LEGAL REALIST
natural law theory in the determination of the ultimate
INTRODUCTION:
• LEGAL REALISM
It is used to describe the experiential or empirical
outlook of the juristic school on the traditional assumptions
on law and the legal order
“The Pragmatic Jurisprudence”
• CHARLES S. PIERCE : introduced it in 1878
• Was brought forward in 1898 by:
• Psychologist William James
• Educationist John Dewey
However it was introduced to the Legal Philosophy by :
Oliver Wendell Holmes
• Pragmatic: is a matter of fact, it is a more practical
approach as opposed to idealistic.
• 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 to be tested by the practical
consequences of belief.”
LEGAL REALISM AS A DISTINCT JURISTIC
APPROACH
• 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 thorough
understanding of the actual operation of the legal
order in terms of
◼ The socio cultural experience or the
modern adjudicative process.
◼ The social facts that contribute to the
social welfare and advantage
SOCIAL LEGAL REALISM
• Based on John Dewey’s Philosophy, he holds that:
• Knowledge is a part of experience involving
the intercourse of a living being with the
physical and social environment, and
• Learning becomes effective and adequate to
the necessities of life only when it is
coordinated with experience.
• Therefore, SOCIAL LEGAL REALISM Is basically a
pragmatic approach of a non lawyer to the study
of the nature, as an effective means of social
control wherein law is viewed as :
❖ A program for action to be tested in action, not
something that can be judged on a permanently
intellectual basis.
❖ It cannot be studied apart from its physical and
social environment and
❖ It cannot be isolated from active life experiences.
Source of Law
Like the other groups of legal realist, Dewey broke with the
source of law. He simply could not accept the proposition of
the naturalist jurisprudents that “unless a source higher
and more fixed than that of experience can be found, there
is sure ground for any genuinely philosophic valuation of
law as it actually exist.”
Dewey postulated that the source of law cannot be found
outside experience since this is all man living in society can
know. In other words, all that man can understand must
have been the result of experience. He considered the
opinion of the naturalist jurisprudents that the source of
law is “something higher and more fixed than that of
experience” as impractical since no one has experienced
the metaphysical idealism of the natural law. As Plato so
aptly out, any representation of the perfect idea of the
“natural law” would only be an imperfect representation
thereof.
Thus, Dewey’s philosophy of law is that it is “social in
origin.” Strangely enough this idea of Dewey has undertone
of Savigny’s volkgeist.
For in the thinking of Dewey, the idea of the social origin of
law means that the immediate source of law is custom
which in turn is the embodiment of human activities and
interactivities and that its ultimate source is the experience
itself of the people as group.
To put it in another way, a group of people in the
continuation of their society, recognizes and accepts the
same desirable conclusions (customs) growing out of the
same collective experiences (usages). Dewey’s pragmatism
here lies first in his attempt to overcome the opinion of the
naturalist jurisprudents that the source of law can be found
outside of society, e.i., in some transcendental, abstract
idea and, secondly in his endeavor to limit the source of
law to customs (activities) and usages (interactives) instead
of the total oblutiacs of the people.
• What is an OBLUTIACS?
An acronym according Prof. Pascual which means the
peoples:
1. Opinions
2. Beliefs
3. Longings
4. Usages
5. Traditions
6. Idiosyncracies
7. Arts
8. Customs
9. Supertitions
B. End or Purpose of Law
John Dewey faced a dichotomy of sorts when it
comes to end or purpose of the law. If the source is the
custom of the people, then the problem of the end and
standard of the law in relation to the fact of the common
experience of the people arises. Again, if the source of law
is the custom of the people, then the standard for judging
the value of law seems to depend on the non empirical,
that is outside the domain of experience of the people.
Dewey concluded that this is the standard which
the law should meet rather than non-empirical principles
which are so conflicting with one another showing that they
do not flow from any priori standard. If this criterion of the
law, Dewey submits that it is the end or purpose of the
law- the deliberate achievement of individual and general
moral happiness. Thus, upon these conditions the other
members of society can and should be happy since regard
for “the happiness of others means regard for those
conditions and objects which permit other freely to exercise
their own initiative, reflection and choice”.
C. Application of Law
In postulating the social aspect of the application of the
law, Dewey said that “ what is call application is not
something that happens after a rule or law or statute is
laid down but is a necessary part of them; such necessary
part indeed that in given cases we can judge what the law
is matter of facts only by telling how it operates and what
are its effects in and upon human activities that are going
on.”
AMERICANLEGAL REALISM
The approach styled “American legal realism” is
characterized by a healthy skepticism for the traditional
perspectives of law. Like the other prongs of modern legal
realism, it doubts the ontological and transcendental
approaches to the problem of the nature of law or the legal
in terms of the “law as it is” and the “law as it ought to be”,
respectively.
• The ontological or positivist school is criticized for
failing to see and observe legal realities in terms of
modern judicial process and for giving undue
emphasis on legal rules as the fundamental
sources of the law. The transcendental or
teleological school, on the other hand, is faulted
for its over dependence on general proposition.
