Realism- Jurisprudence I

8/3/2019 Realism- Jurisprudence I

1/31

REALISM

Introduction

Its origins and growthRealism in the American legal system

The rules of scepticism

The facts of scepticism

Conclusion


2/31

REALISM

Introduction:

The American Realist movement grew during the 1930s from thephilosophical views associated with James and Dewey. Both rejected closed

systems, pretended absolutes and origins and turned towards facts, actionsand powers.

The realists studied law on the basis of rejection of myths and preconceivednotions and on the acceptance of recording accurately things as they are, ascontrasted with things as they ought to be. A true science of law demands astudy of law in action. Law is as law does.

According to the realists, law consists of a body of generalisations about theconduct of judges or officials. For example Cook treats rules as descriptionsof past decisions. He states: This past behaviour of the judges can bedescribed in terms of certain generalisations which we call rules and

principles of law.

To Holmes, he viewed law as a set of consequences. He said that: The lifeof law has been, not logic, but experience. He treats rules as prophecies

of future decisions. He observes: The prophecies of what the courts will doin fact, and nothing more pretentious are what I mean by law.


3/31

REALISM

Introduction: (Continuation)

Law is, according to the realists jurists, what officials (judges) do; it is not tobe found in, and cannot be deduced from, the mere rules by which thoseofficials are guided. An investigation of the unique elements of cases, anawareness of irrational and non-logical factors in judicial decision-making,an assessment of rules of law by an evaluation of their practicalconsequences- these are some of the characteristics of the realist approach.

The main concern of the realist movement was the desire to discover howjudicial decisions were reached in reality, which involved a playing down of

the role of established rules, or the law in books, to discover other factorsthat contributed towards a judicial decision, in order to discover the law inaction. Once the realists had deciphered the factors that lead to judicialdecisions, both non-legal and legal, they were concerned with the predictionof future decisions to be made.

In addition to the above, they were of the opinion that judicial decision-making would be more amenable to the needs of society if judges were more

open about the non-legal factors which had influenced their decisions.


4/31

REALISM

Its origins and growth:

In the 19th and the beginning of the 20th century, there was a

blatant discrepancy between the form of the law and itstheoretical logic and sociological reality; in the mid-twentieth century, there has been a rise of the trade unionsand the economic influence of the states; pragmatism hasalso greatly influenced realism. Pragmatism regards

practical consequences as the criterion of value and truth.The realist movement is a combination of pragmatism andsociological approaches. In America, the doctrine of

judicial review and the due process clause were the centreof the legal system in courts and were therefore, realismsconcentration of attention on the judicial process.


5/31

REALISM

Its origins and growth: (Continuation)

Furthermore, it should also be noted that in the last decades of

the 19th

century there prevailed both in the US and on thecontinent, a theory of law described as positivism. Law wasthought of as more or less as a fixed body of rules and principlesto be studied in terms of their semantic meaning or otherhistorical context. Llewellyn described this period as that offormalistic style, as a period in which there prevailed a

predilection to rely on traditional authorities and on thedeductive method in decision making. He stressed that this trendof jurisprudence stood in strange contrast to the variousdevelopments, which were transforming everything in theindividual and social spheres. Consequently, the trend of legalthinking took a sharp turn into a different direction.


6/31

REALISM

Its origins and growth: (Continuation)

It is therefore important to note that this trend of legal thinking gave birthto legal realism. For example, in the US today, analytical and historicalschools have been assailed and supplanted by a new idealism whichconsiders law as an instrument for the attainment of social objectives. It isheld that fixity and certainty of law must give way, wherever necessary,to overriding considerations of individual justice or social need. There is aswing of pendulum from the legal norms to the decision, from officialopinion to the true reasons, from conceptual jurisprudence to facts of lawand social interests. This new orientation in legal philosophy is styled aslegal realism.

All in all, the origins and growth of realism i.e. American realism cameinto the scene as a result of being pointed out that the traditional analysisof legal problems in terms of remedies, rights and interests, andconceiving law as a body of rules were a block to clear thinking aboutthings legal, and generated ambiguity. Hence, this approach saw anothersuggestion being suggested that legal science should concern itself with

law conceived as human behaviour instead of a mere body of rules andconcepts.


