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.
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:
- Actual law, i.e., a particular previous ruling pertaining to that scenario
- Probable law, i.e., an educated prediction about a certain future
It is unfortunate that Jeromey Frank was unable to adopt an observant stance,
which may have been a required conclusion from his own psychoanalytical
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
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.
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.
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.
- American legal realism, Knowing What the Law Is (2021).
- Jerome Frank, Law & the modern mind (2017).
- Matthew W. Frank & Robert Jerome Glennon, The iconoclast As Reformer:
JEROME Frank's impact on American law, 84 Michigan Law Review 866 (1986).
- Jerome Frank, Jerome Frank QUOTES FamousQuotes, https://www.famousquotes.com/author/jerome-frank-quotes
(last visited Aug 24, 2021).
- Jerome Frank & W. Friedmann, Legal theory, 59 Harvard Law Review 1004
- Neil Duxbury, Jerome Frank and the legacy of legal realism, 18 Journal
of Law and Society 175 (1991).