JURISPRUDENCE - I

MID-TERM PROJECT

TOPIC - REALIST APPROACH & RULE SCEPTICISM

SUBMITTED TO:
SUBMITTED BY:
DR. SHYAM KRISHAN KAUSHIK
RAHUL SAGAR
FACULTY OF JURISPRUDENCE
1631
ONE THOUSAND SIX HUNDRED
THIRTY ONE

SEMESTER III

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION 2020

(JULY - NOVEMBER 2020)

INTRODUCTION......................................................................................................................3

LEGAL REALISM IN INDIAN CONTEXT............................................................................4

RULE SKEPTICISM.................................................................................................................7

SKEPTICISM IN AMERICAN REALISM..........................................................................7

APPLICATION IN REAL WORLD SCENARIO....................................................................9

VISAKA V STATE OF RAJASTHAN ................................................................................9

CONCLUSION........................................................................................................................11

BIBLIOGRAPHY....................................................................................................................12

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 INTRODUCTION

Jurisprudence- as Laski observes- is the eye of the law, it gives the law its insight into the

environment of which it is the expression. It relates the law to the spirit of the time, and the

richer the jurisprudence of a given system in a given area, the nearer will be the law of that

system to the needs of its time.1

Of all the schools of jurisprudence, the Realist School of Jurisprudence regards law, primarily

as emanating from the judges. Scholars consider Legal Realism to be a movement which

should not be formalised into a separate school of jurisprudence, as it nothing but a branch of

the sociological approach. Legal realism as a movement in thought of law or a concept of

law, rejects the notion of natural law because it does not believe in immutable principles of

justice, it also rejects imperative models of the law because for the realists, the meaning of

legal terms does not come from the legislator but from an observation of law in action.

Realist School of Jurisprudence is often defined as the left wing of the functional school.

Realist School differs from the sociological school, as it is little concerned with the ends of

law. Roscoe Pound has defined realism as: Fidelity to nature, accurate reordering of things

as they are, as contrasted with things as they are imagined to be or wished to be or as one

feels they ought to be.

emerged in the 1970s, can be said to have arisen out of American Realism.

Justice Oliver Wendell Holmes, Jr. often disagreed with scholars who defined law as a
system of reason; or a deduction from principles of ethics; or admitted axioms. As a
forerunner of the Realist School of Jurisprudence, he defined law as- a good reason of a bad
man; he was of the opinion that a bad man is not concerned about axioms or deductions, but
is interested only in knowing what the courts are likely to do in fact. Justice Holmes was of
the view that, the prophecies of what the courts will do in fact, and nothing more pretentious,
is what the law is i.e. the law remains uncertain until the court’s decision, for him the life of
1
See: 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

3
law has not being logic but experience.Holmes definition of law and the scope of
jurisprudence led to future developments in constructing American Realism which focused

attention on empirical factors underlying legal system.

LEGAL REALISM IN INDIAN CONTEXT

Positivism regards law as the expression of the will of the State through the medium of the
legislature. Theories of legal realism too, like positivism, look on law as the expression of the
will of the State, but they see this through the medium of the courts. Like Austin, the realists
look on law as the command of the sovereign, but there sovereign is not Parliament but the
judges; for the realists the sovereign is the court.2

The law during the British colonial rule in India was coercive and counter-productive to

social needs of the Indian people. In strict Austinian sense sanctions were imposed on Indians

in the name of “justice is according to law”.3The British residents in India enjoyed many

exemptions and special privileges under the then existing laws. Thus there was one law for

the ruler and other for the ruled.

With the wave of nationalism and awakening of intellectuals, demand for civil liberty and

basic human rights were persistently made but the same was given no recognition,

suppression, oppression & exploitation of the people continued unabated under the British

Colonial Rule. The lawyers and judges interpreted and applied law mechanically without

considering the felt needs or necessities of the people. There was rigid adherence to the

Doctrine of Precedent.

