REALIST SCHOOL

BAYHON, ANTHONY REY P.

CEMENTINA, JOHN GLENN
COLLAMAR, NICOLE
GUYO, DONNA GRACE
ILAS, RASELO
REALIST SCHOOL

• The realists defined law not as a set of logical propositions but

in terms of official action.
• Law can have a little weight in legal evolution. Society is
always changing, moral judgements are developing, and the
law therefore is in state of flux.
JUSTICE OLIVER WENDELL HOLMES JR.

• He was an American jurist who served as an

Associate Justice and later acting Chief
Justice of the Supreme Court of the United
States.
BUCK VS. BELL, 247 U.S. 200
ISSUE/LEGAL DISPUTE
Whether or not Virginia’s Forced Sterilization Law denied Buck her right
to due process and equal protection under the Fourteenth Amendment
Applicable Law
Virginia Sterilization Act
Analysis of facts
Carrie Buck was a “feeble minded” woman who was committed to a
mental health facility.  Both Buck’s mother and daughter were feeble
minded.  It was believed that the mental affliction was hereditary. 
Accordingly, the superintendent of the mental health facility
recommended sterilization of Buck.
BUCK VS. BELL, 247 U.S. 200
Analysis of Argument

Buck Bell
Sterilization would hinder her right to Sterilization would promote “both the health
procreate of the individual patient and the welfare of
society.”
CONCLUSION
• In order for society not to be “swamped with incompetence,” having the sterilization of some
mentally incompetent persons is permitted.  Further, the sterilization process cannot occur until
after a long hearing process.  Justice Holmes, writing for the majority, noted that “[t]hree
generations of imbeciles are enough.”
• With regard to equal protection, there is no equal protection problem by the statute focusing
only on people in certain mental institutions rather than the public at large.  The “law does all
that is needed when it does all that it can,” as it assumes most mentally deficient people are in
the relevant institutions.
Rule of Law or Legal Principle Applied
It is better to impose sterilization on those “manifestly unfit from continuing their
kind,” than to wait for such people to commit crimes or “starve for their
imbecility.”

Significance
Buck v. Bell is significant because it legitimized eugenic sterilization, and it
sparked many states to adopt their own involuntary sterilization statutes.  In fact,
Adolf Hitler cited Buck v. Bell as a model for his forced sterilization law to prevent
“hereditarily diseased offspring.”  The Nazis even used Buck v. Bell as a defense
during the Nuremburg trials following World War II.
Buck v. Bell has not been expressly overturned.  However, Skinner v. Oklahoma,
316 U.S. 535 (1942) made forced sterilization so difficult that it discouraged the
practice.  By 1963, sterilization laws were almost entirely out of use.
ABRAMS VS. UNITED STATES, 250 U.S. 616
Issue/Legal Dispute
• Whether or not the amendments to the Espionage Act or the application of those
amendments in this case violate the free speech clause of the First Amendment
Applicable Law
• Espionage Act
Analysis of facts
• In 1918, the United States participated in a military operation on Russian soil against
Germany after the Russian revolution overthrew the tsarist regime. Russian immigrants
in the us circulated literature calling for a general strike in ammunition plants to
undermine the us war effort. The defendants were convicted for two leaflets thrown
from a new york city window. One denounced the sending of American troops to Russia,
and the second denounced the war and advocated for the cessation of the production of
weapons to be used against soviet Russia. They were sentenced to 20 years in prison.
ABRAMS VS. UNITED STATES, 250 U.S. 616
Analysis of Argument

Abrams United States

That the only intent was to prevent injury to Men must be held to have intended, and to
the Russian cause be accountable for, the effects which their
acts were likely to produce
Conclusion
When the purpose of written material is to excite disaffection, sedition, riots, and revolution to
possibly defeat the military plans of the U.S., the First Amendment does not protect that
speech.  Therefore, the defendants can be prosecuted under the espionage act.
In a dissenting opinion, Justice Oliver Wendell Holmes argued that the First Amendment protects
the right to dissent from the government’s viewpoints and objectives. Protections on speech, he
continued, should not be curtailed unless there is a present danger of immediate evil, or the
defendant intends to create such a danger. The evidence in this case consisted of two leaflets,
which he concluded did not meet the “clear and present danger” test
THE GET-REAL THEORY

• Sometimes labelled as “pragmatic jurisprudence”, focuses on

these human realties that are often overlook by hard law,
technicalities, and abstract policies.
• Justice Holmes argues on “the bad man model”, that in
crafting law or deciding always think from the perspective of
the bad man, not the good man as the bad man, at the end of
the day, cares only for the consequence of the law, of what the
courts will do to him, and the rest are irrelevant.
THE GET-REAL THEORY

