The Realist Movement is a part of the sociological approach and it is sometimes called the "left wing of the functional school" It differs from the Sociological School as it is little concerned with the ends of law. It concentrates on a scientific observation of law in its making and working.

The movement is called "realist" because it studies law in its actual workings and rejects the traditional definition of law as a body of rules and principles that the courts enforce. The word realism means relating to the world as it operates.

The advocates of the Realist Movement concentrate on the decisions made by law courts. They not only study the judgments given by Judges but also the human factor in Judges and lawyers. They study the forces that influence judges in making their decisions.

The American Realist Movement combines analytical positivist and sociological approaches. It is positivist in the sense that it regards law as it is and not as it ought to be.

They put too much emphasis on Judges. To them, law is what Judges decide. That is partly due to the fact that Judges have played a very important part in the growth of the American Constitution and law. The approach of the realists is essentially empirical. Their view is that the decisions of the Judges are brought about by ascertainable facts.

Some of them are the personalities of the individual Judges, their social environments, the economic conditions in which they have been brought up business interests, trends and movements of thoughts, emotions, psychology etc.

Therefore, Realist School believes that:
Law is not the body of rules, but it is what the judge decides.

• What the judge decides depends upon human factors in the judges and lawyers, the forces which influence the judge in reaching their decisions.
• Mix of Analytical positivist approach and sociological approach.

In Realist school we have 'American Realists' and 'Scandinavian Realists' American Realists:

• John Chipman Gray (1839-1915)
  John Chipman Gray believed in the concept of "The centrality of the role of Judges". All law is judge-made law. Legislation is therefore no more than a source of law, it is the courts that 'put life into the dead words of the statutes'.
   
• Oliver Wendell Holmes (1841-1935)
  Law is not defined until the judge decides the case. Law can only be defined as a prediction of how the courts behave. The lawyer, The client, and The defendant are termed as 'Bad Man' in this theory.

According to him, law must be strictly distinguished from morals:
A lawyer is concerned with what the law is and not with what it ought to be. Holmes was never tired of asserting how "policy" governed legal development, especially in the form of the "inarticulate" convictions of those engaged in creating law. Holmes felt that the development of law could be justified scientifically.

In this respect, Holmes relied more on practical than on pure science, the lawyer trained in economics and statistics though he nowhere clearly indicated how an objectively sound "policy" was to be attained. Holmes accepted the possibility of scientific valuation in law, but he did not go so far as Dewey in the view that the choice between different values can also be verified scientifically. For Holmes, the arbiter of this choice could only be a naked force.

That tendency was made articulate by Holmes I who, in an essay published in 1897, gave an entirely empirical and skeptical definition of law in these words:

Take the fundamental question, what constitutes the law, you will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted actions, or what not, which may or may not coincide with the decision. But if we take the view of our friend, the bad man, we shall find that he does not care two straws for the action or deduction, but that he does want to know what Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by the law.

The Bad-Man Theory posits that the best test of legal boundaries is through the lens of a 'bad man' – someone who meticulously calculates the potential consequences of their actions under the law.

This approach shifts the focus from what the law ought to be to what the law practically enforces. Holmes argued that by understanding the law from this perspective, one can precisely understand its limits and applications.

According to this theory, the law should be understood primarily from the standpoint of the "bad man" - someone who is motivated solely by self-interest and a desire to avoid punishment, rather than by any sense of moral duty or ethical consideration.

The idea is that people will follow the law if they understand that breaking it will lead to negative consequences.

The Bad-Man Theory supports this view by focusing on the law's practical effects rather than its moral or ethical implications. Under this theory, the prediction is made by viewing the law following a bad man's point of view who is not bothered about morals.

Such a person is unconcerned with acting morally. Instead, such a person would be concerned about the degree of punishments certain acts will incur by the public force of law.

Oliver Wendell Holmes addressed an audience at the Boston University Law School, telling them, "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.

Holmes's approach is seen as part of legal realism, which emphasizes that law should be based on how it works in practice, not on abstract moral ideals or theoretical concepts of justice.

Example 1: A business owner considers underreporting income to avoid paying taxes.
From the "bad man's" perspective, the business owner may not care whether tax evasion is morally wrong or harmful to society. Instead, they will assess the risk of getting caught by the IRS and the penalties involved (such as fines or imprisonment). If the risk of detection is low and the rewards (in terms of tax savings) are high, the business owner might choose to evade taxes.

