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 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.”
 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

 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.
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 natural law theory
in the determination of the ultimate
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.

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.”


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.
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.

 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:
 R x F = D
 where R= rule, D= decision and F= Facts
 Hence, if Facts are erroneous, decision is
likewise erroneous.


 -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.


 According to Oliver Wendell Holmes, Jr. law is
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.

 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.

Formalist Concept
 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”.

 Modern Realist Concept

 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
 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 behavioural sciences or
allow tools of behavioural sciences in order to
help courts in the evaluation of the testimonies
of witnesses.

 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
 The judge‟s legal attitudes are
really the sum of his inclination
bent on the matter in dispute.
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.
 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.
 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.
End