With the end of the British rule in India, the era of Indian Constitutionalism began with the

constitution of the Constituent Assembly, headed by Dr. Ambedkar to frame the fundamental

law of the land for India. In the Constituent Assembly, during the constituent assembly
debates, Dr. Ambedkar had repeatedly warned that British authority having ended in India,

we could no longer plead the alibi of foreign rule for future failures.4
2
See: P.J. Fitzgerald (Ed.), Salmond on Jurisprudence, Universal Law Publishing Co. Pvt. Ltd., 12th Edition,
(1966), p.35
3
By ‘Austinian sense’, we mean the basic premise of legal positivism which says: Where there is State; there is
no anarchy. State is the necessary evil.
4
Justice V.R. Krishna Iyer, The Indian Law: Dynamic Dimensions of the Abstract, Universal Law Publishing

4
With the Constitution of India coming into force on 26th January, 1950, a separate chapter on

Fundamental rights including individual rights and freedoms and a chapter on Directive

Principles on State Policy comprising social rights was incorporated.5

Since the initial years in the post-Independent India, Constitution of India has been viewed as

Grundnorm in the Kelsonite sense because all statutes and enactments have drawn their

validity from Constitution of India and the validity of Constitution lies in the whole hearted

acceptance of the same by the Indian community without any exception.6

It is pertinent to note that the post-independent Indian positivism differs from Austinian

positivism in the sense that the former seeks to establish harmonious relationship between is

and ought. This can be seen in the harmonious construction adopted by the Supreme Court in

deciding cases involving conflict between fundamental rights and directive principles of state

policy where we find a fusion of justice and morality.

In some cases the SC has adopted a rigid positivistic approach. In the case of Re Kerala
Education Bill the Apex Court declined to look beyond the letter of the fundamental rights
and did not think it necessary to consider sociological imperatives which impelled the
legislature to pass such a law.19 Similarly, in Tilkayat Shri Govindlalji Maharaja v. State of
Rajasthan, the court ruled that the farman of a ruler is law by which the subjects are bound
legally without exception . In the Habeas Corpus Case7 , in which fundamental rights during
emergency were suspended by the State and the Apex Court upheld the arbitrary powers of
the State during emergency and disregarded the imperatives of social justice in the Preamble,
Fundamental Rights and Directive Principles of State Policy, influence of Austinian
Positivism can be seen. But this influence of Austinian Positivism is now receding gradually
and law is now being seen as an instrument of social change for the welfare of society in
India.

Co., Chapter 2: Law in India- A Silver Jubilee Critique of a Story without Plot, p.5
5
Part III of the Constitution of India relates to the Fundamental Rights and Part IV embodies the Directive
Principles of State Policy.
6
See: David Washbrook, Law, State and Agrarian Society in Colonial India, Modern Asian Studies 15(3)
(1981),
7
A.D.M. Jabalpur v. Shivkant Shukla [AIR 1976 SC 1207]

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The philosophy enshrined in the preamble of the Constitution of India and the chapters on
fundamental rights, directive principles, fundamental duties, provisions relating to the powers
and functions of judiciary and amendment of the Constitution amply demonstrate that the
entire focus of post independence Indian jurisprudence is on welfare of the Indian masses and
making law responsive to the social needs.

There is an increasing trend of judicial activism and public interest litigation that can be
witnessed in India lately. The developing trends as to and in regards to public interest
litigation has opened new vistas for interpreting law in the context of social settings. Law has
been used as a tool of social transformation for creating a new social order with primacy to
social justice. In Indira Sawhney v. UOI, Justice P.B. Sawant observed: The Constitution of
India being essentially a political document has to be interpreted to meet the felt necessities
of time.8

There are many welfare legislations enacted post-independence and from time to time it has
been asserted by the SC that in case of social welfare legislations, it is the facts of a particular
case that form the law. Thus, the realist school of jurisprudence as the left wing of the
functional school has clearly found its place in India post-independence.

