Legal Realist

8/11/2019 Legal Realist

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LEGAL REALISM

It is used to describe the experiential or

empirical outlook of the juristic schoolon the traditional assumptions on lawand the legal order

ThePragmaticJurisprudence


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CHARLES S. PIERCE : introduced it in 1878

Was brought forward in 1898 by:

Psychologist William James

EducationistJohn Dewey

However it was introduced to the LegalPhilosophy by :

Oliver Wendell Holmes


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Pragmatic : is a matter of fact, it is a more

practical approach as opposed toidealistic.

Pragmatism: is a practical approach to

problems and affairs.

It connotes that the function of thought is to

guide actions and that truth is pre eminently tobe tested by the practical consequences of

belief.


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It has its emphasis on the law in action. It has been called the radical wing of the

sociological or functional school

It is concerned with the need for a thoroughunderstanding of the actual operation of thelegal order in terms of

The socio cultural experience or the modernadjudicative process.

The social facts that contribute to the social welfareand advantage


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Based on John Deweys Philosophy, he holdsthat:

Knowledge is a part of experience involvingthe intercourse of a living being with thephysical and social environment, and

Learning becomes effective and adequate tothe necessities of life only when it iscoordinated with experience.


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Source of Law

Like the other groups of legal realist,Dewey broke with the natural law theoryin the determination of the ultimatesource of law. He simply could not accept

the proposition of the naturalistjurisprudents that unlessa source higherand more fixed than that of experience

can be found, there is sure ground for anygenuinely philosophic valuation of law asit actually exist.


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Dewey postulated that the source of law cannot

be found outside experience since this is all manliving in society can know. In other words, allthat man can understand must have been theresult of experience. He considered the opinion of

the naturalist jurisprudents that the source of lawis somethinghigher and more fixed than that ofexperience as impractical since no one hasexperienced the metaphysical idealism of the

natural law. As Plato so aptly out, anyrepresentation of the perfect idea of the naturallaw would only be an imperfect representationthereof.


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Thus, Deweysphilosophy of law is that itis social in origin. Strangely enough

this idea of Dewey has undertone ofSavignysvolkgeist.

For in the thinking of Dewey, the idea of

the social origin of law means that theimmediate source of law is custom whichin turn is the embodiment of human

activities and interactivities and that itsultimate source is the experience itself ofthe people as group.


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To put it in another way, a group of people inthe continuation of their society, recognizes

and accepts the same desirable conclusions(customs) growing out of the same collectiveexperiences (usages). Deweys pragmatismhere lies first in his attempt to overcome theopinion of the naturalist jurisprudents thatthe source of law can be found outside ofsociety, e.i., in some transcendental, abstract

idea and, secondly in his endeavor to limitthe source of law to customs (activities) andusages (interactives) instead of the total

oblutiacsof the people.


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An acronym according Prof. Pascual which meansthe peoples:

1. Opinions

2. Beliefs

3. Longings4. Usages

5. Traditions

6. Idiosyncracies7. Arts

8. Customs

9. Supertitions


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B. End or Purpose of Law

John Dewey faced a dichotomy of sorts when it

comes to end or purpose of the law. If thesource is the custom of the people, then theproblem of the end and standard of the law inrelation to the fact of the common experience of

the people arises. Again, if the source of law isthe custom of the people, then the standard for

judging the value of law seems to depend onthe non empirical, that is outside the domain of

experience of the people.


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Dewey concluded that this is the standard whichthe law should meet rather than non-empirical

principles which are so conflicting with oneanother showing that they do not flow from anypriori standard. If this criterion of the law, Deweysubmits that it is the end or purpose of the law-

the deliberate achievement of individual andgeneral moral happiness. Thus, upon theseconditions the other members of society can andshould be happy since regard for thehappiness of

others means regard for those conditions and objectswhich permit other freely to exercise their owninitiative, reflection and choice.


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C. Application of Law

In postulating the social aspect of theapplication of the law, Dewey said that what is call application is not somethingthat happens after a rule or law or statute islaid down but is a necessary part of them;such necessary part indeed that in givencases we can judge what the law is matter of

facts only by telling how it operates andwhat are its effects in and upon humanactivities that are going on.


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The approach styled American legal realismis characterized by a healthy skepticism forthe traditional perspectives of law. Like the

other prongs of modern legal realism, itdoubts the ontological and transcendentalapproaches to the problem of the nature oflaw or the legal in terms of the lawas it isand the law as it ought to be,respectively.


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The ontological or positivist school is criticizedfor failing to see and observe legal realities in

terms of modern judicial process and for givingundue emphasis on legal rules as thefundamental sources of the law. Thetranscendental or teleological school, on the

other hand, is faulted for its over dependenceon general proposition.

They point that the history of jurisprudence hascome to some kind of a dead end. To know the

nature of the law and to solve the variedproblems connected with it by means of pre-conceived ideas that are not derived fromexperience have only made knowledge aboutthem quite confusing,if not possible.


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Intro: -According to Gray:

Lawis not an ideal but something that actuallyexists. It is not that which is in accordance with

religion or nature or morality. It is not whichought to beBUT that which is.

Gray differentiates law and thelaw:

Law- ordinarily means a statute passed by thelegislature of a State.

The Law- whole system of rules applied by thecourts.


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-according to Gray, any differentiation betweenlawand thelawshould be made between the

law itselfand its sources. -it is absurd and unclear to say that law is already

present and existing in its sources.

-the law is what the court say it is and that

statutes, customs, and moral principles are nomore than sources of the law.

