared by
myself under the supervision of National Law University, Raipur. The views expressed in the
report are personal to the student and do not reflect the views of any other person, and do not
bind the statute in any manner.
I also declare that this research Paper or any part, thereof has not been or is being submitted
elsewhere for the award of any degree or Diploma. The report is the intellectual property on the
part of student research work, and the same or any part thereof may not be used in any manner
whatsoever in writing.
CERTIFICATE
This is to certify that Ms. Jayanti Chander, Roll Number-72, student of Semester-V of B.A. LL.B
(Hon.), Hidayatullah National Law University, New Raipur(Chhattisgarh) has undergone
research of the project work titled in the partial fulfillment of the subject of Jjurisprudence. Her
Performance in research work is up to the level.
ACKNOWLEDGEMENT
I feel highly elated to work on the because it has significant importance in the current scenario.
I express my deepest regard and gratitude for our Faculty of Jurisprudence. Her consistent
supervision, constant inspiration and invaluable guidance have been of immense help in
understanding and carrying out the importance of the project report.
I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.
I take this opportunity to also thank the University and the Vice Chancellor for providing
TABLE OF CASES
T.N. Godavarman Thirumulpad Vs. UOI & Ors., (2012) 3 SCC 277
TABLE OF CONTENTS
1. INTRODUCTION....7
[1.A] RESEARCH METHODOLOGY..7
[1.A.1] PROBLEM....7
[1.A.2] RATIONALE....7
[1.A.3] OBJECTIVES....8
[1.A.4] HYPOTHESIS...8
[1.A.5] SOURCES OF DATA...8
[1.A.6] REVIEW OF LITERATURE....8
[1.A.7] CHAPTERISATION.8
[1.A.8] CONTRIBUTION..9
2. AMERICAN REALISM..9
[2.A] ROLE OF STATE AS A TRUSTEE10
[2.B] SCOPE AND PURPOSE OF PUBLIC TRUST DOCTRINE...11
3. EVOLUTION OF AMERICAN REALISM IN INDIA12
4. CONTEMPORARY STANDARDS ......14
CHAPTER 1 INTRODUCTION
Law is what the court has decided in respect of any particular set of facts prior to such a
decision, the opinion of lawyers is only a guess as to what the court will decide and this cannot
be treated as law unless the Court so decides by its judicial pronouncement. The judges
decisions are the outcome of his entire life history.1
-
Jerome Frank
The study of jurisprudence started with the Romans. The Latin equivalent of "jurisprudence is
jurisprudentia which means either "knowledge of law" or "skill in law". Paulus, 1 another Roman
jurist, maintained that "the law is not to be deduced from the rule, but the rule from the law". 2
Legal realism is a school of legal philosophy that is generally associated with the culmination of
the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical
legal thought in the United States of America. Realist thinking was introduced to American
jurisprudence by Oliver Wendell Holmes. Holmes gave the first and classic exposition of the
court-focused approach in 1897, sowing the seeds for realism, in a paper called The Path of the
Law.
American Legal Realism is often remembered for its challenge to the Classical legal claim that
orthodox legal institutions provided an autonomous and self-executing system of legal discourse
untainted by politics. The realist school has been divided into two parts:
1. Scandinavian Realism
2. American Realism
Both are hostile to formalism that treats law as a lifeless phenomenon. Both adopt radical
empirical methods that seek to explain law in terms of observable behavior of examining cause
and effect and both are antagonistic towards metaphysics and values.
Realism denounces traditional legal rules and concepts and concentrates more on what the courts
actually do in reaching the final decision in the case. In strict sense, The realist school evaluates
any part of law in terms of its effect. They do not support formal, logical and conceptual
approach to law.
V D MAAJA
[1.A.2] RATIONALE: Everyday witnesses changes in the society which has its impact on the
laid down laws and decision making for the Judges. There needs to be a standard of rationality
to tackle whether the laid down law will serve the ends of Justice or not. There the rationality
of the Judges should decide with the law of the land as checks and balances to those
decisions. Therefore, the discretion of the Judge should guarded by the Constitution for
rational decision making that caters to the societal needs as well.
[1.A.3] OBJECTIVES:
[1.A.4] HYPOTHESIS:
American Realism is the anti-thesis of idealism that focuses on Judge made law to dispense
Justice.
[1.A.4]SOURCES OF DATA: Doctrinal research methodology has been followed with the
extensive use of secondary sources. Primary source has also been referred to understand the
origin of the project topic.
[1.A.5]REVIEW OF LITERATURE: S.V.D. MAHAJANS JURISPRUDENCE & LEGAL
THEORY, EASTERN BOOK COMPANY, (5TH Ed., 2015): The book was referred to
understand the meaning and evolution of American Realism. The book is informative and
explains the theories clearly and in simple language. It can be referred to understand the
basics of any topic.
