Jurisprudence Contribution

Sandra Anderson

Student No.: 39575

Diploma in Law

Discuss the contribution to jurisprudence made by the American Realist Movement.

Jurisprudence is defined as the theory and philosophy of law, the relationship between the law and society. Historically, there have been varying views of what the law is and how the law should be considered and enacted.

In the early Twentieth Century, there was a significant move against the dominant rule of logic or “formalism” applied to philosophy,economics and jurisprudence. The American Realist school of jurisprudence was pioneered by Mr Justice Oliver Wendell Holmes. He played a fundamental role in changing the aspect of the law through his writing, and tenure as Justice of the American Supreme

These judgement are then molded to fit a prescribed legal rule or reason.

In contast to Natural Law jurisprudence,where law is fundamentally linked to morality and ethics, the realist school viewed law and morality as distinctly separate,in so far as the business and operation of the law was concerned. In The Path of the Law, Justice Holmes introduces the “bad man” theory. He expresses the realist view of the relationship between morality and the law. The bad man 's motivation to know the law is solely from the vista of how such knowledge will assist him in predicting how the courts will react. He can then measure to some extent, the consequence of his actions. The “good man” he asserts, will look to a moral compass or conscience to measure his

The Realist is not concerned with the abstract theory of what the law should or ought to be. The decision of a court is the law. This explains the efforts that American laywers expend in researching the judge 's political affiliations and social class, as well as previous judgements.(IPA Manual)

The progressively minded in the American legal system, lawyers in particular accepted the necessity of a fresh, less sovereign based jurisprudential approach. Justice Holmes advocated the link between the social sciences and the law. This was reflected in his dissenting judgements in the Lochner and Abrahms cases, proposing a more rational and scientific approach to the application of individual constituional rights to the actual needs of a modern society.(Lloyds Jurisprudence)

The legacy of Justice Holmes is still very much alive in the modern day American legal system, as articulated by Justice Richard Posner in a 2015 New York Times article. He reiterates the realists view of a more flexible approach to judicial decison making, while the opposing formalist view upholds the doctrine of stare decisis and applying the legislative process, in all