7/31

REALISM

Realism in the American legal system:

First and foremost, realism in the American legal system can best beunderstood by way of making reference to some American jurists. The

following are some of the notable jurists:(a) Holmes (1841-1935)

This founder of the American realist movement said that the life of lawis experience, not logic. He treats rules as prophecies of futuredecisions. He observes: The prophecies of what the courts will do infact, and nothing more pretentious are what I mean by the law.

According to Holmes, if we wish to know the law, we should look at itthrough the eyes of a bad man who is only concerned with what willhappen to him if he does certain things. Thus, Holmes views laws as aset of consequences. We can understand the law when we can predictwith some certainty the outcome of the behaviour of the courts when

presented with legal problems.


8/31

REALISM

Realism in the American legal system: (Continuation)

(a) Holmes (1841-1935)

Furthermore, to Holmes, analysis must exclude moral questions. He thus urgedthe deliberate exclusion from ones study of law of every word of moralsignificance. This was not a rejection of the significance of societys moralstandards in the creation of law; these standards are to be regarded as of littleconsequence in any analysis of operational matters. The jurist ought to attemptto use only words which will convey legal concepts uncontaminated by extra-legal ideas. Thus, to introduce into discussion of the law of contract a conceptsuch as irrefragable undertakings, with its lofty overtones of moralsignificance, is to muddy the waters of scientific examination.

It is also important to note that Holmes draws attention to the significance of ajudges interpretation of the public policy underlying the law, the judgesinarticulate major premise. He emphasises, as a counter-balance, the need toinsist upon the process of law-making as the business, not of the court, but thelegislative bodies within the community. The tendency towards judicial law-making has to be restrained; citizens have the right to make, through theirelected representatives, whatever laws they consider to be necessary. Hence,

judges must be reminded of their duty to weigh considerations of socialadvantage when enunciating or interpreting rules.


9/31

REALISM


(a) Holmes (1841-1935)

In addition to the above point or issue, Holmes argued that the

training of lawyers ought to lead them, and judges, habitually toconsider more definitely and explicitly the advantages to society ofthe rules they lay down. Hence, the working of the legislature and thecourts should not be seen in isolation from the societies from whichthey spring and from which alone they derive their significance.

It should also be pointed out that Holmes view should not be

interpreted as implying a rejection of legal theory. The pragmatismwhich he embraced is, in itself, a theoretical interpretation ofperceived reality. He believed that we have too little theory in law,rather than too much. His insistence upon the continuous re-examination of rules and procedures and the rejection of that which isoutworn is not an attack on theory as such. Theory, he wrote, is themost important part of the dogma of law. One cannot predict

correctly save on the basis of valid principles and theory.


10/31

REALISM


(a) Holmes (1841-1935)

All in all, any analysis of Holmes work must include at least three

central elements. First, Holmes, as a Supreme Court Judge, was (notsurprisingly) a profound believer in defining the law by reference towhat the courts actually said it was. This is especially evident in hisfamous address The Path of the law which he delivered to lawstudents in 1897. He warned them to distinguish clearly between lawand morality: consider what the law is, not what it ought to be (shadesof legal positivism). Secondly, in developing his view, he introducesthe device of the bad man: If you want to know the law andnothing else, you must look at it as a bad man, who cares only for thematerial consequences which such knowledge enables him to

predict. Thirdly, Holmes firmly believed that legal developmentscould be scientifically justified: the true science of law, he argued,consists in the establishment of its postulates from within upon

accurately measured social desires instead of tradition.


11/31

REALISM


(b) Frank (1889-1957)

He followed the path charted by Holmes. He counted himself aconstructive fact-sceptic (those who doubt that facts play anyrole in the decisions), who found legal certainty as arising fromthe elusiveness of facts, in contrast to the rule sceptics whofound legal uncertainty to be a product of the laws formal rules.