-legislative acts or statutes are to be dealt with assources of Law and not as part of the law itself.

-all the Law is judge-made law and not bothlegislative law and judge-made law.

- separation of law from its sources..


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- no rule or principle which the highest tribunal

of a country refuses to follow is Law in thatcountry.

-criticizes Austins idea that law is the

command of the supreme political superiorsince it is the court that gives true meaning andlimits to a law.

- said that whoever had an absolute authority notonly to interpret the law but to say what the law is,is truly the Law giver.


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The common characteristic of legal realismis skepticism about conventional theoriesof law and the legal process.

Characteristic of Legal Realists:

1. Rule Skeptics- they doubt and questionthe blind faith given to legal rules.


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-In judicial realism, the concept of materialfacts is a vital factor in the legal ordering.

-whether a judge considers certain facts asirrelevant or assumes certain facts which

are unrecorded, the material facts are nomore than what the adjudicating officialssay they are or imply from what theythink the facts are.

-the emphasis placed on this concept isboth recognition of and a concession to thedemands of changes.


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The case involves the constitutionality of a statesterilization (surgical removal of reproductive

organs)The facts involved a feeble-minded womanwho was an inmate in a State mental institution.Her mother was also feeble-minded, and she has anillegitimate child who was likewise feeble-minded.

-In this case, Holmes opined that it is better for theworld to let society prevent those who aremanifestly unfit from producing offsprings of their

kind than to wait and later execute those offspringfor crime or let them starve for their imbecility.


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-according to Holmes, the true grounds ofdecision are considerations of policy and of

social advantage, and it is vain to suppose thatsolutions can be attained merely by logic andgeneral propositions of law which nobodydisputes.

-The life of the law has not been logic buthuman experience in terms of social advantage.


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When Holmes expressed his striking concept of

the law as the prophecies of what the courtswill do in fact and nothing more pretentious,and when Gray articulated his telling analysisthat the law is the whole system of rules

applied by the courtsand that a law or statuteis only a source of the law, they opened up abroad field of jurisprudential investigation.

They are positing the idea that rather thanexamine what the courts say they do, it is betterto investigate what they really do or what theywill do in fact.


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Thus, stress is given to the predictor use ofdecisions in the light of the influencedexerted, in a fairly uniform manner, by certainmetalegal factors on the judicial personality of

the adjudicating officials, whenever they sit inin judgment of the conflicts of humanactivities and interactivities.


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Formalist Concept

The formalist concept of the adjudicative process

hinges on the application of the legal rule or ruleson the facts of a case. The logical basis for decisionand the decision itself are then arrived at.

Holmes condemned this black-and-whiteapproach. He stated that a a body of law ir morerational and more civilized when every rule it

contains is referred articulately and definitely toan end which it serves, and when the grounds fordesiring that end are stated or are ready to bestated in word.


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Modern Realist Concept

In modern ontological jurisprudence, the law isdetermined by something more than legal rulesand facts. Without a consideration of the

material facts, the legal rules cannot even comeinto play or application. In another way ofsaying it, there is a general scepticism bymodern realist jurisprudents in the sufficiency of

these elements of the judicial process.


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The point for the modern realist approach is that

there are indeed certain unavoidable factors-which can be summed up under the termmetalegal stimuli- operating on the judicialpersonality of the adjudicating officials every

time they sit in judgment over a conflict ofinterest. In different words, the law cannot beseparated from the politics of the law. No studyof jurisprudence and philosophy of law can

afford to disregard the metalegal factors orforces in the ordering of human conduct andexperience.


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Metalegal Factors

There is evidence and many cases to show thatmetalegal stimuli affect in no small measurethe formulation of the honest convictions of the

judges in the significant cases. There are certain

factors which affect not only the generaloutlook of the judges but also influence theirdecisional behaviour. It must be stated,however, that many of these factors manifeststhemselves only when judges deliberate on theissues and write their decisions.


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The different kinds of metalegal stimuli further

explains why legal journals or law reviews havea somewhat different task to perform everytimea new member of a high court is appointed.Indeed, one of the points that should preventones elevation to a high judicial post is acomplacent juristic mind or a self-satisfied

juristic creativeness. The metalegal factors may

be grouped as follows:


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It is said that the witnesses in a court constitutethe axis on which the decision of the judgeturns.

The oral testimony is only a means utilized inlitigation of conflicting interests. The stimulusset up by witnesses are principally the result oftheir statements, gestures, manners, moods,voice or pitch, zeal , hesitation, embarrassment,grimaces. Indeed, the tongue of the witness isnot the only organ for conveying testimony.


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But there seems to be no rules by which thehonesty of witnesses and the accuracy of their

statements can be ascertained by judges.Indeed, a judge may disregard portion of thetestimony of a witness but give credence to theportions thereof which the judge believes to be

consistent with the facts. Thus, even when awitness has falsified his testimony on someparticulars, it does not follow that the whole ofhis testimony is rejectable but such portionsthereof which a judge may deem worthy ofbelief may still be credited.


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Perhaps there should be training of some kindfor trial judges in the behavioural sciences orallow tools of behavioural sciences in order to

help courts in the evaluation of the testimoniesof witnesses.


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The judges legal attitudes arereally the sum of his inclination

bent on the matter in dispute.


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Judges legal sympathies andlegal antipathies.


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Legal sympathies strong likings whicharise from a judges community ofexperience, education, interests and even

temperament.


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Legal antipathies settledaversions or dislike for certain

legal or political theories.


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End

Legal Realist

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