• They point that the history of jurisprudence has
come to some kind of a dead end. To know the
nature of the law and to solve the varied problems
connected with it by means of pre-conceived ideas
that are not derived from experience have only
made knowledge about them quite confusing,if not
possible.
• The legal realist have become suspicious of the
jurisprudence of concepts and of the jurisprudence
of interest, where the same old symbols and
principles are repeated even under the
embarrassing situation that they appear in pairs,
that is to say, a “plaintiff principle” and a
“defendant principle”.
• Thus, it was that during the last 60 years a
growing concern for legal actuality has been
noticeable in the task of fashioning a more realistic
jurisprudence by refusing to define law absent a
realistic concern for the legal process, legal
concepts and legal institutions.
• American Legal Realism based on John Chipman
Gray
Intro:
-According to Gray:
“Law is not an ideal but something that actually exists. It is
not that which is in accordance with religion or nature or
morality. It is not which ought to be BUT that which is.
Gray differentiates law and “the law”:
Law- ordinarily means a statute passed by the legislature of
a State.
The Law- whole system of rules applied by the courts.
-according to Gray, any differentiation between “law” and
“the law” should be made between the law itself and 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 no more than sources of
the law.
-legislative acts or statutes are to be dealt with as sources
of Law and not as part of the law itself.
-all the Law is judge-made law and not both legislative law
and judge-made law.
- separation of law from its sources..
- no rule or principle which the highest tribunal of a country
refuses to follow is Law in that country.
-criticizes Austin’s idea that law is the command of the
supreme political superior since it is the court that gives
true meaning and limits to a law.
- said that whoever had an absolute authority not only to
interpret the law but to say what the law is, is truly the Law
giver.
CONSTRUCTIVE SKEPTICS
• The common characteristic of legal realism is
skepticism about conventional theories of law and
the legal process.
Characteristic of Legal Realists:
1. Rule Skeptics- they doubt and question the blind faith
given to legal rules.
 2. Fact Skeptics- while they appreciate the role of appellate
court, they deplore the concentration given to these
decisions and consequently, the lack of attention to the
actualities happening in the trial courts.
 • It is clearly stated in this presentation:
• RxF=D
• where R= rule, D= decision and F= Facts
• Hence, if Facts are erroneous, decision is likewise
erroneous.
ROLE OF MATERIAL FACTS
Formalist Concept
• -In judicial realism, the concept of material facts is
a vital factor in the legal ordering.
• -whether a judge considers certain facts as
irrelevant or assumes certain facts which are
unrecorded, the material facts are no more than
what the adjudicating officials say they are or
imply from what they think the facts are.
• -the emphasis placed on this concept is both
recognition of and a concession to the demands of
changes.
ROLE OF EXPERIENCE AND SOCIAL ADVANTAGE
• According to Oliver Wendell Holmes, Jr. law is
Modern Realist Concept
viewed as the expression of the force and
experience of society upon practically all of human
activity through the agency of the courts whether
judicial or administrative.
• An example of this is the famous case of Buck vs
Bell.
• The case involves the constitutionality of a state
sterilization (surgical removal of reproductive
organs)The facts involved a feeble-minded woman
who was an inmate in a State mental institution.
Her mother was also feeble-minded, and she has
an illegitimate child who was likewise feeble-
minded.
• -In this case, Holmes opined that it is better for the
world to let society prevent those who are
manifestly unfit from producing offsprings of their
kind than to wait and later execute those offspring
for crime or let them starve for their imbecility.
• -according to Holmes, the true grounds of decision
are considerations of policy and of social
advantage, and it is vain to suppose that solutions
can be attained merely by logic and general
propositions of law which nobody disputes.
• -The life of the law has not been logic but human
experience in terms of social advantage.
ROLE OF METALEGAL STIMULI
• When Holmes expressed his striking concept of the
law as “ the prophecies of what the courts will do
in fact and nothing more pretentious”, and when
Gray articulated his telling analysis that “the law is
the whole system of rules applied by the courts”
and that a law or statute is only a source of the
law, they opened up a broad field of jurisprudential
investigation.
• They are positing the idea that rather than
examine what the courts say they do, it is better to
investigate what they really do or what they will
do in fact.
• Thus, stress is given to the predictor use of
decisions in the light of the influenced exerted, in a
fairly uniform manner, by certain metalegal factors
on the judicial personality of the adjudicating
officials, whenever they sit in in judgment of the
conflicts of human activities and interactivities.
• The formalist concept of the adjudicative process
hinges on the application of the legal rule or rules
on the facts of a case. The logical basis for
decision and the decision itself are then arrived at.
• Holmes condemned this “black-and-white”
approach. He stated that a “ a body of law ir more
rational and more civilized when every rule it
contains is referred articulately and definitely to an
end which it serves, and when the grounds for
desiring that end are stated or are ready to be
stated in word”.