Based on his analysis of rule sceptics (those who doubt that rules

decide cases e.g. Llewellyn is a representative of the rulesceptics) and fact sceptics (they doubt that facts play any role inthe decisions), Frank says that facts are not objective. They arewhat the judge think they are. And what he thinks they aredepends on what he hears and sees as the witnesses testify-which may not be, and often is not the same as what another

judge would hear and see.


12/31

REALISM


(b) Frank (1889-1957)

According to Frank, law could not be separated from the decisions of thecourts; hence it was necessary to understand the bases of judicial decisions, and

this required an investigation of a variety of factors, often an irrational naturesuch as emotions, hunches (motives, background and character). Frank saysthat the way in which the judge gets his hunches is the key to the judicialprocess. Thus, Frank felt to disclose the reality of court-houses because withoutpublic knowledge of the realities of court-house doings, essential reform ofthose doings will not arrive soon.

In addition to the above, Frank also address the relationship between the courts

and facts. To him, the law is, in relation to a set of facts, a decision of the courtrelating to those facts. Hence, until the court has given its decision, no lawconcerning those specific facts is in existence. So, in his workLaw & theModern Mind(1930) he had this to say: No one knows the law about any caseor with respect to any given situation, transaction or event, until there has beena specific decision (judgment, order or degree) with regard thereto. In otherwords, to Frank, law is actual specific past decisions, and guesses as to the

actual specific future decisions. Thus, law may be categorised as actual law(past decisions) or probable law (guesses as to future decisions).


13/31

REALISM


(b) Frank (1889-1957)

Furthermore, Frank reasoned that before the making of such a

decision, the only relevant law available is a lawyers opinion- amere guess as to what the court will decide. Hence, the law isessentially uncertain. Frank argued that if lack of certainty wasfundamental to natural sciences, it was absurd to expect evenapproximate certainty or predictability in the law. Frank holds that itis a basic legal myth to think that law can be relatively permanent andfixed. Since law deals with human affairs, it is absurd to realise evenapproximate certainty and predictability in law.

According to Frank, the search for certainty in law arisesfundamentally from the search of a father figure and reflects thechildish need for an authoritative parent. Frank urged jurists to rejectthe infantile search of a father figure and follow completely adult

jurists, such as Holmes.


14/31

REALISM


(b) Frank (1889-1957)

Rules, according to Frank, are no more law than statutes are law. Rulesare mere words, and, in any event, the court will indicate what rules

mean, whether contained within a statute or implied in the opinion ofsome other court. Rules are not to be found at the basis of a judgesdecisions: those decisions may be arrived at before he finds a reason forthem. The reasons he gives later may be no more than a rationalisation ofhis intuitive feelings. Since knowledge of the rules alone is of limitedvalue in predicting the outcome of a trial, it is necessary to turn forguidance to study other matters i.e. Prejudices or judicial hunch.

Regardless of Franks scepticism as to the reliability of trial procedures inthe process of discovering the essence of law, he was concerned with thequestion of attaining justice as the end of those procedures. He urged,therefore, the enlargement of the bounds of judicial discretion so thatrules might be made more flexible in individual cases. Every legalhearing is, in a sense, unique, and a judge ought not to be tied to the

demands of rigid universals and abstract generalisation. This is essentialif justice is to be unblindfolded.


15/31

REALISM


(b) Frank (1889-1957)

It should be noted that Frank was criticised based on what he has said

about law or its operation. The following are some of the criticisms:i. Franks view of uncertain judicial hunch, leading to the

unpredictable, personalised decision has been criticised. It issuggested that Frank unduly magnifying personal and accidentalfactors and seeking to deny the relevance of certain significantdeterminants in the legal process. Law is not a mere mass of

unrelated decisions, nor is it a product of judicial bellyaches. Judgesare trained in disciplined modes of thinking and conduct and theyoperate within a system in which precedent is potent and theimportance of rules is obvious. Cohen has suggested that decisionscannot be interpreted validly as mere expressions of individual

personality; they can be viewed as a function of social forces, that is,a product of social determinants and an index of social consequences.