[1.A.6]CHAPTERISATION: Chapter 1 introduces the project topic and the way the research
was carried on for the project. Chapter 2 explains the evolution of American Realiam, its
theories and relevance. Chapter 3 focuses on the evolution of the approach in India by
relevant case laws. Chapter 4 throws a light on the contemporary standards of the society and
the application and significance of the approach in the prevailing scenario.
[1.A.7]CONTRIBUTION: The project has helped me analyze the significance of law and
legislations in relevance to the society. It has also helped me in understanding the thin line of
differences that needs to be kept in mind while giving a Judgment against the laid down law
or a preset precedent.
Julius Stone
Realism is a combination of the positivist and the sociological approach. It is positivist in the
sense that it undertakes the study of law as it is and sociological, because it expects that law
should function to meet the ends of society. Therefore, realist school is merely a branch of
sociological jurisprudence and a method of scientific and rational approach to law.
Realists dont give any importance to laws enacted by legislature. And they uphold only judgemade law as genuine law. A great role of judges understanding about law, society and also their
psychology affect any judgment given by them. At the same time, in a same case applying same
law two different judges give the different judgments. 3
Realists believe that certainty of law is a myth and its predictability depends upon the set of facts
which are before the court for decision. It presupposes that law is intimately connected with the
society and since the society changes faster than law so there can never be certainty about law.
Lord Lloyd states that American realism is a revolt against formalism, points out that in the,
laissez faire dominance in America in nineteenth century and at the beginning of the twentieth
century was associated with a certain attachment to what has been called "formalism, in
philosophy and the social sciences, marked by a reverence for the role of logic and mathematics
and a priori reasoning as applied to philosophy, economics and jurisprudence. However,
empirical science and technology were increasingly dominating American society and with that
development an intellectual movement arose in favour of treating philosophy and the social
sciences as empirical studies not rooted in abstract formalism that linked them empirically to the
facts of life.
3
http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Rigved.pdf
Llewellyn
The realist movement began in the 19th century in America and gained force during the
administration of President Franklin D. Roosevelt. The realist movement in United States
represents the latest branch of sociological jurisprudence. Which concentrates on the decisions of
law courts. Sometime it is called the left wing of the functional school. This movement named
as realist because this approach studies law, as it is in actual working and its effects. 4 Realism
was not consolidated into a definite, coherent theoretical system; it can at best be described as a
movement or historical phenomenon rather than a school of thought. 5
According to Friedman, realist movement is an attempt to rationalize and modernize the lawboth administration of law and the material for legislative change, by utilizing scientific method
and taking into account the factual realities of social life.
American realists are skeptical about the degree to which rules represent the law. They seek
to investigate how courts actually reach their decisions. Karl Llewellyn observed that the
realists separation of is and ought, is a temporary divorce. The divorce lasts while the
scholars are discovering what courts actually do. The positivist, according to Hart, look to the
http://newindialaw.blogspot.in/2012/11/american-realist-school-of-jurisprudence.html, BE LEGAL BE
INTELLEGENT, AMERICAN REALIST SCHOOL OF JURISPRUDENCE, accessed on 25th September 15.
5
http://newindialaw.blogspot.in/2012/11/american-realist-school-of-jurisprudence.html M Davies
established primary rules and to secondary rules of recognition that designate law making
bodies.
Karl Llewellyn confessed that there is nothing like realist school instead it is a particular
approach of a group of thinkers belonging to the sociological jurisprudence. However, realist
school differs from sociological school as unlike the sociological approach, realists are not
much concerned about the ends of law but their main attention is on a scientific observation
of law and its actual functioning. It is for the reason that some authorities have called realist
school as the left wing of the functional school. Some quarters feel that realist movement in
the United States should not be treated as a new independent school of jurisprudence but only
a new methodology to be adopted by the sociological school.
DIFFERENT THEORIES
a)
In order to see what the law is in reality, he adopted the standpoint of a hypothetical Bad man
facing trial a bad man successfully predicts the actual law than other people. Therefore, the law
should be looked from bad mans perspective according to the Bad Man Theory. On the basis of
this prediction Holmes defined the law as, Prophecies (ability to predict) of what the court will
do in fact and nothing more pretentious.[7]
b)
JUSTICE GRAY:
The law of the State or of any organized body of men is composed of the rules which the courts,
that is, the judicial organs of that body, lay down for the determination of legal rights and
duties.[8]
John Chipman Grays approach was certainly as court-oriented as the realists. For Gray the law
was simply what the court decided. Everything else, including statutes, were simply sources of
law. The law becomes concrete and positive only in the pronouncements of the court; judge
made law is the final and authoritative form of law. Hence, Gray defined law as what the judges
declare.6
c)
According to Llewellyn realism means a movement in thought and work about law. Karl
Llewellyn outlined the principle features of the realist approach. Which are as follows:1.
