American Realism School of thought

The American realism school of thought was defined according to

outcomes of court decisions. It was termed as the result against
formalism since it emphasized the certainty of the law and its effect on
the citizens. Under the realist school of thought realists sought to study
law in more empirical and realistic terms in that citizens could have the
ability to predict court decisions.
HISTORICAL BACKGROUND OF THE REALISM SCHOOL OF THOUGHT.
The American realism school of thought started in the United States of
America with the works of philosophers such as Wendell Holmes,
Williams James, and Dewey. Early traces of the realism school of thought
are picked from Dewey and Wendell’s treating of knowledge as a kind of
knowledge arising from problem solving. The school of thought came up
as a response to the lassie faire doctrine in the American society during
the 19th and 20th century and also the empirical school which had
dominated British jurisprudence. It was mainly fronted by justice Oliver
Wendell Holmes who had an assertion that mainly life of the law is more
of experience more than logic.
In the United States of America realism school of thought was an answer
to the dynamic and peculiarities of the states in America mainly on the
concept of federalism which meant that laws in different American states
were diverse due to the diverse federal administrations yet the law had
still to questioned in the high Court of the United States of America.
FEATURES OF THE REALISM SCHOOL OF THOUGHT .
The school of thought was mainly driven by scientific and empirical study
of the law empiricism can mean the principle that knowledge is based on
experience it comes from a Greek word empiria which means knowledge.
It was mostly portrayed in Oliver Wendell Holmes’ preposition that law
may be approached in the interest of science and to be done through
empirical proof measured on social desires or the desires of the people. It
laid ground for two major features: (1)Legal certainty which entailed the
prediction of court decisions. Realists emphasized that lawyers should be
knowing what to tell clients in regard to outcome in court decisions this
would be possible by the doctrine of precedents where clients issues are
easier to determine due to availability of precedents where lawyers could
draw knowledge to guide their clients. (2) Revolt against formalism.
Formalism can be defined to mean a theory that states that jurisprudence
judges should apply law as it is written. Formalism was on the rise in the
19th it mainly leaned on areas such as mathematics, study of arts such as
economics, philosophy and jurisprudence. During the era the truthfulness
of an idea would be tested according to its alignment to the Areas stated
above. The rise of the empirical idea of proving that philosophical,
economical, and other ideas as practical was a direct contradiction to
formalism in America. The school of thought did mot only give rise to
jurisprudence but also the sociological school of thought which seeks to
study law in the line with societal needs.
PROPONETS OF THE REALISM SCHOOL OF THOUGHT.
(1)Oliver Wendell Holmes.
No legal writing is full of detail and technical terms as that of justice
Holmes, and this owes to his profession as a judge and law profession.
Oliver Wendell was a justice of the supreme Court, a professor of law at
Harvard in1882. He is quoted to have said that when studying law we are
studying what we shall want in order to appear before judges or advise
people in such a way as to keep them out of court and that object of the
study of lawyers is prediction. He also claimed that the primary rights and
duties with which jurisprudence busiest itself are nothing but prophecies.
He is mainly known for his bad man theory which arose out of his view of
the law as prophecies he suggests that a man a man is about to breach
the law who has in fact breached the law should be able to predict what
the law will do to him. So the bad man knows more about the law more
than the good man whose only drive is conscience he is quoted to have
said.” If you want to know the law and nothing you must look at it as a
bad man who cares only for practical material consequences which such
knowledge enables him predict not as good one who finds his reason for
conduct whether the law or outside it in the vague sanctions of
conscience. A bad man has as much reason as a good one for wishing to

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avoid an encounter with the public force and therefore you can see the
difference between morality and the law.”
(2)William Lawrence Twinning.
In his works, The badman revisited in 1973 he identified questions that
realism sought to answer i.e. What should law schools be teaching? What
should be the scope of legal relationships? How far do legal institutions
and concepts perform their role in society? What is the relationship
between law and other disciplines? Realists are thus more concerned
with legal literature than legal philosophy.
(3)J Frank
He noted in his works Law and the modern mind that thecommon
feature that connects all realists is the scepticism as to some of the
conventional legal theories such that the realists question the
working of the conventional legal theory so as to refine the same
for the perfection of the legal system. The question of how
applicable the law is to society or the lay man how coherent the
legal doctrines are to lay man are of importance in that they make
law better and useful to man. To him realists are constructive
skeptics in far as they seek to reform in the interest of justice some
court house ways. Yet even these he divides into two categories i.e.
the rule skeptics and the fact skeptics. The rule skeptics who are
mainly represented by Karl Llewellyn whose major point of
contention is with the law’s paper rules which are incapable of
providing lawyers with the ability to predict the outcomes of the
court decisions and therefore, making it impossible for them to
predict the outcomes of court decisions to their clients. While the
fact sceptics where he belongs concentrate on factual determinants
of court decisions suggesting that it is because of these factors that
court decisions cannot be predicted. This makes the rule sceptics
more focused on the trial court which deal with the issues of trial.
A major question what are the impediments to the predictability of
court decisions? To him the chief obstacle to prophesying a trial
court decision is due to external factors hence the inability to
foresee what a particular judge will believe. These factors may
involve around witnesses being truthful or the unknown trial jury’s