16/31

REALISM


(b) Frank (1889-1957)

It should be noted that Frank was criticised based on what he has said

about law or its operation. The following are some of the criticisms:ii. His cult of single decision has been criticised. For Frank, the law

consists of decisions: the single judgment in a given case is the law.Prior to that decision, the only law available rests, presumably, on theguesses of lawyers as to what, in the particular circumstances, thecourt might do. Franks formulation ignores the significance of

agreed rules, conventions, judicial protocol, in the administration ofa law which has its basis in an accepted repertoire of responses withindefined limits.

iii. General objections to Franks perception of the significance ofuncertainty in law have been raised by jurists who doubt theaccuracy of his methods of analysis. It seems that much of hisevidence for the role of the hunch rests on anecdote. There is littleempirical evidence to support his wider conclusions.


17/31

REALISM


(b) Frank (1889-1957) It should be noted that Frank was criticised based on what he has said

about law or its operation. The following are some of the criticisms:iv. To criticise Frank is not to deny that judges hunches may affect their

decisions; but judges do have common standards by which facts and theirsignificance are evaluated. Further, there are areas of law within which

judges may not exercise discretion. Precedent and statutes often provideclear rules which are intended to be followed. Hence, Franks stark viewthat, fundamentally, there is no certainty in the law, save in a trivial sense,

is not easy to accept without considerable qualification. Communal life inour society is based on the necessity for regularity and certainty inrelation to the operations of the legal system.

v. The maintenance of complex social structures does demand from the lawa general trend towards certainty: that is not to be denied. But this is along way from Franks assertion concerning the role of legaluncertainty.


18/31

REALISM


(c) Gray (1839-1915) He defined jurisprudence as the science which deals with the principles

on which courts ought to decide cases... it is the statement and systematicarrangement of the rules followed by the courts and of the principlesinvolved in those rules. Thus, the law of the State or any organised

body of men is composed of the rules which the courts, that is, thejudicial organs of that body, lay down for the determination of legalrights and duties. Hence, this could be said as Grays views on thesignificance of rules in the legal system.

According to Gray, his approach to judicial interpretation is that thejudges settle what facts exist and also lay down rules according to whichthey deduce legal consequences from facts. These rules are the rules oflaw. Gray cites with approval the words of Bishop Hoadly, preaching in1727 before George I: Whoever hath an absolute authority to interpretany written or spoken laws, it is he who is truly the law-giver to allintents and purposes, and not the person who first wrote or spoke them.


19/31

REALISM


(c) Gray (1839-1915)

Gray distinguishes between law and sources of law. He views the

law as composed of the rules laid down by the states judicial organsfor the determination of rights and duties. Everything else, includinga statute, are only sources of law until used as a basis of decisions bythe courts.

Gray sums up his views on rules, thus: The State exists for theprotection and forwarding of human interests, mainly through themedium of rights and duties. If every member of the State knew

perfectly his own rights and duties, and the rights and duties ofeverybody else, the State would need no judicial organs;administrative organs would suffice. But there is no such universalknowledge. To determine, in actual life, what are States and citizensrights and duties, the State needs and establishes judicial organs, the

judges. To determine rights and duties, the judges settle what facts

exist, and also lay down rules according to which they decide legalconsequences from facts. These rules are law.


20/31

REALISM


(c) Gray (1839-1915)

It is important to note that regardless of what Gray said i.e. aboutthe significance of rules in the legal process, his views did notescape from criticisms. For example, Gray was criticised byCardozo, in The Nature of the Judicial Process (1921) on thegrounds of uncertainties inherent in his view that statutes aremerely sources of law which judges utilise in the exercise of a

law-making function. In that view, says Cardozo, even pastdecisions are not law. The courts may override them.


21/31

REALISM

Realism in the American legal system: (Continuation)(d) Llewellyn (1893-1962)

He is claimed to have introduced the term realistic jurisprudence

into modern legal literature in his 1931 essay on A RealisticJurisprudence- the Next Step. He stressed that there was no school ofrealists and the so-called realist movement was merely a fermentamong some of those American jurists calling for a dynamic

jurisprudence.