Supreme Court is seen as the custodian of the Constitution of India, although Judiciary is
considered as the weakest organ of the State. For democracy to prevail and to remain wedded
with the rule of law, it is necessary that Judges as wife of Caesar remain above suspicion; for
as it was observed in the case of Krishna Swamy v. UOI 9 that, the Judge is the living oracle
working in the dry light of realism pouring life or force into the dry bones of law to articulate
the felt necessities of the time. Hence what is needed as of necessity is healthy judicial
accountability. Also, in the wake of Judicial Activism in India, incidents have been witnessed
whereby the line of difference as between judicial activism and judicial over-reach or judicial
adventurism is blurring which is not a very healthy sign.

8
AIR 1993 SC 1407
9
AIR 1993 SC 1407

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 RULE SKEPTICISM

SKEPTICISM IN AMERICAN REALISM

American realists claim that the law in real life is very different from the law stated in law
books. The real law depends on how appellate courts interpret the written words and how trial
courts determine the facts in particular case. This is uncertainty at both ends. 10Judges do
follow rules, but the rules they follow are often not the ones found in standard legal
sources.11According to realists the law should be founded by using prevailing legal literature
and established positive law. The law persons and layman should anticipate the law by the
enforced positive law and should seek actual substantial law and its practical implementation
in the society.

The life of law is logic as well as experience. The real nature of the law cannot be explained
by formal deductive logic.12Judges make their decisions based on their own sense of what is
right. In order to see what the law is in reality, he adopted the standpoint of a hypothetical
‘Bad man’ facing trial.Therefore Holms reviews law as a set of consequances includes
scintific methodology. If the subject can predict the substantial outcome of the law, the law
becoms a good law. The paper rules are not amount as law, but the the judge has a
descreesion to decide penumbral area which has a light of a statute or prior judicial ruling, in
light of stare desicis, rules of interpretation to achive justice. But the extra legal facters also
plays a vital role in adjudicating leading to Judicial Hunch.18Hence, the outcome of the
verdict becomes defficult to predict. It challanges the legal policy of the country and creats
uncertainty in the legal system.

While adjudicating, realists tend to skeptisize the existing rules and forcomming facts of the
cases seperatly with the scope of leagal policy. Oliver wendle Holms observes this process as
scientific foundation of humanitarian conflict resolution. Evaluating the competitive face of
the legal policies, its gravity and depth of the roots of the policies among the society, diverts

10
Suri Ratnapala, Jurisprudence (1edn, Cambridge University Press 2009) 93.
11
H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as internalized guides or bases
for criticism, H.L.A. HART, THE CONCEPT OF LAW 137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed.
1994).
12
Rigveda Dattatraya Amonkar, POSITIVISM WITH REFERENCE TO AMERICAN REALISM (GR KARE
COLLEGE OF LAW 2000) 6.

7
the legal uncertinty to promoting justice. Futher, Holms belived if the judge had a discression
to select and prioritize values, that will enlighten the whole legal study by the judge made
law. This test is empirical and will promote adopting judicial process into a limited social
study for the sake of justice.13

RULE SKEPTICISM

The interpretation of the judicial process advanced by the legal realists is accurately
described by the phrase "rule-skepticism."Llewellyn observes, orthodox doctrine of legal
certainty consist two major theories.One is the attempt to account for or explain legal
certainty in the sense of uniformity among, and predictability of, judicial decisions.The main
reason for existence is the application of pre-established rules to the facts of concrete
cases.Judicial decisions will be uniform and therefore predictable because different judges
apply the same rule to similar sets of facts. “Expedites the work of the Courts in preventing
the constant reconsideration of settled questions …. enables lawyers to advise their clients
with a reasonable degree of certainty and safety . . . insures individuals that, in so far as they
act on authoritative rules of conduct, their contract and other rights will be protected in the
courts … and, finally …makes for equality of treatment of all men before the law and lends
stability to the judicial arm of government.”