• It tells the law and law practitioner to get real – if the law
reflects practical experience.
• Law is determined by the actual practices of courts, law
officers, law enforcers; by real word practice. Human factors
and realities are unavoidable in hard cases and judges must
be able to take these into consideration.
SOCIAL DARWINISM
SOCIAL DARWINISM
• Charles Darwin published his notions on
natural selection and the theory of
evolution in his influential 1859 book On
the Origin of Species
• Darwin’s theory of evolution by natural
selection was a scientific theory focuses
on explaining his observations about
biological diversity.
SOCIAL DARWINISM
• Spencer applied the idea of “survival of
the fittest” to so-called laissez faire or
unrestrained capitalism during the
Industrial Revolution, in which
businesses are allowed to operate with
little regulation from the government.
SOCIAL DARWINISM
• The eugenics movement focuses
on eliminating undesirable traits
from the population. Proponents of
the eugenics movement reasoned
the best way to do this was by
preventing “unfit” individuals from
having children.
SOCIAL DARWINISM
• Hitler adopted the social Darwinist
take on survival of the fittest.
• He believed the German master race
had grown weak due to the influence
of non-Aryans in Germany. To Hitler,
survival of the German “Aryan” race
depended on its ability to maintain
the purity of its gene pool.
SOCIAL DARWINISM IN GILDED AGE

• The Gilded Age in United States

history was an era of rapid economic
growth that occurred during the late
19th Century.
SOCIAL DARWINISM IN GILDED AGE

• Social Darwinism was used as a

justification for American imperialism
in Cuba, Puerto Rico, and the
Philippines following the Spanish-
American War, as many adherents of
imperialism argued that it was the
duty of white Americans to bring
civilization to “backwards” peoples.
CRITICAL LEGAL REALISM

• There really are no legal rules. Appeals to

rules are mere rationalizations of the
decisions of judges made one extra-legal
grounds.
• The discipline of law consists simply in
predicting what judges will do.
CARIÑO VS. INSULAR GOVERNMENT
Issue/Legal Dispute
• Whether or not the plaintiff owns the land.
Applicable Law
• Treaty of Paris
• Law of Spain (Spanish Law)
• Bill of Rights
Analysis of facts
• The applicant and plaintiff in error is an Igorot of the Province of Benguet, where the land lies. For more than
fifty years before the Treaty of Paris, April 11, 1899, as far back as the findings go, the plaintiff and his
ancestors had held the land as owners. It is suggested that, even if the applicant have title, he can not have it
registered, because the Philippine Commission's Act No. 926, of 1903, excepts the Province of Benguet among
others from its operation. But that act deals with the acquisition of new titles by homestead entries, purchase,
etc., and the perfecting of titles begun under the Spanish law. The applicant's claim is that he now owns the
land, and is entitled to registration under the Philippine Commission's Act No. 496, of 1902, which established
a court for that purpose with jurisdiction "throughout the Philippine archipelago," section 2, and authorized in
general terms applications to be made by persons claiming to own the legal estate in fee simple, as the
applicant does. He is entitled to registration if his claim of ownership can be maintained.
 CARIÑO VS. INSULAR GOVERNMENT

Analysis of Argument
Cariño
That the plaintiff and his ancestors had held the that the plaintiff's land was not registered, and
land as owners as far back as findings go. (For
more than 50 years before the treaty of paris.)
They all had been recognized as owners by the
Igorots, and he had inherited or received the
land from his father, in accordance with Igorot
custom.
 Conclusion
Insular Government
therefore became, if it was not always, public
land
that the United States succeeded to the title of
Spain, and so that, the plaintiff has no rights
that the Philippine government is bound to
respect.

• The plaintiff should be granted what he seeks, and should not be deprived
of what by the practice and belief of those among whom he lived, was his
property, through a refined interpretation of an almost forgotten law of
Spain.
JUDICIAL ACTIVISM
JUDICIAL ACTIVISM

• Former Chief Justice Sereno frequently issued

statements condemning President Duterte’s war
on drugs.
• This represented a clear dereliction of duty and
was a grave danger to the democratic health of
the country.
JUDICIAL ACTIVISM

• In a normal environment, judges of any high

court must automatically recuse themselves
from making controversial comments on political
or policy matter behind the judicial bench.
• The result of this judicial activism if left
unchecked is a situation of anarchy where the
President is saying one thing and the chief
justice saying another thing.
JUDICIAL ACTIVISM

• Judges like Sereno are not supposed to be

public figures who make or comment on policy
outside of the court room. If this were the case,
there would be no need to separate judicial
power from executive and legislative power.
ESTRADA VS. DESIERTO
Issue/Legal Dispute
•P
Applicable Law
•P
Analysis of facts
•P
ESTRADA VS. DESIERTO
Analysis of Argument
Estrada Desierto

Conclusion
•P