The Legal RealistPerspectiveKim Caurtero Noelle MaicoClem Villamor Babie Grace BauyabanCarmel Alocillo Nile DelvoFeona Pitalcorin Ray LambertMenchavezChristine Joymarie PeriasGroup 8:
CONSTRUCTIVE SKEPTICSCharacterized by a healthy skepticism about the role ofrules, facts, and judicial opinions in the legal ordering ofsociety.3 Distinct Groups1. Rule Skeptics2. Fact Skeptics3. Opinion skeptics
1. Rule SkepticsQuestion the notion of the legal formalists that legalrules are precise and can be applied easily in any givencaseDispute the claim that legal rules by themselvesdictate the or decision of a case.“Rule skeptics feel that legal formalism has shunted to thebackground the relevant though inarticulate premises anduncommunicated reactions of those involved in conflicts ofinterests, namely the parties, the witnesses, thelawyers, the adjudicating officials, and even the communityitself.”
2. Fact SkepticsAppreciates the role of appellate court decisions inthe prediction of what courts will do. But they deplorethe overemphasis given to appellate court decisionsand consequently, the lack of attention to theactualities happening in the trial courts.To illustrate the fact skeptics point into a crude schematic ofthe decisional process:R × F = DWhere R is the rule, F the facts and D the decision orjudgment.On this basis, an erroneous F will lead to an erroneous D.“ No matter how excellent the legal rules and social policiesthey embody, specific decisions will go astray, absentcompetent fact-finding.”
3. Opinion SkepticsMostly deals with the role and effect of metalegalstimuli on the judicial personality.Litigants present a set of conflicting major andminor premises for each and every issue theyargue about. In considering which of thesecontradictory premises, rules and citations arecorrect or reliable, appellate courts may and domake mistakes in the process.“ The rationalization of a court even when on the basis ofthe material facts, the relevant rule and the actual issueor issues in a case may qualify as judicial precedent onlywhen it is confined from molar to molecular motion”
ROLE OF MATERIAL FACTS“Whether a judge considers certain facts asirrelevant or assumes the existence of certain factswhich may not even be in the record of the case, thepoint is that the material facts are no more or lessthan what the judge they are.”
ROLE OF EXPERIENCE ANDSOCIAL ADVANTAGElaw is a statement of the circumstances in which thepublic force will be brought to bear upon men throughthe courts.the law is not an exclusive product of logic. Logic hasnot been the life of the law for one can give anyconclusion a logical form. The premise must first haveto be valid, that is to say based on social advantagebefore a correct conclusion can be drawn.the point is that there are human factors involved inthe legal ordering of society. These factors areunavoidable, especially in the hard cases.
ROLE OF METALEGAL STIMULIAttention is focused on the empirical factors whichunderlie the judicial process. Stress is given on thepredictory use of court decisions in light of the influenceexerted, in fairly uniform manner, by certain metalegalfactors on the adjudicating officials.Formalist vs. Realist ConceptFormalist ConceptDecisions follow on the basis of stare decisis.In this model, the decisive legal rule serves as themajor premise, the material facts constitute theminor premise and the decision is reached strictlyby deductive reasoning.
In this model, the decisive legal rule serves as themajor premise, the material facts constitute the minorpremise and the decision is reached strictly bydeductive reasoning.Realist ConceptWhat the courts will do in fact is not achieved only bythe interaction of the rules on the facts.There is a human equation in the life and process ofthe law.Metalegal stimuli not only provides the means forcreative thinking but also the setting and justification forthe play and action of what Holmes called “experienceand social advantage.”
SOURCES OF METALEGALFACTORSI. Stimulus Set by the WitnessTestimonies of the witnesses constitutes the axis onwhich the decision of a judge may turnthe stimulus set by the witness on the judge isprincipally the result of theirstatements, gestures, manners, moods, hesitation, embarrassment, grimaces“what is deemed reliable testimony depends upon theunique reaction of a particular trial judge to theparticular witness in a particular trial case.”Rule of evidence gives great weight to the findings ofjudges on the credibility of the witnesses who haveappeared before them (being merely humanwitnesses of the witnesses)
II. Stimulus Set by Lawyersbrought about by the lawyer’s professionalreputation and the lawyer’s professional bearingProfessional reputation brings to it the lawyer’ssincerity and inclination for the “right” and “fair”cases and the intrinsic validity of the lawyer’stheory of a case, his arguments on the lawand the material facts involved.Stimulus from professional bearing stems fromthe lawyer’s respect and regard for his ownresponsibilities as an officer of the court.
