AMERICAN REALISM

American realists set to denounce the reality of certainty and predictability of a common law legal system as a result of application of precedent. This school is a group of American jurists who rebelled against the positivist idea that law is a body of rules and that lawyers and judges apply rules. 

This school focused more on the court system with the ultimate objective or reforming the judicial system. They were of the view that in analyzing law and legal system, too much attention was often paid to the bare rule while enough attention wasn't paid to the human factors in the application of the rules to specific cases. Hence, they were of the view that the judicial process is not an objective exercise as it may look in the books. This is because the judge and the jury are often influenced by certain extra-legal factors (e.g. background) more than the evidence adduced at the trial and the arguments of the parties.
One of the main objectives of this school was to make judges conscious of their latent prejudices and thereby encourage more objectivity in judicial decisions. The realists did not want the judicial system biased in favour of the 'good boys' and against the 'bad boys'. 
The historical school argues that a law is never law unless it is authoritatively pronounced and applied to the facts of the case by the courts and applied in subsequent cases.
The realists are into two broad categories; rule skeptics and fact skeptics. The rule skeptics say there are no rules at all. That because of judicial findings it is what the judges pronounce as a rule that stands and not what the statutes say. According to Oliver Wendell Homes, law is judge-centered and judge-based; it is only law to the extent that judges have made statements in that regard. That the legislation only provides the skeleton while the judge provides the flesh. In essence, law is what the courts decide. Similarly, Gray in his book entitled THE NATURE AND SOURCES OF LAW distinguished between 'law' and 'source of law'. Law is what judges decide while its source are the rules which they are required to interpret or apply to arrive at a decision. Karl Lwellyn (Law Job Theory) made behavior the focal point of his jurisprudence. He noted that the doing of something about disputes is the business of law. And the people who have the doing in charge are officials of the law. What these officials do about disputes is the law itself.
On the other hand, fact-skeptics focus mainly on the need to improve fact finding processes in trial courts. According to Jerome Frank in his Courts on Trial, the attainment of certainty or predictability of judicial decision by ensuring clarity of rules will only solve a part of the problem. To him, the major part of the role of courts in determining disputes is fact-finding. Rule skeptics therefore placed too much emphasis on appeal courts where facts are taken as presented. For him, it is not only rules that realists must strive for its certainty, something needed to be done about the trial process. 

Criticisms
* Though judges have wide discretionary powers in the discharge of their duties, the discretion must operate only within the framework or confines of the statute/law. 
* The realists completely ignored the legislature. The primary function of the legislature is to make law. Hence, what is declared by the courts as law is only law when it conforms to the intention of the legislature otherwise this would amount to usurpation of the powers of the lawmakers. 
* A denial that certainty in law can be achieved through rules is no reason why rules may not be called 'law'.
* It is too narrow a perspective of law to view if from prediction of judicial decisions. Such view ignore other sources especially statutes and custom. 
* To assert that law is only what the courts say it is or a prediction of what judges will do is to involve oneself in a position which can't be defended against critical attack. For example, judges are people who hold certain offices defined by law. If law were only what the judges say it is, we would be in a vicious circle from which we would be unable to escape. Also, to state in all seriousness that law is what a judge says it is, the consequence would be that a judge can never be wrong. 
Notwithstanding the above shortcomings, we would like to state that the realists were undoubtedly right in stressing that there are many cases in which judges have a certain measure of discretion as to how to decide, especially in cases which are complex. However, the mistake of the more radical realists was to 'over-emphasize' this point to the extreme/extent of denying any usefulness to the effort to elaborate clear rules.

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