The Legal Realist Perspective

Presenters:Regudo, Marissa

Retuya, LawrenceYap, John Raymund

Nillama, VanznielEpo, Skellie

Discussion Outline

• I . Judicial Legal Realism• II. Social Legal Realism• III. Critical Legal Realism• IV. Psychological Legal Realism

What is the legal realist perspective?• Known as “Modern Legal Realism” to describe the

experiential outlook of this school of jurisprudence on the traditional assumptions on the nature of the legal order.

• Also labeled as “Pragmatic Jurisprudence”, which when used as a method of analysis, maintains that if there is no conceivable practical effect of a concept or idea, then there is simply no point in pursuing it’s analysis.

What is the Legal Realist’s Concern as a Juristic School?

The legal realist is more concerned with the operation of the legal order in terms of the experiences and interexperiences of the people in the legal ordering of society. This concern sets the legal realist apart from the adherents of the functional juristic school

I. Judicial Legal Realism – What is it like?

• It is characterized by a healthy skepticism for the traditional perspective of law.

• It criticizes the positivist school of jurisprudence for overdependence on the role of rules in the legal ordering of society.

• It faults the teleological school of jurisprudence for its over-emphasis on the abstract postulates of the natural law.

A. Intellectual Forbears

• Benjamin Hoadly, Bishop of Bangor – asserted in a sermon before a congregation

which included King George I that, “whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all intents and purposes, and not the persons who wrote or spoke them.”

• John Marshall, US Supreme Court Chief Justice- Was probably the first to acknowledge in a

court decision the concept of judicial legal realism as expressed on his decision in the case of Marbury vs. Madison when he asserted that, “it is emphatically the province and duty of the court to say what the law is.”

• Oliver Wendell Holmes, Justice US Supreme Court(one of the acknowledged inspiration of realist scholars who came after him)

His ideas on Human Law and Human Experience….- The precepts of natural law do not lie on the surface for they are really concealed and must be dug out and examined.

- The precepts of natural law are so abstract that people are led to contradictory results by them.

- The law is not a divine parent keeping watch over a human child. Human law is human and should not amount to more than that.

- The law should address human experiences – past and present. “the law should not be considered as a system of reason, not a deduction from ethical principles, corollaries and axioms, or what not.”

- “ The life of the law has not been logic, it has been experience. The felt necessities of the times, the prevalent moral and political theories, intentions of public policy avowed or unconscious, even the prejudices which judges share with their fellow men, have had a lot to do than the syllogism in determining the rules by which men should be governed.”

- “It is not the will of the sovereign that makes the law but what the judges, by whom it is enforced, says is his will. The judges have other motives for decisions, outside their own arbitrary will, besides the command of the sovereign. And whether these motives are, or are not, equally compulsory is immaterial if they are sufficiently likely to prevail to afford a ground for prediction.” (on the consequences of the metalegal stimuli on judges)

- “If you really want to know the nature of the law, you take it from the point of view of the bad man who cares only for the consequences which such knowledge enables him to predict what the courts will do to him.”

- for him, what constitutes as the law are the prophecies of what the courts will do in fact.

• John Chipman Gray, Harvard Professor(one of the acknowledged inspiration of realist scholars who came after him)

His ideas on separation of the Law from its source….- He emphasized that the law is “not an ideal concept but something that actually exists. It is not that which is in accordance with nature, or religion, or morality, it is not that which ought to be but that which is.”

- in giving definition of what the law is, he stated: “ The law is the whole system of rules applied by the courts. The law of the state or of any organized body of men is composed of the rules which the courts lay down for determination of legal rights and duties.”

- Legal rules are only sources of the law. The shape in which a statute is imposed on the community as a guide for conduct is the statute as interpreted by the courts. The courts put life into the dead words of the statute.

- “ No rule or principle which the highest tribunal of a country refuses to follow is law in that country.”

B. Constructive Skeptics

- Characterized by a healthy skepticism about the role of rules, facts, and judicial opinions in the legal ordering of society.

3 Distinct Groups1. Rule Skeptics2. Fact Skeptics3. Opinion skeptics

• 1. Rule Skeptics- Question the notion of the legal formalists that legal rules are precise and can be applied easily in any given case- Dispute the claim that legal rules by themselves dictate the or decision of a case.

“Rule skeptics feel that legal formalism has shunted to the background the relevant though inarticulate premises and uncommunicated reactions of those involved in conflicts of interests, namely the parties, the witnesses, the lawyers, the adjudicating officials, and even the community itself.”