There has to be a conception of law in flux and of the judicial creation of law.
2.
Society changes faster than law, so there is a constant need to improve the law.
3.
There has to be a temporary separation between is and ought for the purpose of study.
J.C. Gray, The Nature and Sources of Law, Macmillan, Second Edition (1921)
Law is an institution which is necessary in society and which is comprised not only of rules but
also contains an ideology and a body of pervasive and powerful ideals which are largely
unspoken, largely implicit, and which pass unmentioned in the books. Law has jobs to do within
a society. These are[10]:
i.
is the garage-repair work or the going concern of society with its continuous effect upon the
remarking of the order of society.
ii.
trouble, and together with it, the effective reorientation of conduct and expectations in similar
fashion.
iii.
action as being authoritative; which includes all of any constitution and much more.
iv.
Juristic method to use a single slogan to sum up the task of handling the
legal materials and tools and people developed for the other jobs to the end that those materials
and tools and people are kept doing their law-jobs, and doing them better, until they become a
source of revelation of new possibility and achievement.
d)
He has given the Fathers Symbol Theory. The child puts his trust in the power and wisdom of
his father to provide an atmosphere of security. In the adult the counterpart of this feeling is the
trust reposed in the stability and immutability of human institutions. Frank suggested that the
quest for certainty in law is in effect a search for a father-symbol to provide an aura of security,
and although he attributed great prominence to this factor.
Frank observes that a judges decisions are the outcome of his entire life history. His friends, his
family, vocations, schools, religion, all these factors are influential.
In this regard Jerome Frank He offered it only as a partial explanation of what he called the
basic myth, and listed fourteen other explanations as well.[11]
Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty
is inherent in it. Therefore mere technical legal analysis is not enough for understanding as to
how law works.
REALISTS
Rule Skeptics
Fact Skeptics
Kelson, it will be remembered, maintained that it is not possible to derive an ought from an is.
The rule-skeptics avoided that criticism by saying that they were not deriving purposive ought,
but only predictions of judicial behavior analogous to the laws or science.
Avni Nagaria, Justice V.R. Krishna Iyer: Our Heritage, Universal Law Publishing Co., 2011 Edition, An Address by
Justice V.R. Krishna Iyer, p.109
8
http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Rigved.pdf
the primary source of judicial review in India) vests power in the Court to declare a law enacted
by the legislative organs as void if is against the provisions of the Indian Constitution. There are
other constitutional provisions like Article 32, Article 131- 136, Article 143, Article 146 and
Article 226 which on different grounds and in different situations can be used to declare actions
of the State as un-constitutional and void. These provisions empower the SC of India to declare
any State action, whether-legislative, executive or administration in nature as void on the basis of
un-constitutionality.
In Hussainara Khatoon v. State of Bihar[18], the Supreme Court has held that speedy trial
is an essential and integral part of the fundamental right to life and liberty enshrined in
Article 21. In Bihar a number of under trial prisoners were kept in various jails for
several years without trial. The court ordered that all such prisoners whose names were
submitted to the court should be released forthwith. Since speedy trial is being held to be
a fundamental right guaranteed under Article 21 of the Constitution of India. The
Supreme Court considered its constitutional duty to enforce this right of the accused
person.
In Shri Ram Food and Fertilizer case9, the Supreme Court directed the company,
manufacturing hazardous and lethal chemicals and gases posing danger to health and life
of workmen and people living in its neighborhood, to take all necessary safety measures
before reopening the plant.
In Ganga Water Pollution case 10, the petitioner sought the direction from the Supreme
Court restraining the respondents from letting out trade effluents into the river Ganga till
such time they put up necessary treatment plants for treating the trade effluents in order
to arrest the pollution of water in the said river.
In Parmanand Katara v. Union of India 11, the Supreme Court has held that it is a
paramount obligation of every medical (private or government) to give medical aid to
every injured citizen brought for treatment immediately without waiting for procedural
formalities to be completed in order to avoid negligent death.
In M.C. Mehta v. State of Tamil Nadu 12, it has been held that the children cannot be
employed in match factories which are directly connected with the manufacturing process
as it is a hazardous employment within the meaning of Employment of Children Act
1938. There can, however, be employment packing process but it should be done in are
away from the place of manufacture to avoid exposure to accident. Every children must
be insured for a sum of Rs. 15,000/- and premium to be paid by employer as a condition
of service.
Dealing with a case pertaining to water pollution in case of Vellore Citizens Welfare
Forum v. Union of India13, the Supreme Court directed 162 tanneries in Tamil Nadu to be
closed because these were polluting the air and the water around the area where they
were operating and the water had been unworthy for drinking.