Realism is, he said, a method, nothing more, and the only tenetinvolved is that the method is a good one. Hence, he claimed that hisversion of realism was not a philosophy but a technology and thatswhy it is eternal.

According to Llewellyn, law is never static; it is to be considered as ameans to a social end; continuous examination is essential; is andought must be divorced for purposes of legal study; traditionalconcepts are rarely an adequate explanation of law in action, law has

to be evaluated in terms of its social impact.


22/31

REALISM


(d) Llewellyn (1893-1962)

Based on the above approach taken by Llewellyn, he thusargued that conflicts in society are not resolved by wordsand rules but by officials, whether they be judges orsheriffs or clerks or jailors or lawyers. He says, whatthese officials do about dispute is, to my mind, the lawitself. What the judge is going to do in deciding a case

before him is much more important than any rule he maycite to sustain his action. Hence, a basic premise ofLlewellyns concept of law is its interpretation as a meansto social ends. The law may be considered as an engine,having certain purposes, but no values in itself. The socialends of law are assisting the very survival of society andaiding the search for justice and a richer existence.


23/31


24/31

REALISM



According to Llewellyn, the basic functions of the law- the execution of

law jobs are related to social ends. If society is to survive, organisation ofsocial matters must be effected and kept effective. Five fundamental lawjobs have emerged, and they are considered by Llewellyn as universal andessential for most societies and groups.

i) The disposition (i.e. adjustment) of trouble cases, perhaps the mostimportant of the law jobs. He referred to this job as garage repair work.Work of this type- the resolution of disputes, the settling of grievances-

acts as a test to decide which legal rules prevail in the real world.ii) The preventive channelling of conduct and expectations in areas of actual

or potential conflict. This is intended to head off collisions andconsequent disputes.

iii) The allocation and exercise of authority or jurisdiction within society,which Llewellyn refers to as arranging the say, and its saying. It results

in the settling of procedures which legitimise subsequent action (e.g.Systems of judicial decision)


25/31

REALISM


The basic functions of law (law jobs) are:

iv) The provision of directive and incentive through the organisation of society as awhole, which involves the total effect of the three previously listed law jobs; inLlewellyns phrase, the Whither of the net Totality.

v) The provision an appropriate juristic method, which involves law astechnology, and embraces the maintenance and improvement of law structuresand the traditions and skills of the official craftsmen of the law.

Llewellyn explains that around the performance of various clusters of law jobs

will grow distinct activities from which it will become possible to discern andanalyse the stuff of law. When men begin to specialise in these activities itbecomes possible to recognise the men of law. From the conjunction of menand activities in relation to law jobs there will emerge the craftsmen of the lawand their crafts. The crafts of the law, which Llewellyn characterises as forminga minor institution, include advocacy, adjudication, law-making; these areessentially the specialities which, through education and example, aretransmitted from one generation to another in the form of organised, methodicalgroups of skills.


26/31

REALISM


According to Llewellyn, one of the most important crafts of law is judicialreasoning. He provides a detailed study of two, polarised, aspects of judicial

reasoning i.e. grand style and formal style. The grand style derives fromthe judges appeal to reason. It attempts to minimise uncertainty and seeks toreduce any perceived conflict between demands of justice and the commandsof authorities; it produces, and improves on, rules which make sense on theirface. For example, precedent is not followed without good reason, andattention is paid to principle in evaluating the weight to be given to past,relevant decision. On the other hand, the formal style, which can be discerned

in the execution of the law job related to the settling of disputes, owes much toreliance on rules of law rather than to any perception of the demands ofpolicy (which concern the legislature in particular). The formal style is oftencharacterised by the deductive form of reasoning and expressions of whatLlewellyn termed single line inevitability. This style seems to have dominatedthe American courts during the second half of the nineteenth century. But, hewarned, the influence of the formal style has not lost its grip; it continues tooffer a standard style for the writing of judicial opinions, although its ancientaspect of a deep, unquestioned and powerful faith is no longer as pervasive asit once was.


