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Evaluate to what extent legal realism is the view that law is not simply a result of written

law, but a product or consequences of judicial decision making? Draw your conclusion
by making an analysis on a reported Malaysian and foreign court case.

Legal realism means the study of law as it is actually carried out and enforced rather than law
as a series of rules contained in statutes. Gray defines law as a rule of conduct laid down by the
persons acting as judicial organ of the state. For him, law is what the judges declare. He
emphasizes that the personality and personal views of a judge play an important role in the
decision making process. Judges, while interpreting a legal rule for applying it to a fact situation,
exercise their own discretion and judgment and thus not only declare but also make law. He
insists that law comprises of rules laid down by the courts, and the statutes and other legal
materials are merely sources of this law.

The other scholar of the legal realism, Holmes maintains that judges give new meaning and
interpretation to an existing legal or create a new rule for the first time. For him, no one can be
sure of the real nature and scope of a rule until a decision is given. The law as is actually
declared by the courts is the outcome of the necessities of the time, the prevalent moral and
political theories, intuitions of what public policy demands, even the prejudices which judges
may have, and the number of other factors. Since the mind of the judges is affected by such
factors as these, the rule declared as the law in a situation is not the rule based on any statute
or legal premise. Its nature and content have changed.

Llewellyn argues that law is not what is found in the books. For him, law is what officials do
about disputes. Mere paper rules would not tell us much about decisions, because they are
often capable of being construed in different ways and because different rules could be selected
from the mas of rules available to support decisions arrived at for reasons which had nothing to
do with rules.

The realist approach has been accused for causing a great deal of confusion and exaggerating
the role of judges in shaping and making law. It has been argued that law is not what the courts
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administer but courts are the institutions which administer the law. If the judge is inclined to
follow the law, it can be very well predicted in most of the cases what the judge will do.
Moreover, law comes first and the courts later. The realist approach to law applies only to a
country where bulk of the law has developed through the courts such as the United States and
hardly applies to a system where the law is largely contained in statutes. Further, the realist
approach may apply to difficult cases where the law is ambiguous or there is no explicit law
governing the issue. Where the law is certain and clearly stated, the judges has little choice in
finding the facts or applying law.

In order to evaluate whether the legal realists theory of law is applicable or not, we refer to
some foreign and also Malaysian reported cases. The first case is the case of Bolam v Friern
Hospital Management Committee [1957] 1 WLR 582. The court in this case does not refer to
any established law, however the judge had created a test to determine the standard of care
which the doctor must possess in order to determine whether the doctor is negligence or not.
The test is also known as Bolam Test. McNair J stated that:
The test is the standard of the ordinary skilled man exercising and professing to
have that special skill. A man need not possess the highest expert skill; it is well
established law that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art..in the case of a medical man,
negligence means failure to act in accordance with the standards of reasonably
competent medical men at the timethere may be one or more perfectly
proper standards; and if he confirms with one of those proper standards, then he
is not negligent..mere personal belief that a particular technique is best is
no defence unless that belief is based on reasonable grounds.

The other case is the case of Sidaway v Bethlem Royal Hospital Governors and Others
[1985] 1 All ER 643. This case followed the Bolams case and applied the Bolam Test. The
issue arose in this case is whether the law imposes any, and if so what, different criterion as the
measure of the medical mans duty of care to his patient when giving advice with respect to a
proposed course of treatment. In order to make the decision on the standard of duty of care

imposed on the doctor towards his patient when giving the advice, the judges has come out with
their own different view. For instance, Lord Templemen stated in this case that:
In my opinion a simple and general explanation of the nature of the operation
should have been sufficient to alert Mrs Sidaway to the fact that a major
operation was to be performed and to the possibility that something might go
wrong at or near the site of the spinal cord or the site of the nerve root causing
serious injury. If, as the judge held, Mr Falconer probably referred expressly to
the possibility of damage to a nerve root and to the consequences of such
damage, this warning could only have reinforced the possibility of something
going wrong in the course of a delicate operation performed in a vital area with
resultant damage..A patient may prefer that the doctor should not thrust too
much detail at the patient.

In my opinion, if a patient knows that a major operation may entail serious


consequences, the patient cannot complain of lack of information unless the
patient asks in vain for more information or unless there is some danger which
by its nature or magnitude or for some other reason requires to be separately
taken into account by the patient in order to reach a balanced judgment in
deciding whether or not to submit to the operation.

The Malaysian case that we referred is the case of Soon Singh a/l Bikar Singh v Pertubuhan
Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489. The issue arose in this
case is whether the Syariah Court has a jurisdiction to deal with the case relating to the
conversion out of Islam. Mohammad Dzaiddin FCJ decided that:
Be that as it may, in our opinion, the jurisdiction of the Syariah Courts to deal
with the conversion out of Islam, although not expressly provided in the State
Enactments, can be read into them by implication derived from the provisions
concerning conversion into Islam. It is a general rule of construction that if the
meaning of a statute is not plain, it is permissible in certain cases to have
recourse to a construction by implication and the court may draw inferences or
supply the obvious omissions.
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.when jurisdiction is expressly conferred on the Syariah Courts to


adjudicate on matters relating to conversion to Islam, in our opinion, it is logical
that matters concerning conversion out of Islam (apostasy) could be read as
necessarily implied in and falling within the jurisdiction of the Syariah Courts.

The cases discussed above shows that the legal realism theory of law is applicable where the in
the first case, which is in the case of Bolam v Friern Hospital Management Committee
[1957] 1 WLR 582, the court has created a new rule to determine whether the doctor is
negligent or not. It is in line with the realist view that the law is created by the decision of the
judges. The rule created in Bolam case has become law in England and will be referred by the
court if it deals with the same issue. It is can be proved in the case of Sidaway v Bethlem
Royal Hospital Governors and Others [1985] 1 All ER 643, where in this case, the court
applied the Bolam Test to determine whether the doctor had negligent in giving the advice. The
court in this case also comes out with different opinions about the standard of the duty of care
which the doctor must possess when giving advice with respect to a proposed course of
treatment to his patient. The judges make a decision in this case based on those opinions. It is
same goes to the case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam
Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489, where in this case, the court decides
that the Syariah Court has a jurisdiction to deal with the cases related to conversion out of
Islam, even there is no specific provisions granted such jurisdiction to the Syariah Court. The
courts decision is based on the implication derived from the provisions concerning the
conversion to Islam.

Based on those cases, we can conclude that the realist theory of law that the law is not simply a
result of written law, but a product or consequences of judicial decision making, in some
circumstances can be accepted. Their theory can be apply where there is no specific law govern
the issue that need to be determined by the court as happened in the cases discussed above.