10
11
12
13
M.C. Mehta v. Union of India 14, with a view to preserve environment and control
pollution within the vicinity of tourist resorts of Badkhal and Surajkund the court directed
the stoppage of mining activities within two kilometer radius of these two tourist resorts.
In a significant judgment in Vishakha v. State of Rajasthan15, the Supreme Court has laid
down exhaustive guidelines for preventive sexual harassment of working women in place
of their work until any legislation is enacted for this purpose.
The Indian society has, since time immemorial, been conscious of the necessity of protecting
environment and ecology.16 When the Indian courts have applied the public trust doctrine, they
have considered it not only as an international law concept, but one, which is well established in
their national legal system. The doctrine has been explicitly in recent cases. The public trust
doctrine enjoins upon the Government to protect the resources for the enjoyment of the general
public rather than to permit their use for private ownership or commercial purposes.
With the advent of industrialization, globalization and urbanization, technologically advanced
methods are being used to serve the needs of the society. These methods have side effects on the
environment and therefore, these developmental activities are subject to the scrutiny of the
Judiciary. Following activities have widened the spectrum of environmental consciousness and
application of the doctrine:
In the light of the settled principles of environmental justice like polluter pays principles,
precautionary principle, equity and the public trust Doctrine, it is obligatory upon the
states particularly the MoEF to provide protection to the Western Ghats in furtherance to
its constitutional obligations emerging from Article-14 and 21 read with Article-48 and
51(A), (g) of the Constitution of India and ensure that activities prejudicial to the
ecology and environment of the Western Ghats are not permitted to be carried on in that
area.17
14
15
16
Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571.
T.N. Godavarman Thirumulpad Vs. Union of India & Ors., (2012) 3 SCC 277; M.C. Mehta Vs. Kamal Nath &
Ors., (1997) 1 SCC 388; Goa Foundation v. Union of India, MANU/GT/0115/2014.
17
CRITICISM
1.
The realist approach to jurisprudence has evoked criticism from many quarters. The critics
allege that the exponents of realist school have completely overlooked the importance of rules
and legal principles and treated law as an assemblage of unconnected court decisions. Their
perception of law rests upon the subjective fantasies and life experience of the judge who is
deciding the case or dispute. Therefore there cant be certainty and definiteness about the law.
This is indeed overestimating the role of judges in formulation of the laws. Undoubtedly, judges
do contribute to law-making to a certain extent but it cannot be forgotten that their main function
is to interpret the law.
2.
Another criticism so often advanced against realists is that they seem to have totally
neglected that part of law which never comes before the court. Therefore it is erroneous to think
18
BCCI & Ors. v. Prasar Bharati Broadcasting Corporation of India & Ors., 1995 AIR 1236.
that law evolves and develops only through court decisions. In fact a great part of the law
enacted by legislature never comes before the court.
3.
The supporters of realist theory undermine the authority of the precedent and argue that
case law is often made in haste, without regard to wider implications. The courts generally give
decisions on the spot and only rarely take time for consideration. They have to rely on the
evidence and arguments presented to them in court, and do not have access to wider evidence
such as statistical data, economic forecasts, public opinion, survey etc.
4.
Realist school has exaggerated the role of human factor in judicial decisions. It is not
correct to say that judicial pronouncements are the outcome of personality and behavior of the
judges. There are a variety of other factors as well which has to take into consideration while
reaching his decisions.
5.
The realist theory is confined to local judicial setting of United States and has no universal
CONCLUSION
Application of Legal realism in the legal systems has become very significant given the rapid
changing nature of the society. Also, the evolution of law, legal system and organized manner of
operation of legal systems has led to effective decision making and analyzing the loopholes of
the legal system to keep it updated. Therefore, decision making by the Judiciary based on their
rationale and application of existing laws by them has gained immense importance over the time.
Therefore, American Realism holds great value in its application in the contemporary times.
American Legal Realism is often remembered for its challenge to the Classical legal claim that
orthodox legal institutions provided an autonomous and self-executing system of legal discourse
untainted by politics. Unlike Classical legal thought, American Legal Realism worked
vigorously to depict the institution of law without denying or distorting a picture of sharp moral,
political, and social conflict. The most important legacy of American Legal Realism is its
challenge to the Classical legal claim that legal reasoning was separate and autonomous from
moral and political discourse.
SUGGESTIONS
The prevailing scenario is witnessing diverse nature of activities and need for rules to govern the
organized implementation of those activities, American realism approach is evidently visible in
Indian jurisprudence. Following suggestion are posed to strengthen the realist approach and its
utility in the present scenario:
fundamental features so as to avoid wrong use of the power given to the judiciary. State
should implement the environment related conventions and declarations effectively.
BIBLIOGRAPHY
Book Referred
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POSITIVISM
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3154&context=fss_papers
WITH