LEGAL REALIST

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 Deweys 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 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, Deweys philosophy of law is that it is social
in origin. Strangely enough this idea of Dewey has
undertone of Savignys 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).
Deweys 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

of pre-conceived ideas that are not derived

from experience have only made knowledge
about them quite confusing,if not possible.

9. Supertitions

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

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 nonempirical 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

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.

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 Law- whole system of rules applied by the

courts.

AMERICANLEGAL REALISM

-the law is what the court say it is and that statutes,

customs, and moral principles are no more than
sources of the law.

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

-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.

-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 Austins 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.

logic and general propositions of law which

nobody disputes.

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 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.

ROLE OF MATERIAL FACTS

-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.

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.

ROLE OF EXPERIENCE AND SOCIAL ADVANTAGE

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 feebleminded.

-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

-The life of the law has not been logic but

human experience in terms of social
advantage.

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 ones 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 judges legal attitudes
The judges 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
Judges legal sympathies and legal antipathies.
Legal sympathies strong likings which arise
from a judges 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.

delegation of legislative power, vested rights,

due process of law, equal protection of the law,
civil liberties, etc.

E. Stimulus set up by historical or political

events and precedents

F. Stimulus set up by current social and

economic legislation

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.,

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.