This article is written by Vividh Jain, a student of the Institute of Law, Nirma University. In this article, the author challenges two broad views on the relationship between the so-called ‘legal realism’ and ‘legal positivism’ theories of jurisprudence. 


By realistic theories of law, I mean theories that: (1) define what law is and how it works in human cultures without sentimental or moralizing delusions (descriptive adequacy takes precedence over moralizing sermons); (2) accept that law is rarely sufficient to justify how courts adjudicate all proceedings before them; and (3) compensate for justice and adjudication within the limits of the statute. By ‘legal positivism,’ I mean the interpretation of the essence of the law that H.L.A. Hart formulated most strongly in 1961, and that Joseph Raz evolved further in the 1970s and 1980s, pursuant to which (1) where there is a legal structure, there is a ‘rule of recognition’ which defines the conditions by which norms are true law; and (2) a rule of law is nothing more than a complicated delusion. This ensures rules and regulatory frameworks are essentially based on officials’ traditional procedures.

Legal realism

Legal realism is a naturalist philosophy to law. It is of the perspective that jurisprudence should imitate the natural science methodologies, that is, relying on empirical evidence. Assumptions must be put to the test by global findings. Legal realists conclude that legal science can analyze law exclusively through natural science’s value-free tools, rather than by metaphysical inquiry into the essence and purpose of the law, which is different and distinct from the law. Legal realism, in fact, states that the law can not be isolated from its implementation, and cannot be easily interpreted. This illustrates the importance of recognizing the considerations present in judicial decision-making by identifying the essence of law in fields such as legal decisions issued by judges and their deference or rejection to the previous precedent and the doctrine to final judgment.

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Legal realism is characterized as a type of jurisprudence by its emphasis on the law as it currently appears in reality, rather than the way it works in the books. To this end, it addressed mainly the conduct of the judges and the conditions that behaviour affect judicial decision-making processes. As Karl Llewellyn states, “Judges stand behind judgements; judges are men; they have human histories as men.” Therefore, the law did not reside in an abstract domain with universal laws or values, but rather inseparable from human behaviour and from the ability with judges to decide the law. To understand legal actors’ decisions and actions, legal realists turned to the ideas of the social sciences to understand the human relationships and behaviour that culminated in a given legal result. 

The moral realists are contrary to the principles of natural law. Legal realists argue that these cultures are historical and/or natural concepts and should be addressed by a variety of psychological and sociocultural hypotheses, perceiving legal concepts as determined by human behaviour, which should be evaluated empirically, instead of by theoretical assumptions about the law. Legal realism is therefore at odds with most versions of legal positivism. Legal realism was largely a response to late 19th and early 20th-century legal formalism, which became the prevailing style through most of the early 20th century. It succeeded in its negative optimism to put suspicion on formalistic expectations that judges actually do as they meant, such that it is always claimed that ‘we are just realists now.’ However, realism struggled in its positive aspiration to find a reliable way to foresee how judges will act than depending on the judges’ explanations. 

Criticism on Realist theory

The Realist theory had witnessed its heyday from the 1920s to the 1940s. Legal realism was completely replaced in the 1950s by the movement of legal processes, which considered law as a process of “reasoned elaboration” and asserted that appeals to “legislative purpose” and some other well-established legal standards and norms can provide an accurate response to the most-awaited legal questions. British law thinker HLA Hart, in his 1961 book The Concept of Law,  began with what other academics viewed as a “decisive blow” to legal rationality, challenging the statistical philosophy of law that OW Holmes has taken on from other realists. Hart points out that if a statute is simply a predictor about what courts are about to do, a judge who is evaluating the legal facts of a dispute before him is actually thinking, “Why am I supposed to resolve this matter?” 

As Hart explains in his theory, that entirely ignores the idea that judges use legislations/laws to direct their rulings, and not as evidence to determine their final judgments. Many critics have argued that the realists overstated the extent to which statute is “riddled” with gaps, ambiguities, and so on. The fact that most legal issues have simple, clear-cut responses that no lawyer or judge would dispute is difficult to reconcile with the bold arguments of the realists of omnipresent legal “indeterminacy.” Many writers, including Ronald Dworkin and Lon Fuller, disappointed legal realists for their harsh effort to distinguish law and morality. 

Importance of Realist theory and its effect

While certain elements of legal realism are still viewed as simplistic or obsolete, most legal scholars will accept that the realists have been fruitful in their core ambition of rejecting “formalistic” or “mechanical” legal ideas and legal logic. Today it is commonly recognised that law is not and can not be an accurate science and that it is important to identify what judges actually do when deciding cases, not just what they say they do. As current discussions on judicial independence and judicial discipline demonstrate, legal experts tend to argue on whether, if ever, it is appropriate for judges to “create law,” rather than simply “execute” or “apply” established legislation. But none will argue with the central argument of the realists that judges (for better or for worse) are always heavily motivated by their political views, moral interests, human attitudes, and other extra-legal considerations.