• 2. Fact Skeptics- Appreciates the role of appellate court decisions in the

prediction of what courts will do. But they deplore the overemphasis given to appellate court decisions and consequently, the lack of attention to the actualities happening in the trial courts.

“For fact skeptics, the major cause of legal uncertainty is fact uncertainty, the unknowability before the decision of what the trial court will find as the facts and the unknowability after the decision of the way in which it found those facts.”

To illustrate the fact skeptics point into a crude schematic of the decisional process:

R × F = D Where R is the rule, F the facts and D the decision or

judgment.

On this basis, an erroneous F will lead to an erroneous D.

“ No matter how excellent the legal rules and social policies they embody, specific decisions will go astray, absent competent fact-finding.”

• 3. Opinion Skeptics– Mostly deals with the role and effect of metalegal

stimuli on the judicial personality.– Litigants present a set of conflicting major and minor

premises for each and every issue they argue about. In considering which of these contradictory premises, rules and citations are correct or reliable, appellate courts may and do make mistakes in the process.

“ The rationalization of a court even when on the basis of the material facts, the relevant rule and the actual issue or issues in a case may qualify as judicial precedent only when it is confined from molar to molecular motion”

C. Role of Material Facts

“Whether a judge considers certain facts as irrelevant or assumes the existence of certain facts which may not even be in the record of the case, the point is that the material facts are no more or less than what the judge they are.”

D. Role of Experience and Social Advantage

- law is a statement of the circumstances in which the public force will be brought to bear upon men through the courts.

- the law is not an exclusive product of logic. Logic has not been the life of the law for one can give any conclusion a logical form. The premise must first have to be valid, that is to say based on social advantage before a correct conclusion can be drawn.

- the point is that there are human factors involved in the legal ordering of society. These factors are unavoidable, especially in the hard cases.

E. Role of Metalegal Stimuli

- attention is focused on the empirical factors which underlie the judicial process. Stress is given on the predictory use of court decisions in light of the influence exerted, in fairly uniform manner, by certain metalegal factors on the adjudicating officials.

Formalist vs. Realist Concept

• Formalist Concept- Decisions follow on the basis of stare decisis.- In this model, the decisive legal rule serves as the

major premise, the material facts constitute the minor premise and the decision is reached strictly by deductive reasoning.

• Realist Concept- What the courts will do in fact is not achieved only by the interaction of the rules on the facts.- There is a human equation in the life and process of the law.- Metalegal stimuli not only provides the means for creative thinking but also the setting and justification for the play and action of what Holmes called “experience and social advantage.”

• Metalegal Factors- these are factors that create conflicts of interest affecting the judicial process. - Their importance in the adjudicative process lies in the reality that decisional behaviour is very likely to be affected by them, obscurely or articulately, unconsciously or avowedly.- They are environmental in character and personal in nature

Sources of Metalegal Factors

a. Stimulus Set by the Witness- it has been said that the testimonies of the witnesses constitutes the axis on which the decision of a judge may turn.- the stimulus set by the witness on the judge is principally the result of their statements, gestures, manners, moods, hesitation, embarrassment, grimaces.- “what is deemed reliable testimony depends upon the unique reaction of a particular trial judge to the particular witness in a particular trial case.”

b. Stimulus Set by Lawyers- brought about by the lawyer’s professional reputation and the lawyer’s professional bearing.

i. Professional reputation brings to it the lawyer’s sincerity and inclination for the “right” and “fair” cases and the intrinsic validity of the lawyer’s theory of a case, his arguments on the law and the material facts involved.

ii. Stimulus from professional bearing stems from the lawyer’s respect and regard for his own responsibilities as an officer of the court.

c. Stimulus Set by the Judge’s Legal Attitudes and Prejudices- these are the stimulus coming from the sum of the judge’s inclination or bent on the matter in dispute.

d. Stimulus set by the Judge’s Predelictions and Preconceptionsi. Through the judge’s legal sympathies (strong likings which arise from a judge’s community of experience, education, interests and even temperament. ii. Through the judge’s predilections – how the judge view his/her role.iii. Legal antipathies – settled aversions or dislikes for certain legal or political theories or ideas

e. Stimulus Set by Historical Events and Political Precedents- the prevailing sentiments under a particular event or political precedent may affect the way a judge rationalizes his/her decision.

f. Stimulus Set by Current Social Values and Economic Postulates- decisional behavior of a judge may be influenced by his or her social or economic outlook. - judges are human beings and they cannot isolate themselves from current social values and economic postulates.