• Law's Role: The law's primary function here is to create an effective system of audits, penalties, and enforcement that makes the consequences of tax evasion clear and predictable. The law deters tax evasion not by appealing to morality but by focusing on the threat of punishment.
   
• Example 2 – A person considers stealing an item from a store:
• From the "bad man" point of view, the individual does not think about whether stealing is right or wrong. Instead, they assess the risk of being caught (e.g., security cameras, store employees, police) and the consequences if caught (e.g., arrest, criminal record). If the risk of detection seems low (for example, in a small, understaffed store), the person may feel emboldened to steal.
• Law's Role: The law functions to prevent shoplifting by creating clear rules (such as criminal charges for theft) and enforcing them through police presence, security systems, and deterrent penalties. The person's decision is driven by a desire to avoid punishment, rather than concern for the moral wrongness of stealing.
   
• Critics argue: The theory focuses too much on the self-interest of the "bad man" and neglects the role of law in promoting justice, fairness, and the common good. It overlooks the moral and ethical dimensions of law that many believe should guide legal decisions.
   
• Further criticisms:
• It treats individuals as purely self-interested agents, disregarding the potential for people to be motivated by a sense of right and wrong, empathy, or social responsibility. This could lead to an overly cynical view of human nature and law.
• It risks reducing law to a mechanical system of rules and punishments, without considering the broader social or moral context. This could undermine efforts to address issues of justice and fairness that go beyond mere legal compliance.
   
• Jerome Frank (1889-1957):
• He said that there are only two groups of realists, Rule sceptics and Fact Sceptics.
• Fact sceptics are those who have doubts such as: have the real facts reached the judge or been distorted? Whether the judge is biased, how he has interpreted facts, or how he has related facts to rules, are concerns of fact sceptics.
• He called himself a 'constructive legal sceptic.'
• He believed that judges and jurymen may have biases towards race, sex, or religion, but there are also unconscious biases that could influence a judge.
• Example: A Catholic judge might fail to separate personal views from decisions, like whether abortion should be legalized, influenced by religious beliefs, even when legal frameworks allow it.
• Frank defined law as the decisions of judges, describing the decision process as based upon R x F (rules into facts).
   
• Karl Llewellyn (1893-1962):
• He defined law as an institution, a very complex one, which not only has a body of rules based on many principles, but also uses precedents and ideology, containing both flexible and rigid practices.
• Law is little more than putty in the hands of a judge who can shape the outcome of a case based on personal biases.
   

Scandinavian Realists:

• Axel Hagerstorm (1868-1939) – "Father of Scandinavian Realism":
• He said that 'all metaphysical concepts are sham concepts' and that they are 'mere wordplay'.
• Example: When we say a person has a right, we mean:
• The person shall obtain the advantage to which they claim to be entitled under the right.
• The person will obtain from the courts a power of compulsion, provided that they fulfil the court's obligations. But what if the person is unable to fulfil the court's obligation? Does this mean they have no right?
• Even if the person fulfills the obligations, there is no certainty that the court will rule in their favor.
• Thus, in reality, there is no right, but only there ought to be a right.
   
• General Criticism of the Realists:
• The realists have exaggerated the human factor in judicial decisions. The human factor indeed plays a role, but that does not mean that judicial decisions are purely the result of the judge's personality.
• The realist movement has made a valuable contribution to jurisprudence. Its approach to law is positive and demands a comprehensive approach that considers all factors leading to decisions.

Conclusion:
I agree with the fact that legal decisions are influenced by morals, social conditions and judge's experiences. I personally cannot differentiate between law and morals, because both are complimentary to each other.

Realist Theory is more focused on the behaviour and decisions of judges but I also believe that a case's outcome is influenced or shaped by factors such as politics, public opinions etc.

J. Holmes's Bad Man Theory has helped understand law from a different perspective. If we have a question in our minds every time when we think of committing a crime like whether the punishment for this crime is rigorous or extreme or simple? Then we as the general public will also start to think about it as a bad man and this might also prevent us from committing a crime. But for that, we need to have a fear in our minds about breaking the law or going against it.

This can be achieved if we fix the loopholes in our legal system.