The life of the law has not been LOGIC; it has

been EXPERIENCE
-Oliver
-(

Wendell Homes Jr.

The Common Law 1881 )

 It

is the third theory of jurisprudence which

argues that the real world practice of law is
what law is; the law has the force that it
does because of what legislators, judges,
and executives do with it.

 It

operates on premise that it is adhered to,

often unwittingly, by most laymen and many
who have legal training: that the LAW, in
whatever may be, is concerned with and
intrinsically tied to the real-world outcomes of
particular cases. Accepting this premise
moves jurisprudence, or the study of the law
in the abstract, away from hypothetical
predictions and closer to empirical reflections
of fact.

1st developed in the 1st half of 20th

Century.
Created Chiefly as a response to Legal
Formalism

Law

is indeterminate
- Law found in Codes and Jurisprudence
does not always determine the outcome of
the law.

 The

Outcome of a case may be determine

by what the judge ate for breakfast.

 Judicial

Legislation

Making of the new legal rules by Judges

- JUDGE-MADE LAW (blacks law dictionary)

Judge must construct the law, and thus be guided by

legal jurisprudence.
He stated that the inherent lawmaking aspect of a
decision-maker is one of necessity and not one of
choice.

 Species

of Legal Realism
Looks beyond Legislative intent and text.
Freedom of Judges to DECIDE.

 It

Explains or merely describes the law as

is.

It

describe law as plain and simple creation

of man subject to human factors.

Legal Formalism it highly follows the

syllogistic form of legal reasoning.

In

I.E
MAJOR premise
MINOR premise
CONCLUSION

In Legal Realism it consciously or

unconsciously rely on extra-legal factors in
resolving case.

I.E.
Human Experience
Society
Religious reasons

 D.

WORKINS THEORY OF
ADJUDICATION
Judges are influenced by their personal

Convictions
Based on society

 Look

at the law as if you were the Bad Man

- Why as a bad man? It is because he is
the one most interested in avoiding prison
time and all sorts of punishments, hence, he
has no interest in the idealized principles of
morality, but how to escape the penalty.

Law

is nothing but the predictions of how

courts will behave

 Article

9 of the Civil Code of the

Philippines

 Hopkins

v. police (2004)