F. The Law as the Product of the Judicial Process

- stresses on the importance of the ratio decidendi as a vital factor in prognostication of the result of other similar or nearly similar cases. (but this is only true so long as the judicial elaboration is done interstitially)

illustrated in a crude mathematical formula:

(jR × mF) × (mlS × jP) = L

Law becomes the product of jR(jural rules), mF(material facts), mlS(metalegal stimuli) and jP(judicial personality).

G. Exclusion of the Legislative and Executive Functions

- judicial legal realism excludes the legislative and executive organs as producing agencies of the law because in the adjustments of conflicting or overlapping interests and purposes, the ultimate authority in the interpretation and application of legal rules is the judicial organ.

- statutes enacted by the legislature and the orders issued by the executive department are only sources of law. This means that all agencies of the government engaged in decision making form part of the adjudicative organ, regardless of their political or governmental classification.

H. The Adjudicative Process as the Prime Mover

– In judicial legal realism, the process that controls the activities of individuals or groups of individuals in a politically organized society is the law uttered by the courts.

I. The Law and It’s Purpose

- The administration of justice is considered as the end of the law.- In realist jurisprudence, a legal rule is not necessarily “just” merely because the legislative or the executive organ has promulgated it.

II. Social Legal Realism – What is it about?

• Based on the philosophy of John Dewey (1859-1952).• It holds that knowledge is part of life-experience

involving the intercourse of a living being with his physical and social environment.

• Of the view that the life of the law cannot be understood apart from its social environment but must profit from social experience in the development of concepts, rules and regulations

A. Source of Law

• Dewey posited that law is the product of the on-going human activities and interactivities.

• The source of law is the social experience of the people, not the transcendental concept, since all that the people can appreciate well are their own experiences.

B. End or Purpose of Law

• The end purpose of the law is the deliberate achievement of social contentment.

• For Dewey, the law is a program of action to be tested in action, not something that can be judged on a purely intellectual basis.

• The life of the law is the social experience of the people and tested also by their social experience.

“Social contentment is the satisfaction which comes when the dominant active tendencies are made interests in the maintenance and propagation of the things that make life worth living.”

C. Application of Law• The law is an instrument of social control.• Implicit in this concept is the use or threat of

sanctions for the attainment of the social ends.

“ What is called application is not something that happens after a rule or statute is laid down but is a necessary part of them; such a necessary part indeed that in given cases, we can judge what the law is as a matter of fact only by telling how it operates and what its effects are in and upon human activities that are going on.”

III. Critical Legal Realism

• The Critical Legal Studies Movement was formally organized at the First Conference on Critical Legal Studies held in May of 1977 at the University of Wisconsin.

• This Movement has won adherents in France, in Germany, in Canada, in England and in the Philippines.

• The task of a GOOD LAW SCHOOL is to provide a legal education which frees the minds of professors and students alike from the grips of the dominant liberal paradigm and to delegitimize the improper and illicit tie between law and politics.

A. Critical Legal Scholarship Scorned• “…illegitimate descendants of the modern legal realist

school of jurisprudence.”-Richard Posner of the US Court of Appeals

• The kinship claimed by the critical legal scholars to the modern school of legal realism “is a grasp at legitimacy” -G. Edward White, Professor of Law University of Virginia

• “the academic left subculture.”-Cornel West, Professor of Religion Princeton University

B. Polemics Against Critical Legal Realism

• The Critical Legal Realism is a critique directed against many aspects of the dominant liberal paradigm. – Included therein are the “ways in which the

language of impartiality, objective due process, and value-free procedures hide and conceal partisan operations of power and elite forms of social victimization.”

• Some proponents of the dominant liberal paradigm have branded critical legal realism as another form of radical socialism, no different from the critical socialism of Karl Marx.– As stated by Karl Marx, “the bourgeois concept of

law is but the will of the dominant elite erected into legislation, a will whose essential character and direction are determined by material and economic conditions of the existence of the class.”

Critical Social Realism vs. Critical Legal Realism

The difference between the two theories is that the critical social realism of Marx is leftist oriented while the critical legal realism of Unger is not. Unger stated that his, “social theory is an alternative to Marxism” not a reaffirmation but a staunch denial of the bourgeois plan of social division and hierarchy.

C. Deconstruction of Dominant Liberal Paradigm

• The term “deconstruction” is used by the Critical Legal Studies Movement as a method or technique of:– stinging inquiry and analysis of the tendencies, beliefs,

attitudes, and interpretations of the dominant liberal paradigm, and

– internal reformation and development of the ideas and concepts of the dominant liberal paradigm by the presentation of the rationale or justification for the censure and the offer of alternative solutions.

