The Legal Realist Perspective

Kim Caurtero Noelle Maico Clem Villamor Babie Grace Bauyaban Carmel Alocillo Nile Delvo Feona Pitalcorin Ray Lambert Menchavez Christine Joymarie Perias

Group 8:

CONSTRUCTIVE SKEPTICS

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

3 Distinct Groups

1. Rule Skeptics

2. Fact Skeptics

3. 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.

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”

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.”

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.

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 ConceptDecisions 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.

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.”

SOURCES OF METALEGAL FACTORS

I. Stimulus Set by the Witness

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.”

Rule of evidence gives great weight to the findings of judges on the credibility of the witnesses who have appeared before them (being merely human witnesses of the witnesses)

II. Stimulus Set by Lawyers

brought about by the lawyer’s professional reputation and the lawyer’s professional bearing

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.

Stimulus from professional bearing stems from the lawyer’s respect and regard for his own

responsibilities as an officer of the court.

III. 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.

IV. Stimulus set by the Judge’s Predilections and Preconceptions

Through the judge’s legal sympathies (strong likings which arise from a judge’s community of experience, education, interests and even temperament.

Through the judge’s predilections – how the judge view his/her role.

Legal antipathies – settled aversions or dislikes for certain legal or political theories or ideas

V. 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.

VI. 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.

THE LAW AS THE PRODUCT OF THE JUDICIAL PROCESS

jR x mF) x (mlS x jP) = L

 

Legend: jR= jural rules mlS= metalegal stimuli

mF= material facts jP= judicial personality

EXCLUSION OF THE LEGISLATIVE AND EXECUTIVE FUNCTIONS

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” – John Chipman Gray

THE ADJUDICATIVE PROCESS AS THE PRIME MOVER

Until the adjudicative body applies the legal rules there is yet no law

The law is the force brought to bear upon the members of the community through the instrumentality of the adjudicative organ

THE LAW AND ITS PURPOSE

Considers the administration of justice as the end of the law

The law continues to be a rule of action for as long as it enjoys recognition

SOCIAL LEGAL REALISM

John Dewey (October 20, 1859 – June 1, 1952) American philosopher, psychologistEducational reformerPragmatismFunctional PsychologyProgressive educationLiberalismWriter

As being major topics needing attention and reconstruction to encourage experimental intelligence and plurality. Dewey asserted that complete democracy was to be obtained not just by extending voting rights but also by ensuring that there exists a fully formed public opinion, accomplished by effective communication among citizens, experts, and politicians, with the latter being accountable for the policies they adopt.

On 1859-1952 social legal realism is base, by John Dewey’s philosophy of education.

his line of thought is derived from David Hume’s theory that “knowledge is from experiential observation”.

Dewey made a long study of nature of the law as” through and through social phenomenon”

This covers the three distinct yet related issues

source of law,

the end or purpose of law

the application of law

Source of law

Dewey disagree with the natural source of law jurisprudence stating “unless a source higher and more fixed than that of experienced can be found, there is no sure ground for any genuinely philosophic valuation of law as it actually exist” for him this idea is not supported by any kind of practical experience. He had his own view that the law is the product of “on-going human activities and interactivities” social experience is the source of law for Dewey since all that the people can appreciate well is their own experiences.

Volksgeist explains the need to understand the interrelationship between law and people. Law and people cannot be isolated from each other . According to Savigny, the nature of any particular system of law, was the reflection of the “spirit of the people who evolved it”

End or purpose of law

Writers claim that Dewey has face a dichotomy means his idea has split into 2 completely different theory when it comes to end of the law. If the law is the product of the activities and interactivities of the people , the standard for judging the end or purpose of the law as well as its validity must depend on some axiological or non-empirical criterion therefore, the purpose of the law would be outside the domain of experiences of the people.

Application of law

“in the field modifying and/or maintaining human activities as going concerns there can be no law in the real sense” The law becomes a social control, to use or threat sanction for the attainment of social ends. Postulating the social aspect of the application of the law. Application of the law is not something after a rule or a statue by a necessary part of it so that in given cases we can judge what a law is, how it operates, what it affects upon human activities that are going on.

CRITICAL REGAL REALISM

Where it was formally organized?

First Conference on Critical Legal Studies in Wisconsin

In the Philippines, how and where it was introduced?

It was introduced as part of the course in Legal Theory in the College of law of the University of the Philippines.

THE TASKS OF A GOOD LAW SCHOOL ACCORDING TO THE

CRITICAL LEGAL STUDIES MOVEMENT

1. to provide a legal education that frees the minds of the professors and students alike from the grips of the dominant liberal paradigm

2. to deligitimizes the improper and illicit tie between law and politics

THE GURU OF THE MOVEMENT: PROF. ROBERTO MANGABEIRA

UNGER OF HARVARD UNIVERSITY

EXAMPLES OF THE CRITICS OF CRITICAL LEGAL STUDIES

MOVEMENT

1. Richard A. Posner – he contends that “the legal scholars are the illegitimate descendants of the modern legal realist school of jurisprudence.”

2. G. Edward White – states that the kinship claimed by the critical legal realist to the modern school of legal realism “is a grasp at legitimacy.”

3. Cornel West – brands critical realist as “the academic left subculture.”

POLEMICS AGAINST CRITICAL LEGAL REALISM

The legal realism of this jurisprudential movement is a critique directed against the discourse, agenda and practices of the“dominant legal paradigm…such as the ways in which the language of impartiality, objective due process, and value-free procedures which hide and conceal partisan operations of power and elite forms of social victimization.”

