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Jerome Frank's Realist View Of Law

Introduction to Legal realism and Jerome Frank:

Legal realism is a concept that holds that law must consider existing social interests and public policy. According to legal realism, when determining a matter in a court of law, judges examine not just abstract laws but also public policy and societal interests. Legal realism shifted the emphasis of early law studies away from written law codes and legal systems and toward a social link and culture-based approach. This change may be described as law in action vs. law in books.

Jerome Frank:

He was a proponent of the 'American school of realism' and played an important role in the advancement of American legal realism1. He was a constructive legal sceptic who questioned everything and took nothing for granted in everyday terms, as well as holding a traditional understanding of the law. Among his most renowned and controversial works is "Law and the Modern Mind", in which he introduced the notion of "legal myth".

Frank claimed that court decisions were largely driven by the psychological influences on the individual judge. He highlighted the psychological basis of judicial decision-making, saying that banal matters like what a judge ate for breakfast might affect a court's judgement. When the law is so fluid and malleable, Frank believes it is dishonest for the legal profession to promote the idea that it is clearly knowable or exactly foreseeable.

Law according to Jerome Frank:

"Law is what the Court has decided in respect of any particular set of facts prior to such decision, the opinion of lawyers is only a guess as to what the Court will decide and this cannot be treated as law unless the court decides so by its judicial pronouncement."2

Frank stated that the meaning of the law varies from person to person and that there is no perfect explanation for the meaning of the law. Instead, he proposed "Court law" to gain a general idea of what law means in practice. The term "court law" refers to real law made up of particular previous judgments as well as probable law made up of predictions of specific future decisions, with the latter being what a client is most concerned with when visiting a lawyer.

In every case, according to him, the law is:

  1. Actual law, i.e., a particular previous ruling pertaining to that scenario
  2. Probable law, i.e., an educated prediction about a certain future ruling.
It is unfortunate that Jeromey Frank was unable to adopt an observant stance, which may have been a required conclusion from his own psychoanalytical experiences.

Legal realism and skepticism as per Jerome Frank:

Jerome Frank split realists into two camps:
  • Rule Skeptics:
    Those who rejected legal standards as a source of consistency in the law and instead sought consistency in rules drawn from psychology, anthropology, sociology, economics, politics, and other fields.
     
  • Fact Skeptic:
     Who dismissed even this quest for uniformity. All attempts to attain rule certainty were abandoned, and the difficulties of establishing even the facts in court was underlined.

Jerome Frank was himself a fact skeptic. Judges, in Frank's opinion, are simply "living oracles" of the law. They have a basic obligation as judges to behave in line with societal assumptions or value judgments. For example, A catholic court would prohibit abortion whereas a progressive court somewhere else would allow abortion rights.

Frank's concept of Legal rules and basic Legal myth:

In his work, he contended the fact that certainty of law is a "legal myth". The legal decision regarding the question of law is a result of rules and facts whereby there is no guarantee that if any of those can be understood perfectly. He advanced that if one wrong is committed there are various facts that may influence the decision.3

Rules: Facts = Legal decision


His point of view was that while a range of influences that affect court judgments and legal norms can have a major impact on the decision-making process and is one of many stimuli, this does not indicate that socio-factors and facts do not play a part in decision making. He expanded on how various legal conclusions might be based on differing readings of facts by judges. For example, in the issue of live-in partnerships in India, the verdicts of various High courts have differed based on the interpretation of judges.

Affirming the certainty of law as a myth, he humorously quoted:

"Justice is what the judge ate for breakfast." 4

As Frank considered conviction in the certainty of legal norms to be the result of a "childish mentality", judges and attorneys should not make decisions based solely on precedents, but rather on the facts of the case. According to him, the law is a constructive activity in the hands of judges and attorneys, and so law should be built on a case-by-case basis. Frank advised judges and legal academics to publicly admit the gaps and ambiguities in the law and to see law pragmatically as an instrument for human improvement.

Individual Opinion:
Jerome Frank was a legal pragmatic and his idea of uncertainty of law survives even in modern scenarios whereby the judicial decisions are being influenced increasingly by social scenarios and precedents are not blindly followed. The skeptic approach was much criticized because of the chaos of not following legal rules to which he denied but this approach was highly influential and revolutionized the American realist school of thought.

Foot-Notes:
  1. American legal realism, Knowing What the Law Is (2021).
  2. Jerome Frank, Law & the modern mind (2017).
  3. Matthew W. Frank & Robert Jerome Glennon, The iconoclast As Reformer: JEROME Frank's impact on American law, 84 Michigan Law Review 866 (1986).
  4. Jerome Frank, Jerome Frank QUOTES FamousQuotes, https://www.famousquotes.com/author/jerome-frank-quotes (last visited Aug 24, 2021).
  5. Jerome Frank & W. Friedmann, Legal theory, 59 Harvard Law Review 1004 (1946).
  6. Neil Duxbury, Jerome Frank and the legacy of legal realism, 18 Journal of Law and Society 175 (1991).

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