Realist School Of Jurisprudence

Theme -The Crusade Against the Myth of Legal Certainty. Sub theme- A Light upon Jerome Frank’s theory of jurisprudence (Realist approach) Authored by: Vishakha Sharma Course: BA.LL.B (V semester) Roll No. : A-29 Abstract : The various schools of jurisprudence talk about different approaches towards understanding and interpreting law. This article focuses upon the realist school of approach as propounded by Holmes, Pound etc. with a focus upon Jerome Frank’s idea, who himself was a practising lawyer that certainty of law is a myth. It talks about the features of realist school, its application in Indian context, and the paradigms where the Judges’ stroke of pen made law. The paper concludes with the suggestion that Indian courts should opt a

Prior to such a decision, the only law available is the opinion of lawyers as to the law relating to that person and to those facts. Such opinion is not actually law but only a guess as to what a court will decide. Realist school: Trend setters of this school Oliver Windell Holmes Jerome Frank Gray Cardozo Roscoe Pound etc. This school of jurisprudence focuses on law not as per legislative statute or enactment but as interpreted by the judicial courts in a decision or pronouncement. Features of this school: Just like it is difficult to come up with certainity of natural sciences, similarly, it is difficult to come up with certainity of law as well. Henceforth, law is uncertain according to this school of jurisprudence. The propounders of this school were against the word “logic” .They have concluded that a judge while deciding a case focuses more on emotion rather than “ logic”. They place greater importance to “behaviourism”. The blazers of this school have criticised the legal terminology as it hides the uncertain character of law. Jerome N. Frank (1889-57): Jerome Frank was basically a practising lawyer since 1912 in

Ltd vs State Of Bihar & Ors on 6 September, 1955 Overruled : Dwarkadas v. Sholapur spinning & weaving co. Held: The court remarked that “ where a constitutional decision affects the lives and property of public and where the court finds that its earlier decision is manifestly wrong and injurious to public interest, it should not hesitate to overrule the same.” Following the same line of approach ,in Keshav mills vs. Income Tax Commissioner the Apex Court observed that Supreme Court has inherent jurisdiction to reconsider and revise its earlier decision if it does not serve the interest the public good. The Golaknath’s case which developed the idea of overruling ,was a major step towards the concept of fair Amendment process and with that Keshwanand Bharati v. State of Kerala case wherein the Court stated that the basic features of the constitution cannot be amended.Justice Ramaswamy quoted a line the Golaknath’s case which depicts the idea of realism in accordance with the law of land-“ The Judge is the living oracle working in dry light of realism pouring life force into dry bones of law to articulate the felt necessities of the time ..." Instances where Judges made law :In Vishaka v. State of Rajasthan case (1997) which was about exploitation of women and the pathetic treatment that they get at