1. Thrashing the Traditions of the Dominant Liberal Paradigm

• The Critical Legal Realists have discovered that in the liberal legal order, there is a free rather than a just society characterized by widening divisions and sharpening hierarchies and a jealous special-interest economy marked by exploitative, individualistic, and possessive propensities to control the social, economic, political, and legal processes of society through the subtle use of power and resources.

• Three undesirable situations in the contemporary liberal order were identified by the critical legal realists.

• These are: – the state has become the organization of the dominant

liberal class; – the law has become the rationalizing instrument of

alienation and oppression yielding concessions to the people only when absolutely necessary in order to avoid protests and contradictions; and

– the social structure has become so divided and hierarchied that status and position therein are being determined by irrelevant inequalities.

• Unger agrees that the tradition and propensities of the dominant liberal paradigm reveal its class essence.

2. Internal Reformulation of the Dominant Legal Paradigm

• The critical legal realists have gone beyond their analysis of the traditions of the dominant liberal paradigm at the first stage of the deconstruction process. They envision a post-liberal socio-legal order.

i. Rule of Law

• Here, the noun “rule” is best understood with regnum, which means reign and sovereignty of the law.

• This means that conduct must conform to the formal and impartial norms and values of the law suggested by the phrase “a government of laws, not of men.”

• It is not a license for extemporaneous and arbitrary exercise of authority but a limitation on the far-reaching exercise of political power and economic authority.

ii. Separation of Governmental Powers

• It involves more than a question of checks and balances on the exercise of governmental powers. – It is concerned with the direct and indirect

confrontation of core interests and functions between the legislative and executive power vis-à-vis the legislative power and vice versa.

Objectivism and FormalismThese techniques have been utilized by the dominant liberal class to mask its maintenance of the status quo.

• Objectivism• It is not the cognizable extrinsicality of legal concepts and legal rules. • It is the liberal view that the contemporary legal order, including the

built-in institutional structures that undergird it, is already sufficient to sustain society and, therefore, no reason exists to complain about it.

• Formalism• It is not so much the application of legal rules on the facts involved

in a conflict of interests that is attacked as it is: – over-dependence on legal rules; and – assumption that the legal order is non-partisan in the

adjustment of conflicting interests.

iii. Judicial Activism

• Otherwise known as judicial legislation.

• Critical legal scholars are deeply concerned about the dangers of illegitimate decisions.

• Judicial activism is nothing but a euphemism for avoiding the principle of separation of governmental powers.

Justice Oliver Wendell Holmes• “courts legislate interstitially; they are confined from

molar to molecular motion.”

•While judicial activism cannot be avoided, nevertheless, such activity is proper only when there are interstices or gaps in the text of the statute under question.

•Courts cannot enlarge the scope of a statute to include matters beyond its text or import.

CONDEMNABLE on several grounds:

1) it reflects only the personal or collective prejudices of the judges on what the legal rule should be;

2) it is an arrogant claim by a few unelected judges of veto power over legislation;

3) the legislators who are the representatives of the people an politically accountable to them, not the judges with an almost lifetime tenure, are the ones to make, modify, change, or repeal legislation;

Judicial Activism based on molecular to molar motion

4) courts should have no advantage over elected legislators and the former are to put into effect legislation regardless of their disagreement with the wisdom of the legislation, except when it is unconstitutional;

5) legislative facts and assessment of policy questions are entirely different from judicial facts and consideration of actual cases; and

6) courts have no moral and legal bases to create or contradict rules or policies merely on advisability.

•The indeterminacy of laws enacted by the legislature appears in two forms:

– First, when they are vague.– Second, when they provide inconclusive guidance

as to how persons are to act in the performance of their obligations or in the exercise of their rights.

• Judicial policy-making dulls the cutting edge of pure analytical reasoning.

• Analytical reasoning is replaced by political reasoning whenever courts engage in judicial policy-making.

• When the emphasis on determinate rules are diminished in the adjudicative process the result is NOT LAW BUT POLITICS.

iv. Popular and Liberal Concepts of Democracy• The critique against the idealistic version of

democracy is that it is awash with inapt hope on and misplaced confidence in the majoritarian rule and the theory of the consent of the governed.

• The critique against the cynical type of democracy is that the dominant liberal paradigm has virtually gained control of the government as well as the monopoly of the financial, production, commercial, and monetary involvements of the country.“The dominant liberal class would argue that it has occurred only after hard, rugged competition.”

• Transformation of the Liberal Legal Order

two basic means for transforming the liberal legal order dominated by avid capitalism:

1) the norm of basic equality; and2) the norm of democratic republicanism.

a. Basic Equality• traceable to Aristotle, who posited the concept of

fair equality as a jural postulate of natural law.• It has become the basis for the distribution of the

social and material goods of society depending upon individual effort and merit.