COMMON DENOMINATOR OF CRITICAL SOCIAL REALISM

AND CRITICAL LEGAL REALISM

1. the elitist tendencies of the dominant legal paradigm

2. the concealed intentions and judgments behind legal concepts and ideas which the dominant legal paradigm has managed to include, directly or indirectly , into the legal order, and

3. the belief that the system of distribution of the material and social goods is just and in the best interest of the people, and , therefore, inviolable.

DECONSTRUCTION OF DOMINANT LIBERAL PARADIGM

In the hands of the critical legal realists, deconstruction is the technique of:

1. stinging analysis of the traditions, that is to say the ideas, beliefs, attitudes, and propensities of the dominant liberal paradigm, and

2. reformation of the traditions of the dominant liberal paradigm through the presentation of the rationale or justification for the censure and the offer of alternative solutions.

Take Note:

Deconstruction is distinguished from delegitimation which is the technique of unmasking the illicit tie between law and politics.

TRANSFORMATIVE CONTENT OF POST-LIBERAL ORDER

Critical Legal Studies Movement – takes courage and comfort in the thought that people have kept on visionizing as they have done in the past and all is not waste.

There is neither exact formula nor detailed blueprint of the structure of the post-liberal order. The general statement however, is not to repeat the errors of the past.

Each society has its own distinct needs and social temper. Thus, the details of the post-liberal order will be dependent of such temper and needs

Roberto Unger points out two considerations that must be taken into account in the conceptualization of the transformed socio-legal order.

1) the post-liberal socio-legal order must not fall hostage to any faction therein; and

2) the transformed socio-legal order must always be alert for opportunities to eliminate divisions and hierarchies in society

To avoid the first and to realize the second, Roberto Unger proposes:

1. Decentralization of Government

The critical legal realists say that the legal ordering of the society is hampered by too much check and less balance and a lot more undue process of law in the execution of projects and activities especially in the area of exercise of executive power vis-à-vis use and practice of legislative power

2 Factors stand out (problems):

1. The avid competition for social and material goods.

2. The extemporaneous and irresponsible uses of governmental powers.

The resolution:

1. Branches of government, regardless of number, should be designed to be accountable to the people.

2. Greater dispersal of governmental powers, function and powers down to the regional level of society.

3. Quick and clear resolutions of conflicting or overlapping interests among branches of government.

4. Concerned with the party in power.

2. Reorganization of the Market Economy

The market is controlled by the mega-business with interlocking satellite businesses and other forms of economic ventures. The small- and medium-scale business could hardly penetrate the market. Thus, the principle of equality of opportunity is hardly realized, resulting to a divided society.

2 Constraints:

1. the possibility, not entirely remote, of the merger of domestic entrepreneurs into another hierarchy of market organization.

2. the rapid population growth which puts a severe and continuing strain on the natural resources.

3. Reconstruction of the System of Rights

The critical legal realists state that the liberal concept of rights and obligations is based on the elitist conditions of avid property holding stabilized by power and wealth.

In the post-liberal socio-legal order, new concepts of rights are introduced. These are:

1) the “resistance right”

2) the “destabilization right”

3) the “solidarity right”

4) the “market right.”

NATURE AND FUNCTION OF THE LAW

Critical legal realism has unleashed an intense challenge to the dominant liberal paradigm. It has been claimed that critical legal realism is “the most extensive and influential critique of liberalism in recent memory

PSYCHOLOGICAL LEGAL REALISM

an approach to the study of the nature of the law pursued by a small but vigorous groups of Scandinavian jurisprudents.

Axel Hagerstrom (1868-1939)

Vilhelm Lundstedt (1882-1955)

Karl Olivecrona (1893-1963)

Alf Ross (1894-1974)

CRITIQUE OF JUDICIAL LEGAL REALISM

Alf Ross raises that 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.

CRITIQUE OF LEGAL REALISM IDEOLOGY

Vilhelm Lundstedt

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

• points to the hazard of imparting objective existence to subjective ideas and notions and to do so is “to engage in monstrous contradiction”

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

Axel Hagerstrom

• legal ideology “is nothing but a private state of mind.”

Karl Olivecrona

• the propensity to objectivize abstract values in the analysis of the nature of the law and its component system of jural relations gives the wrong impression that such values have real basis when there is none.

NATURE OF LAW

Psychological legal realism – the law and its component system of jural relations are real because they are social facts, and the feeling of what is good for society. The law and its component system of jural relations are thus open to public evaluation.

Vilhelm Lundstedt – legal activities, that is to say legislation, execution of statutes, and adjudication of cases 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.”

Karl Olivecrona – the reality of law and jural relations as social facts is based on the general human feeling that what is good for society is paramount. Laws involve behavior patterns since they deal basically with the exercise of rights and performance of obligations.

Alf Ross – this psychological compulsion to obey the law as “a general behavior feeling and attitude of complying with and respecting the existing order of things.”

JURAL RELATIONS

the basic jural relationship of individuals to other individuals and of individual to the state.

In psychological legal realism, when a person enjoys a “right”, someone, somewhere, sometime has the burden of the correlative “obligation”.

The Scandinavian legal realists question the assertion that jural relations exist due to the guarantee of legal enforcement by the courts.

For Scandinavian legal realists, jural relations must be analyzed on the basis of psychological realism. In the case of “right” and its correlative “obligation”, their reality must be based on the feeling of ascertaining a position of advantage and the feeling of complying with the prestation constituting the undertaking.

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

Jerome Frank explained:

Personal element, whether one likes it or not , is an inherent part of the decisional process under any form of government.