But rule skepticism arises when the judiciary could not cover the whole consequential
circumstances and social changes.The very nature of the law creates uncertainty of the law
and the discretion to throughout using legal theories, techniques and language opens the
gateway to create an skepticism of the prevailing rules.That established rules have not been,
in most cases, the decisive factors determining judicial decisions.Rule skepticism caused by
five factors as Wilfred observes. Using multiple and conflicting techniques, logical in nature
of the law, ambiguous character of the legal language, rapidity and pervasiveness of social
and economic change, uniqueness of the facts are amount to create rule skepticism. "Out of
the numerous competing theories, doctrines, formulas, and rules at hand in every case," the
judge "can always find those that fully justify the policies which seem to him dominant."14

13
D’Amato Anthony, 'The Limits of Legal Realism' [1977-1978] 87(2) Yale Law Journal 468.
14
Green, Recent Steps in Law Administration, 14 J. AM. Jun. Soc'Y (1930) 113, 115.

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 APPLICATION IN REAL WORLD SCENARIO

VISAKA V STATE OF RAJASTHAN 15

Facts

This litigation resulted from a brutal gang rape of a publicly employed social worker in a
village in Rajasthan during the course of her employment. The petitioners bringing the action
were various social activists and non-governmental organizations. The primary basis of
bringing such an action to the Supreme Court in India was to find suitable methods for the
realization of the true concept of “gender equality” in the workplace for women, in turn, the
prevention of sexual harassment of women. Under Article 32 of the Indian Constitution, an
action was filed in order to establish the enforcement of the fundamental rights relating to the
women in the workplace.

ANALYSIS

The rape victim took her case to a trial court in Jaipur. However, the court acquitted all five
men. In dismissing the case, judges found it highly improbable that an uncle and his nephews
would rape another woman together. Accused in the rape were acquitted on the basis that
“upper caste men, including a Brahmin, would not rape a woman of a lower caste.” This
ideally depicts the rule skepticism in American legal realism as the judiciary can be
influenced by the social, cultural, economic educational and so many subdivisions of the
society so like and the conscience of the judge and his tendency and believes vitally affects to
the judicial ruling. Rule skepticisms argue that the rule may become more uncertain is in their
application. Even the section 376 of the Indian penal code constitutes rape as a crime; the
judicial hunch prevented the victim to get justice for her suffering. Realism may remain a
valuable corrective to the view that even most appellate cases have a legally right answer, but
not as a claim that undermines the routine determinacy of law.

Therefore, several human rights activist’s groups collectively litigating under Article 32 of
the Indian Constitution in order to establish the enforcement of the fundamental rights
relating to the women in the workplace. The Court analyzed the case through the lens of
gender equality, recognizing sexual harassment in the workplace as a “social problem of
considerable magnitude”58 and discriminatory form of violence against women. Rapidity and
pervasiveness of social and economic change amount to create rule skepticism in American
realism context. Therefore, using the capacity of creating law, the judiciary incorporated
15
(1997) 6 SCC 24.

9
Article 14, 15, 19(1) (g), and 21 collectively to safeguard women’s right to have a safe
workplace.

“India’s international human rights agreements were important to achieving this purpose –
especially in the absence of domestic norms to address the issue concerned.” 16 The Court
referred to India’s ratification of the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), which has prohibits discrimination in the
workplace and outlines specific state obligations to end it. Especially the Article 11(1) (a,
f),Article 24, and General Recommendation No. 19 taking an important place the elimination
of violence against women.

Rule skepticism creates by the existence and use of multiple and conflicting techniques for
the determination of "the rule of a case." The traditional assumption precedents have a rule
which provides binding authority for future decisions cannot be reconciled with the actual
practices of courts.71In order to be able to forecast judicial behavior, it is necessary to know
why judges picked one interpretation rather than another. In this case the judge hunting the
argument that the “Right to life means life with dignity.”