• In modern ontological jurisprudence, the law is
determined by something more than legal rules
and facts. Without a consideration of the material
facts, the legal rules cannot even come into play
or application. In another way of saying it, there is
a general scepticism by modern realist
jurisprudents in the sufficiency of these elements
of the judicial process.
• The earlier generation of the formalist
jurisprudents would have been shocked by this
type of realism but is a fact that in the great
majority of the hard and important cases the
courts have readopted legal rules and legal
principles, circumstances, and value-patterns of
the time to keep the law alive. Thus, courts have
divided and will continue to divide in deciding
conflicts of interests even when the same legal
rules are applied to the same facts. Indeed, the
courts may view a problem one way at a time and
in a different way at another time.
• The point for the modern realist approach is that
there are indeed certain unavoidable factors- which
can be summed up under the term metalegal
stimuli- operating on the judicial personality of the
adjudicating officials every time they sit in
judgment over a conflict of interest. In different
words, the law cannot be separated from the
politics of the law. No study of jurisprudence and
philosophy of law can afford to disregard the
metalegal factors or forces in the ordering of
human conduct and experience.
• Undoubtedly , for the realists, there is a human
equation in the life and processes of the law. Legal
rules and material facts are factors that compose
only one of two quantities that go to make up the
law. In the second quantity, adjudicative discretion
and metalegal stimuli play a silent but no less
important role. They provide not only a means for
 creative talent but they also afford the setting and
justification for the play and action of certain
extrajudicial factors in the process of decision-
making. All these means that legal science is not
separable from the politics of the law.
Metalegal Factors
• There is evidence and many cases to show that
metalegal stimuli affect in no small measure the
formulation of the honest convictions of the judges
in the significant cases. There are certain factors
which affect not only the general outlook of the
judges but also influence their decisional
behaviour. It must be stated, however, that many
of these factors manifests themselves only when
judges deliberate on the issues and write their
decisions.
• The different kinds of metalegal stimuli further
explains why legal journals or law reviews have a
somewhat different task to perform everytime a
new member of a high court is appointed. Indeed,
one of the points that should prevent one’s
elevation to a high judicial post is a complacent
juristic mind or a self-satisfied juristic creativeness.
The metalegal factors may be grouped as follows:
a) The stimulus set up by witness
b) The stimulus set up by lawyers
c) The stimulus set by the judges ‘ legal attitudes
d) The stimulus set up by the judges predilections
and preconceptions
e) The stimulus set up by historical events and
precedents
f) The stimulus set up by current economic or social
conditions
Stimulus Set Up by the Witnesses
• It is said that the witnesses in a court constitute
the axis on which the decision of the judge turns.
• The oral testimony is only a means utilized in
litigation of conflicting interests. The stimulus set
up by witnesses are principally the result of their
statements, gestures, manners, moods, voice or
pitch, zeal, hesitation, embarrassment, grimaces.
Indeed, the “tongue of the witness is not the only
organ for conveying testimony”.
• But there seems to be no rules by which the
honesty of witnesses and the accuracy of their
statements can be ascertained by judges. Indeed,
a judge may disregard portion of the testimony of
a witness but give credence to the portions thereof
which the judge believes to be consistent with the
facts. Thus, even when a witness has falsified his
testimony on some particulars, it does not follow
that the whole of his testimony is rejectable but
such portions thereof which a judge may deem
worthy of belief may still be credited.
• Perhaps there should be training of some kind for
trial judges in the behavioral sciences or allow
tools of behavioral sciences in order to help courts
in the evaluation of the testimonies of witnesses.
• METALEGAL STIMULUS
Meta – from Greek word meaning adjacent, after or
beyond
Legal – being in conformity with the law
Stimulus - something that causes a physiological or
psychological response
c. Stimulus set up by the judge’s legal attitudes
The judge’s legal attitudes are really the sum of his
inclination bent on the matter in dispute.
D. Stimulus set up by the judges’ predilections and
preconceptions
Judge’s legal sympathies and legal antipathies.
Legal sympathies – strong likings which arise from a
judge’s community of experience, education, interests
and even temperament.
Legal antipathies – settled aversions or dislike for
certain legal or political theories.
Plainly, the mind of a judge is not a blank sheet of
paper without any legal sympathies and legal
antipathies. It is a store of them acquired in the
process of maturing and education. But this metalegal
stimuli come into operation only because of the very
nature of cases or activities involved therein.
E. Stimulus set up by historical or political events and
precedents
The historical or political events by historical or political
events and precedents, while generally transient, are,
nonetheless, commanding and decisive in the judging
process. This is specially true in the great constitutional
questions, viz., delegation of legislative power, vested
rights, due process of law, equal protection of the law,
civil liberties, etc.
F. Stimulus set up by current social and economic
legislation
By and large the important cases that reach the courts
are convered with, related to or bear upon socio-
economic questions. In controversies of this type, the
decisional behavior of a judge may depend on his
social or economic outlook.