27/31

REALISM



It should be noted that in the later stages of his researches,Llewellyn attempt to counteract a growing lack ofconfidence in the American system of appeal courts, as aresult of what he perceived as the death ofstare decisisand the general concern with unpredictability of decisions.

He discovered in the workings of the appeal courts areckoning quality: judges were not merely capricious intheir use of precedent but were guided by a situationsense which was producing a kind of stability in theoperation of those courts.


28/31

REALISM


Regardless of Llewellyn views, it is important to note that he was criticised as

well. The criticisms are: (i) His lack of attitude to the significance of ruleswithin the legal process has been rejected as based on an incorrect perceptionof the function of rules. A judge who ignores rules as a guide to action may besubstituting mere arbitrariness for certainty. The reality is that rules are studied,are observed and are rarely neglected. Indeed, the judge is himself a product ofrules, (ii) His emphasis on the dichotomy of words and actions in theformulation of judicial decisions has been condemned as bizarre andunrealistic. We are asked to distinguish the judges action from his realintentions and meanings, but how this is to be done is not clear. Fuller asked:just what do we mean by judges actions as distinguished from intention andmeaning? Is it a movement of the arms or jaw? Is it a movement at all, and ifnot, what is it? Is it possible to describe a judges actions without referring inthat description to his reasoning? (iii) The critics criticised his formulation oflaw and said that the definition lacks any informational content. What ifofficials act illegally? Would their actions form a part of the law?


29/31

REALISM

The facts of scepticism: As illustrated above Frank was the main fact sceptic. The fact sceptics doubt

that facts play any role in decisions. The fact sceptics have their primaryinterest in trial courts. For example, Frank says that facts are not objective.They are what the judge thinks they are. His point was that if we take normalmode of judicial decision-making as the application of legal rules to the facts ofa case then, even if the rules are clear, such as not parking on a double yellowline, or obeying the speed limit or driving on the left-hand side of the road, it isstill not possible to predict with certainty which way the trial court will decidesimply because of the elusiveness of the facts.

In addition to the above, Frank points to two main groups of elusive factors

which cannot be captured by any predictive theory based on observation of thebehaviour of the courts. First, the trial judge in a non-jury trial or the jury in ajury trial must learn about the facts from the witnesses; and witnesses, beinghumanly fallible, frequently make mistakes in observation of what they sawand heard, or in their recollections of what they observed, or in the court-roomreports of those recollections. Secondly, the trial judges or juries, also human,may have prejudices often unconscious, unknown even to themselves for

against some of the witnesses, or the parties to the suit, or the lawyers.


30/31

REALISM

The rules of scepticism:

Rule sceptics- those who doubt that rules decides cases. Llewellyn isrepresentative of the rule sceptics. Rule sceptics have interests inappellate courts. Rule sceptics with their predictive models assumed thatthere is an ascertainable set of facts, otherwise attempts at predicting theresults of court cases by looking at the real rules would not have been

possible. Frank denied that there is this certainty in the judicial processand that if his model is followed there is no way in which predictions can

be made. In addition he denied that the rule sceptics could include withintheir real rules the second set of elusive elements he identified, whichincluded the racial, religious, political or economic prejudices of the

judge and jury.

Furthermore, Frank argued that in a trial court the law and the factsbecome intertwined- there is not a simple application of the law to thefacts, instead the law emerges in adversarial manner just as the facts do.When the jury comes to its verdict, they do not distinguish between lawand fact, and in this state of confusion they decide the case on other

grounds i.e. act on their emotional responses to the lawyers andwitnesses; they like or dislike, etc.


31/31

REALISM

Conclusion:

Realism is a valuable extension to the work of the

sociologists. They uncovered personal factors. Theyfurnished a penetrating insight into the judicial process. Forexample Llewellyns contribution to American realism was

based on his insistence that rules had to be considered byexamining the way in which they worked. His concept oflaw jobs remains significance. The uncovering of the

functions which the law sets out to perform in pursuit ofsocial ends draws attention to law as a means to an end- anessential feature of the general interpretation of lawfavoured by American Realists.

Documents

Realism- Jurisprudence I