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 reactions and inclinations. So it is not the rules but the instruct able
factors which impede prediction of court cases. All these place the
lawyer in an unfavourable prediction position. This was his take on
the doctrine of precedents according to him the doctrine may have
less practical importance to the ordinary man than its more ardent
advocates accord it. This is mainly because the doctrine of
precedent mostly applies in the upper courts since they are only
relevant as to whether rules of the previous case should be applied
to the facts that have already been settled by trial court.
K Llewellyn.
Karl Llewellyn’s major jurisprudential idea is geared towards
factors that affect outcomes of court other than mere rules and
these include steadying factors, situation sense, period styles of
judging and the rest are all suggested and foreshadowed in articles
written years before 1940. He distinguished between the two styles
of judicial decision i.e. the grand style and the formal style . The
grand style of law is characterized by resort to situation sense. The
situation sense involves understanding and true evaluation of facts
and is not a particular set of facts but a type of situation which is
used in reference to other situations that might come before court
for decision. It dries up certainty and conflict between the seeming
authorities and demands for justice. On the other hand the formal
style of decision making requires that judges strictly adhere to
precedent . Karl strictly calls for constant re examination and re
working of a legal heritage in order to yield solidarity in the law and
its workings in order to solve the crises if knowledge within the bar.
In his work The common law tradition he points out that judges in
the United States of America had shifted from deciding cases
rationally and resorted to sentiment giving ex post facto jurisdiction
instead of reason this is what he intended to rectify in his ideas.
Function of the law. Llewellyn attempts to provide functioning
harmonisation of vision and tradition of continuity with growth or
machinery and purpose of measure with need for ordinary students
of the law, the ordinary practitioner and the ordinary judge.
Viewing law as a growing institution providing that it has a job to
do and its function is it to get them done affectively and well. The

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 jobs in which the law is focused are not indeed accomplished by the
law but by what he refers to as a cluster of factors. The role of law
according to him is to dispose of trouble cases, preventive
channelling i.e. the re orientation of conduct and expectation to
avoid trouble the provision of private law activity etc.
Men of law. Karl claims that men are the life blood of the legal
system which shapes men even as it is being shaped by them and
these according to Karl are specialist trained in the craft of law he
refers to them as men of law who are learned in doing the job
which according to him gives certainty to the activities of men. Thus
discrimination between when it will and when it ought to be is the
discrimination between rules of judges and those of counsellors.
Reason and the law. Where the reason stops the enacted rule also
stops therefore according to him the enacted law must be applied
in far as it is reasonable. After all legislators would not intend to
pass an unreasonable law . It follows that the judicial officer must
act in reason and never veer of in emotion since it is a quality of a
good judge to steel himself against emotion and against deflection
by sense or by sense of justice which may run counter to the law.
CRITIQUES OF THE REALISM SCHOOL OF THOUGHT.
The realists failed to integrate law with social science or organise
books along factual lines. The realists seem to place lawyers and
judicial officers at the centre of the judicial system not factoring in
enough social influences. This is mainly seen in Llewellyn’s
discussion of men of law as an exclusive class it is on this basis that
Laura Kalman claims realists failed.
RELEVANCE OF THE SCHOOL OF THOUGHT TO UUGANDA.
In Uganda the American realism school of thought is applied in thee
various occasions below.
First and foremost in Uganda just like the school of thought
suggests I is judges that interpret statutes this can be seen in the
case of Ruturi and anor vs Minister of finance and anor where
court observed that that it is for judges to observe what the
legislature has said and its the interpretation part that constitutes
the most thrilling and creative part of a judge.

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 Realists believe that have judges have bias towards sex religion etc.
the bias in turn shapes their decision making this is seen in the case
of Julius Rwabinomu vs Hope Bahimbisomwe Justice Twinomujuni
based on the book genesis in determination of matrimonial
property which showed alignment to the Christian world view in his
decision making.
Furthermore they emphasize the point scepticism where many
rules exist and if applied in practice when if applied they lead to
conflicting decisions in this case judges do not explore the entire
they base on common sense and submission of the lawyers. In the
case of Uganda vs Kasule Daniel court was alive of the fact that
there was scepticism in section 40(3) of the trial indictment act
about children’s testimony which makes it difficult to obtain a
conviction where a child was victimised instead court held that the
child could not explain in the four times the defendant had sex with
her.
Another way in which the American realism school is relevant to
Uganda is the through the prediction theory of Holmes where he is
quoted to have said that the law has no teeth until courts decide
something and until there is a decision all we can do is predict. He
also said laws are important since they help us predict what judges
will do. It states that there is no law before decision but rules or
statutes can be used to predict the outcomes of court decisions this
can be evidenced in Uganda where the mere application of section
141 of the registration of titles act confirms that a registrar cannot
make entry in the register book while a caveat is in force and this
was the exact judgment in the case of Administrator General vs
Registrar of titles showing the relevance of the principle.
The doctrine of precedents is another relevant feature of the
American realism school of thought in Uganda where the doctrine
that’s embedded in the stare decis principle that provides that
lawyers are able to predict the outcome of a case basing on the
facts of the client and also where a court decision is used as an
authority in dealing with matters having similar facts or similar legal
issues the doctrine provides that courts should apply the law in the
same way it was applied in the cases with similar facts and issues.

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 We can clearly see its application in Uganda in the case of Uganda
vs Commissioner of prisons exparte Matovu where in decision court
used a precedent set in the decided case of State vs Dosso to apply
the Hans kelsen theory of law.