Ishika Sareen, Amity Law School, Noida
ABSTRACT
The realist approach is a modern approach in the field of jurisprudence. It was originated from the United States in 1920s and 1930s. The theory is based on the notion that “Law is what the psychology of the court determines” or “Law is what the judges decide”. This approach emphasizes on the uncertainty of law and role played by the Judges. Some of the jurist refuses to accept realism as a separate school of jurisprudence and hold it as a branch of the sociological school. Realist movement is considered a part of sociological approach and it is sometimes called the “left wing of the functional school”. The movement is known as “realist” as it studies law in a real form and rejects the traditional terminology of law. American realism is a combination of analytical positivists and sociological approaches. The American realism studies the law “as it is” and not “as it ought to be”. They seek to interpret law by taking into consideration the sociological factors.
The study of realistic approach is believed to be helpful for lawyers to predict judgments and prepare their arguments accordingly. Since American Realism is all about court scepticism, the realists argue that the Judge should not restrict to strict rules of interpretation but include their subjective understanding of the issue while giving judgement.
Keywords: American Realism, Judges, Sociological Approach, Uncertainty & Legal Terminology
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