III. Stimulus Set by the Judge’s Legal Attitudes andPrejudicesthese are the stimulus coming from the sum of thejudge’s inclination or bent on the matter in dispute.IV. Stimulus set by the Judge’s Predilections andPreconceptionsThrough the judge’s legal sympathies (strong likingswhich arise from a judge’s community ofexperience, education, interests and eventemperament.Through the judge’s predilections – how the judgeview his/her role.Legal antipathies – settled aversions or dislikes forcertain legal or political theories or ideas
V. Stimulus Set by Historical Events and PoliticalPrecedentsthe prevailing sentiments under a particular event orpolitical precedent may affect the way a judge rationalizeshis/her decision.VI. Stimulus Set by Current Social Values and EconomicPostulatesdecisional behavior of a judge may be influenced by his orher social or economic outlook.judges are human beings and they cannot isolatethemselves from current social values and economicpostulates.
THE LAW AS THE PRODUCT OF THEJUDICIAL PROCESSjR x mF) x (mlS x jP) = LLegend: jR= jural rules mlS= metalegalstimulimF= material facts jP= judicial personality
EXCLUSION OF THE LEGISLATIVEAND EXECUTIVE FUNCTIONSthe ultimate authority in the interpretation andapplication of legal rules is the judicial organ“Statutes enacted by the legislature and the ordersissued by the executive department are onlysources of law” – John Chipman Gray
THE ADJUDICATIVE PROCESS AS THEPRIME MOVERUntil the adjudicative body applies the legal rulesthere is yet no lawThe law is the force brought to bear upon themembers of the community through theinstrumentality of the adjudicative organ
THE LAW AND ITS PURPOSEConsiders the administration of justice as the endof the lawThe law continues to be a rule of action for aslong as it enjoys recognition
As being major topics needing attention andreconstruction to encourage experimental intelligenceand plurality. Dewey asserted that completedemocracy was to be obtained not just by extendingvoting rights but also by ensuring that there exists afully formed public opinion, accomplished by effectivecommunication among citizens, experts, andpoliticians, with the latter being accountable for thepolicies they adopt.On 1859-1952 social legal realism is base, by JohnDewey’s philosophy of education.his line of thought is derived from David Hume’stheory that “knowledge is from experientialobservation”.
Dewey made a long study of nature of the law as”through and through social phenomenon”This covers the three distinct yet related issuessource of law,the end or purpose of lawthe application of law
Source of lawDewey disagree with the natural source of lawjurisprudence stating “unless a source higher andmore fixed than that of experienced can befound, there is no sure ground for any genuinelyphilosophic valuation of law as it actually exist” forhim this idea is not supported by any kind ofpractical experience. He had his own view that thelaw is the product of “on-going human activities andinteractivities” social experience is the source of lawfor Dewey since all that the people can appreciatewell is their own experiences.
Volksgeist explains the need to understand theinterrelationship between law and people. Law andpeople cannot be isolated from each other .According to Savigny, the nature of any particularsystem of law, was the reflection of the “spirit of thepeople who evolved it”
End or purpose of lawWriters claim that Dewey has face a dichotomymeans his idea has split into 2 completelydifferent theory when it comes to end of the law.If the law is the product of the activities andinteractivities of the people , the standard forjudging the end or purpose of the law as well asits validity must depend on some axiological ornon-empirical criterion therefore, the purpose ofthe law would be outside the domain ofexperiences of the people.
