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Also called Legal Realism, this is a school of legal thought that advocates a less abstract and more realistic, practical and pragmatic approach to the law by taking into account customary practices and the circumstances surrounding the particular transaction.
- Like Sociological Jurisprudence, this theory also points the gap between 'law in books' and 'law in action'.
- Law is not what Judges say but what judges actually do when determining cases.
- Law is uncertain until it is decided by a judicial action.
- This school believes that law is a product of judicial interpretation.
- Justice Oliver Wendall Holmes is considered as the father of this theory.
- Like Positivist Theory, this theory also sees Law as the will of the state but is made through the medium of Courts.
- Patton calls this school as the left wing of the functional school.
Salmond's View on Realism
- Salmond says not all Law is made by Legislature. In England, much of the law is made in courts (judge-made). Hence, we have to go to courts, and not to legislature, to understand the nature of law.
- Law is a body of principles recognized and applied by the state in the administration of justice; as the rules recognized and acted on by the courts of justice.
- Salmond's definition is considered appropriate for case law but not to statute law.
- A disharmony between Legislature and Courts occurs when a statute passed by Legislature is declared void by a Court. Salmond defended himself about this saying this is a marginal case which cannot influence the definition.