Legal positivism

Legal positivism is a philosophy of thinking for theoretical jurisprudence founded during the 18th and 19th centuries primarily by judicial theorists, such as Jeremy Bentham and John Austin. Although Bentham and Austin formulated the philosophy of legal positivism, empiricism offered the theoretical basis behind these innovations. The positivist argument doesn’t suggest the principles of law are unintelligible, unimportant, or incidental to the legal theory. That means they’re not deciding if there are rules or legal frameworks. If a country has a legal framework, it depends on the existence of such governing mechanisms, not on the degree to which it fulfills principles of liberty, equality, or the rule of law. 

What rules remain in effect in that framework depends on what legal norms the authorities consider as authoritative; such as statutory actions, court rulings, or social practices. The reality that a policy is moral, sensible, effective, or reasonable is rarely enough just to believe it is really the norm, and the possibility that it is unfair, unwise, wasteful, or imprudent is never enough cause to question it. Law is a question, according to positivism, of what was presented (ordered, determined, exercised, accepted, etc). Austin thought the thesis was “easy and boisterous.” Although it is undoubtedly the prevailing opinion among analytically oriented law theorists, along with frequent critiques and misunderstandings it is still the target of opposing definitions.

Every human community has some sort of social order, some way to label and promote accepted behaviour, dissuade disapproved behaviour, and settle conflicts about that behaviour. What, then, separates countries with political structures and their rules within such institutions? This needs emphasizing before presenting any positivist solutions that these are not the only issues worth asking regarding the rule. While knowing the essence of law needs an explanation of what makes law unique, comprehension of what it has in common with other types of social regulation is often needed.

Criticism on legal positivism

The most prominent critics of legal positivism arise from the assumption, in one manner or another, that it refuses to give morality its due. A philosophy that relies on the facticity of law appears to add nothing to our perception that law has vital roles to make human life move on, that the rule of law is a valued value, and that the vocabulary and application of the law are heavily moralised. Accordingly, the proponents of positivism hold that the most prominent attributes of law are not to be seen in its source-based nature, but in the capacity of law to promote the common interest, to protect civil rights, or to rule with dignity. 

Merits of legal positivism

Law does not always follow the criteria by which it is correctly appraised. The policy should be honest, but it may not be; it should uphold the greater good, but it does not sometimes; it should preserve human values, but it may miserably struggle. It is what we would term as the principle of moral fallibility. The argument is right but it’s not positivism’s sole property. The difference between these conditional and absolute decisions is all that the philosophy of natural law requires to satisfy the concept of fallibility. Positivism is often claimed to offer a more stable view of the fallibility of justice because if we realize that it is a collective creation, we are less inclined to show it undue deference and more able to indulge in a clear-headed rational appraisal of the rule. Nevertheless, positivism is often more credibly related to the belief that legal theory is, or should be, value-neutral. To be sure, legal positivism is not an “assessment of its topic,” that is, an assessment of the rules. So suggesting that the life of the law is based on social reality does not engage us to believe it is a positive thing. Of course, there is a context in which any definition is filled with meaning. This chooses and systematizes only one portion of the infinite number of facts about its subject matter. 

Difference between legal realism and legal positivism

Legal positivism is a separate topic from legal realism. The discrepancies are important analytically as well as normatively. Both structures consider the rule as a human creation. Positivists, unlike the American legal realists, claim that in certain situations the statute gives fairly defined instructions to their topics and judges, at least in the courts. Niklas Luhmann concludes “We may reduce positive law to a formula, the law is not only raised (that is, selected) by judgment, but is also true by decision-making power (thus dependent and variable). Positivists, though, do not say that anybody’s judgment makes a law valid. According to Hart, the truth of legislation is a question of court customary and collective processes. As about the legal value of the statute, it is a question of universal values that both positivists and realists uphold. In this situation, “the force of judgment” has no important function, because individual judgments never serve to establish a collective norm of acceptance, so it would be implausible to believe that moral values are thus determined by somebody. 


There are links between legal realism and legal positivism. Judicial positivists contend that all legislation is a good rule because it is socially dependent. Therefore, the rule is incomplete: there are legal issues that can not be settled by statute alone. Yet legal realists tend to believe that all legislation is good, so they argue that positive law under-determines judicial rulings, at least in appellate proceedings. My point is that one discrepancy resides in their respective approaches to sources of law after such logical mistakes are put aside. Positivists believe that certain branches of legislation, at least on judges, are binding. Legal realists contend that other documents are simply permissive: only domestic laws and cases sometimes provide no more jurisdiction, for example, an international law standard. This, in comparison to the more common origins of indeterminacy known by both positivists and realists, tends to understand why realists believe the rule is too poorly governing in litigation, and why issues of strategy and interest sometimes undermine it. 


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