16
Visaka v State of Rajasthan (1997) 6 SCC 24, 27.

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 CONCLUSION

Professor Edwin Patterson remarks realist movement "was a revolt against the prevailing
belief that judicial decisions resulted inexorably from the logical application of the law to the
facts."17Professor Llewellyn states "what realism was, and is, is a method, nothing more, and
the method is to take accepted doctrine, and check its words against its results…. to square
wholly with all the results, is to attempt another fresh look from some other
angles…”Objectives and functions of the Judiciary include ensuring that all persons are able
to live securely under the Rule of Law, to promote, within the proper limits of the judicial
function, the observance and the attainment of human rights; and to administer the law
impartially among persons and between persons and the State.

Law is what the court has decided in respect of any particular set of facts prior to such a
decision. Law is a mean to social ends; and every part of it has constantly to be examined for
its purpose and effects, and to be judged in the light of both and their relation to each other.
American realists claim that the law in real life is very different from the law stated in law
books. The life of law is logic as well as experience. But the extra legal facters divert the
adjudicating leading to Judicial Hunch. This creates sometims unnecessary issues to come out
and create fact skepticism.

Even the American realisits had dived as Fact Skepticism under Jeram Frank and Rule
Septicism under Llewlleyn both of these concepts are underlining by a common thread.
Therefore the open texture to interpretation to acquire justice is a positive fearture in
American Realism, but if it allowes judges to act arbitrarily, that definitly create the legal
systen an anarchy. The procedural law should be transparent and formalized and lemitations
should be introduced to judges to use their discresion. Then the fact skepticism can be
mitigated and the rule skepticism in some senses should prevail as the Society changes faster
than law and so there is a constant need to examine how law meets contemporary social
problems. The discretion only should be granted to garantee justice and equity among the
society to deter arbitrarily actions of judges and a set of guildlines should be set to the judges
for limit misuse of the discretion.

17
Wacks Raymond , 'Judges and Injustice' [1984] 101 South African Law Journal 266

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 BIBLIOGRAPHY

Articles & Journals

 See: 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
 See: P.J. Fitzgerald (Ed.), Salmond on Jurisprudence, Universal Law Publishing Co.
Pvt. Ltd., 12th Edition,
 (1966), p.35

 By ‘Austinian sense’, we mean the basic premise of legal positivism which says:
Where there is State; there is
 no anarchy. State is the necessary evil.
 Justice V.R. Krishna Iyer, The Indian Law: Dynamic Dimensions of the Abstract,
Universal Law Publishing
 Co., Chapter 2: Law in India- A Silver Jubilee Critique of a Story without Plot, p.5

 Part III of the Constitution of India relates to the Fundamental Rights and Part IV
embodies the Directive
 Principles of State Policy.
 See: David Washbrook, Law, State and Agrarian Society in Colonial India, Modern
Asian Studies 15(3) (1981),

 A.D.M. Jabalpur v. Shivkant Shukla [AIR 1976 SC 1207]

 H.L.A. Hart accused the Realists of seeing rules solely as predictions and not as
internalized guides or bases for criticism, H.L.A. HART, THE CONCEPT OF LAW
137-38 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).

12
 Rigveda Dattatraya Amonkar, POSITIVISM WITH REFERENCE TO
AMERICAN REALISM (GR KARE COLLEGE OF LAW 2000) 6.
 D’Amato Anthony, 'The Limits of Legal Realism' [1977-1978] 87(2) Yale Law
Journal 468.
 Green, Recent Steps in Law Administration, 14 J. AM. Jun. Soc'Y (1930) 113, 115.
 (1997) 6 SCC 24.
 Visaka v State of Rajasthan (1997) 6 SCC 24, 27.
 Wacks Raymond , 'Judges and Injustice' [1984] 101 South African Law Journal 266

13