• Dimensions of Positive Equality1. Equality of opportunity2. Equality before the law3. Equality between values given and received4. The equable sharing of social and material goods on the basis of efforts exerted in their production

b. Democratic Republicanism• underscores the proper relationship that

should exist between the legal order and society in general

• defines the essential features of the social organization as well as the individual rights and entitlements that the government must protect come what may

• NOT BE ONLY REPUBLICANIZED- established and organized for the purpose of deconstructing

the liberal order

•BUT ALSO DEMOCRATIZED- eradication of social divisions and hierarchies and the return to

the people of their right to rule

…the harmonious co-existence of the exercise of governmental powers and the people’s enjoyment of their basic rights and primary entitlements is possible.

D. Transformative Content of Post-Liberal Order

• Three transformative contexts:1. The decentralization of government.2. The reorganization of the market economy.3. The reconstruction of the system of rights.

1. Decentralization of GovernmentElements:

- accountability- devolution- effective and efficient decision-making

- responsible and accountable party government

2. Reorganization of the Market Economy

• the equitable sharing and distribution of surplus or pure profit on the basis of effort exerted in its production.

• the equitable assignment of “the more or less absolute claims to the divisible portion of the social capital to guarantee a constant flow of new enterprise in the market economy.”

3. Reconstruction of the System of Rights• In the post-liberal socio-legal order, new concepts of

rights are introduced. These are:- the “resistance right”- the “destabilization right”- the “solidarity right”- the “market right.”

i. Resistance Right• Gives every individual “the fundamental sense of

safety that enables him to accept a broadened practice of collective conflict without feeling his vital security endangered.”

• One is given authority to be able to repel interferences with his vital security in the social and economic aspects of life.

ii. Destabilization Right• is the counterpart of the equal protection clause

enshrined in our constitution.• insures that institutions do not accumulate power

that may insulate them from challenge and accountability.

• is the institutional protection of an empowered democracy

iii. Market Right•establishes the limits of the claims which a person or

group of persons may make against capital available in society.

•enables every member of the society to question concentration of concessions of natural resources in one individual or group of individuals.

•gives a person the “conditional and provisional claim to the divisible portions of the social capital established by the state.

F. Function of Law

• law is an instrument to redeem the people from social divisions and hierarchies.

• law as a neutral and objective means of social control with emphasis on its liberating function.

“Only when the law is neutral and maintains its neutrality in the inevitable conflict of claims, demands and expectations can everyone in society accept it as a means of social control and feel safe and secure from illegitimate divisions and hierarchies.”

IV. Psychological Legal Realism

• Pursued by a small but vigorous group of Scandinavian jurisprudents.

• Based on the works of the following:– Axel Hagerstrom (1868-1939) : the acknowledge

founder of psycho-logical legal realism.– Vilhelm Lundstendt (1882-1955)– Karl Olivecrona (1893-1963)– Alf Ross (1894-1974)

A. Critique of Judicial Legal Realism

• According to Ross, the perceptions of Holmes, Gray and Frank that the law is indefinable without dealing with the environmental and predispositional metalegal factors operating in the judicial process suffers from the failure to separate the issue of validity from the question of reality in the judicial process.

• There is over-reliance on the role of the metalegal stimuli in the judicial process and overemphasis on the vicissitudes of fact-finding in the courts.

B. Critique of Legal Ideology

• Lundstedt complimented the legal realist for their efforts to “ free themselves from all prejudices of legal ideology based on abstract values.

• The peril to be avoided in legal ideology is that its intellectual patterns are abstract and vague.

• Legal ideology does not have a fixed meaning but depends on the preferences of its proponents and interpreters.

• Example, to characterize a statute or rule as just or unjust is meaningless. Just or unjust is nothing but an expression of a person’s own opinion or preference that he or she likes or dislikes a statute or rule.

C. Nature of Law

• The law and its component system of jural relations are real because they are social facts.

• Legal activities are essential to the social order, and to assure the legal ordering of society the law and its component jural relations must be based on the “feeling for justice prevalent and current within society.”

D. Jural Relations

• Right:Obligation is the basic jural relationship of individuals to other individuals and individuals of the state.

• 4 Types of Jural Relations– the claim-duty relation– the power-liability relation– the privilege-inability relation– the immunity-disability relation

• In the case of right and its correlative obligation, their reality must, respectively be, based on the feeling of ascertaining a position of advantage and the feeling of complying with the prestation constituting the undertaking.