Application of law“in the field modifying and/or maintaining humanactivities as going concerns there can be no law inthe real sense” The law becomes a social control, touse or threat sanction for the attainment of socialends. Postulating the social aspect of the applicationof the law. Application of the law is not somethingafter a rule or a statue by a necessary part of it sothat in given cases we can judge what a law is, howit operates, what it affects upon human activities thatare going on.
CRITICAL REGAL REALISMWhere it was formally organized?First Conference on Critical Legal Studies inWisconsinIn the Philippines, how and where it was introduced?It was introduced as part of the course in LegalTheory in the College of law of the University ofthe Philippines.
THE TASKS OF A GOOD LAWSCHOOL ACCORDING TO THECRITICAL LEGAL STUDIESMOVEMENT1. to provide a legal education that frees the mindsof the professors and students alike from the grips ofthe dominant liberal paradigm2. to deligitimizes the improper and illicit tie betweenlaw and politics
THE GURU OF THE MOVEMENT: PROF.ROBERTO MANGABEIRA UNGEROF HARVARD UNIVERSITY
EXAMPLES OF THE CRITICS OFCRITICAL LEGAL STUDIESMOVEMENT1. Richard A. Posner – he contends that “the legalscholars are the illegitimate descendants of themodern legal realist school of jurisprudence.”2. G. Edward White – states that the kinshipclaimed by the critical legal realist to the modernschool of legal realism “is a grasp atlegitimacy.”3. Cornel West – brands critical realist as “theacademic left subculture.”
POLEMICS AGAINST CRITICALLEGAL REALISMThe legal realism of this jurisprudentialmovement is a critique directed against thediscourse, agenda and practices ofthe“dominant legal paradigm…such as theways in which the language ofimpartiality, objective due process, and value-free procedures which hide and conceal partisanoperations of power and elite forms of socialvictimization.”
COMMON DENOMINATOR OFCRITICAL SOCIAL REALISM ANDCRITICAL LEGAL REALISM1. the elitist tendencies of the dominant legalparadigm2. the concealed intentions and judgments behindlegal concepts and ideas which the dominant legalparadigm has managed to include, directly orindirectly , into the legal order, and3. the belief that the system of distribution of thematerial and social goods is just and in the bestinterest of the people, and , therefore, inviolable.
DECONSTRUCTION OF DOMINANTLIBERAL PARADIGMIn the hands of the critical legalrealists, deconstruction is the technique of:1. stinging analysis of the traditions, that is to saythe ideas, beliefs, attitudes, and propensities ofthe dominant liberal paradigm, and2. reformation of the traditions of the dominantliberal paradigm through the presentation of therationale or justification for the censure and theoffer of alternative solutions.
Take Note:Deconstruction is distinguished fromdelegitimation which is the technique ofunmasking the illicit tie between law and politics.
TRANSFORMATIVE CONTENT OFPOST-LIBERAL ORDERCritical Legal Studies Movement – takes courageand comfort in the thought that people have kept onvisionizing as they have done in the past and all isnot waste.There is neither exact formula nor detailed blueprintof the structure of the post-liberal order. The generalstatement however, is not to repeat the errors of thepast.Each society has its own distinct needs andsocial temper. Thus, the details of the post-liberalorder will be dependent of such temper andneeds
Roberto Unger points out two considerations thatmust be taken into account in the conceptualizationof the transformed socio-legal order.1) the post-liberal socio-legal order must not fallhostage to any faction therein; and2) the transformed socio-legal order must always bealert for opportunities to eliminate divisions andhierarchies in society
To avoid the first and to realize the second, RobertoUnger proposes:1. Decentralization of GovernmentThe critical legal realists say that the legal ordering ofthe society is hampered by too much check and lessbalance and a lot more undue process of law in theexecution of projects and activities especially in thearea of exercise of executive power vis-à-vis use andpractice of legislative power2 Factors stand out (problems):1. The avid competition for social and material goods.2. The extemporaneous and irresponsible uses ofgovernmental powers.
The resolution:1. Branches of government, regardless ofnumber, should be designed to be accountable tothe people.2. Greater dispersal of governmentalpowers, function and powers down to the regionallevel of society.3. Quick and clear resolutions of conflicting oroverlapping interests among branches ofgovernment.4. Concerned with the party in power.
2. Reorganization of the Market EconomyThe market is controlled by the mega-businesswith interlocking satellite businesses and otherforms of economic ventures. The small- andmedium-scale business could hardly penetratethe market. Thus, the principle of equality ofopportunity is hardly realized, resulting to adivided society.2 Constraints:1. the possibility, not entirely remote, of the mergerof domestic entrepreneurs into another hierarchyof market organization.
2. the rapid population growth which puts a severeand continuing strain on the natural resources.3. Reconstruction of the System ofRightsThe critical legal realists state that theliberal concept of rights and obligations isbased on the elitist conditions of avidproperty holding stabilized by power andwealth.
In the post-liberal socio-legal order, new concepts ofrights are introduced. These are:1) the “resistance right”2) the “destabilization right”3) the “solidarity right”4) the “market right.”
NATURE AND FUNCTION OF THELAWCritical legal realism has unleashed an intensechallenge to the dominant liberal paradigm. It hasbeen claimed that critical legal realism is “themost extensive and influential critique ofliberalism in recent memory
PSYCHOLOGICAL LEGAL REALISMan approach to the study of the nature of the lawpursued by a small but vigorous groups ofScandinavian jurisprudents.Axel Hagerstrom (1868-1939)Vilhelm Lundstedt (1882-1955)Karl Olivecrona (1893-1963)Alf Ross (1894-1974)
CRITIQUE OF JUDICIAL LEGALREALISMAlf Ross raises that there is over-reliance on the roleof the metalegal stimuli in the judicial process andoveremphasis on the vicissitudes of fact-finding inthe courts.CRITIQUE OF LEGAL REALISMIDEOLOGYVilhelm Lundstedt• complimented the legal realists for their efforts to“free themselves from all prejudices of legal ideologybased on abstract values.
• points to the hazard of imparting objectiveexistence to subjective ideas and notions and todo so is “to engage in monstrous contradiction”• The peril to be avoided in legal ideology is that itsintellectual patterns are abstract and vague.Axel Hagerstrom• legal ideology “is nothing but a private state ofmind.”Karl Olivecrona• the propensity to objectivize abstract values inthe analysis of the nature of the law and itscomponent system of jural relations gives thewrong impression that such values have realbasis when there is none.
NATURE OF LAWPsychological legal realism – the law and itscomponent system of jural relations are realbecause they are social facts, and the feeling ofwhat is good for society. The law and itscomponent system of jural relations are thusopen to public evaluation.Vilhelm Lundstedt – legal activities, that is to saylegislation, execution of statutes, andadjudication of cases are essential to the socialorder, and to assure the legal ordering of societythe law and its component jural relations must bebased on the “feeling for justice prevalent andcurrent within society.”
Karl Olivecrona – the reality of law and juralrelations as social facts is based on the generalhuman feeling that what is good for society isparamount. Laws involve behavior patternssince they deal basically with the exercise ofrights and performance of obligations.Alf Ross – this psychological compulsion to obeythe law as “a general behavior feeling andattitude of complying with and respecting theexisting order of things.”
JURAL RELATIONSthe basic jural relationship of individuals to otherindividuals and of individual to the state.In psychological legal realism, when a person enjoysa “right”, someone, somewhere, sometime has theburden of the correlative “obligation”.The Scandinavian legal realists question theassertion that jural relations exist due to theguarantee of legal enforcement by the courts.For Scandinavian legal realists, jural relations mustbe analyzed on the basis of psychological realism. Inthe case of “right” and its correlative “obligation”, theirreality must be based on the feeling of ascertaining aposition of advantage and the feeling of complyingwith the prestation constituting the undertaking.
METALEGAL FACTORSThese are factors that create conflicts of interestaffecting the judicial process.Their importance in the adjudicative process lies inthe reality that decisional behaviour is very likely tobe affected by them, obscurely orarticulately, unconsciously or avowedly.They are environmental in character and personal innatureJerome Frank explained:Personal element, whether one likes it or not , is aninherent part of the decisional process under anyform of government.