LEGAL REALIST Like the other groups of legal realist, Dewey broke with the

natural law theory in the determination of the ultimate

INTRODUCTION:
source of law. He simply could not accept the proposition of
• LEGAL REALISM the naturalist jurisprudents that “unless a source higher
and more fixed than that of experience can be found, there
It is used to describe the experiential or empirical
is sure ground for any genuinely philosophic valuation of
outlook of the juristic school on the traditional assumptions
law as it actually exist.”
on law and the legal order
Dewey postulated that the source of law cannot be found
“The Pragmatic Jurisprudence”
outside experience since this is all man living in society can
• CHARLES S. PIERCE : introduced it in 1878 know. In other words, all that man can understand must
• Was brought forward in 1898 by: have been the result of experience. He considered the
opinion of the naturalist jurisprudents that the source of
• Psychologist William James law is “something higher and more fixed than that of
• Educationist John Dewey experience” as impractical since no one has experienced
However it was introduced to the Legal Philosophy by : the metaphysical idealism of the natural law. As Plato so
Oliver Wendell Holmes aptly out, any representation of the perfect idea of the
“natural law” would only be an imperfect representation
• Pragmatic: is a matter of fact, it is a more practical thereof.
approach as opposed to idealistic.
• Pragmatism: is a practical approach to problems Thus, Dewey’s philosophy of law is that it is “social in
and affairs. origin.” Strangely enough this idea of Dewey has undertone
of Savigny’s volkgeist.
“It connotes that the function of thought is to guide actions
and that truth is pre-eminently to be tested by the practical For in the thinking of Dewey, the idea of the social origin of
consequences of belief.” law means that the immediate source of law is custom
which in turn is the embodiment of human activities and
LEGAL REALISM AS A DISTINCT JURISTIC interactivities and that its ultimate source is the experience
APPROACH itself of the people as group.
• It has its emphasis on the law in action. To put it in another way, a group of people in the
• It has been called the radical wing of the continuation of their society, recognizes and accepts the
sociological or functional school same desirable conclusions (customs) growing out of the
• It is concerned with the need for a thorough same collective experiences (usages). Dewey’s pragmatism
understanding of the actual operation of the legal here lies first in his attempt to overcome the opinion of the
order in terms of naturalist jurisprudents that the source of law can be found
◼ The socio cultural experience or the outside of society, e.i., in some transcendental, abstract
modern adjudicative process. idea and, secondly in his endeavor to limit the source of
◼ The social facts that contribute to the law to customs (activities) and usages (interactives) instead
social welfare and advantage of the total oblutiacs of the people.
SOCIAL LEGAL REALISM • What is an OBLUTIACS?
• Based on John Dewey’s Philosophy, he holds that: An acronym according Prof. Pascual which means the
• Knowledge is a part of experience involving peoples:
the intercourse of a living being with the
physical and social environment, and 1. Opinions
• Learning becomes effective and adequate to 2. Beliefs
the necessities of life only when it is 3. Longings
coordinated with experience. 4. Usages
• Therefore, SOCIAL LEGAL REALISM Is basically a 5. Traditions
pragmatic approach of a non lawyer to the study 6. Idiosyncracies
of the nature, as an effective means of social 7. Arts
control wherein law is viewed as : 8. Customs
9. Supertitions
❖ 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.
B. End or Purpose of Law
Source 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 • Thus, it was that during the last 60 years a
standard of the law in relation to the fact of the common growing concern for legal actuality has been
experience of the people arises. Again, if the source of law noticeable in the task of fashioning a more realistic
is the custom of the people, then the standard for judging jurisprudence by refusing to define law absent a
the value of law seems to depend on the non empirical, realistic concern for the legal process, legal
that is outside the domain of experience of the people. concepts and legal institutions.
• American Legal Realism based on John Chipman
Dewey concluded that this is the standard which
Gray
the law should meet rather than non-empirical principles
which are so conflicting with one another showing that they Intro:
do not flow from any priori standard. If this criterion of the
-According to Gray:
law, Dewey submits that it is the end or purpose of the
law- the deliberate achievement of individual and general “Law is not an ideal but something that actually exists. It is
moral happiness. Thus, upon these conditions the other not that which is in accordance with religion or nature or
members of society can and should be happy since regard morality. It is not which ought to be BUT that which is.
for “the happiness of others means regard for those
Gray differentiates law and “the law”:
conditions and objects which permit other freely to exercise
their own initiative, reflection and choice”. Law- ordinarily means a statute passed by the legislature of
a State.
C. Application of Law
The Law- whole system of rules applied by the courts.
In postulating the social aspect of the application of the
law, Dewey said that “ what is call application is not -according to Gray, any differentiation between “law” and
something that happens after a rule or law or statute is “the law” should be made between the law itself and its
laid down but is a necessary part of them; such necessary sources.
part indeed that in given cases we can judge what the law
is matter of facts only by telling how it operates and what -it is absurd and unclear to say that law is already present
are its effects in and upon human activities that are going and existing in its sources.
on.” -the law is what the court say it is and that statutes,
AMERICANLEGAL REALISM 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 -legislative acts or statutes are to be dealt with as sources
perspectives of law. Like the other prongs of modern legal of Law and not as part of the law itself.
realism, it doubts the ontological and transcendental -all the Law is judge-made law and not both legislative law
approaches to the problem of the nature of law or the legal and judge-made law.
in terms of the “law as it is” and the “law as it ought to be”,
respectively. - separation of law from its sources..

• The ontological or positivist school is criticized for - no rule or principle which the highest tribunal of a country
failing to see and observe legal realities in terms of refuses to follow is Law in that country.
modern judicial process and for giving undue -criticizes Austin’s idea that law is the command of the
emphasis on legal rules as the fundamental supreme political superior since it is the court that gives
sources of the law. The transcendental or true meaning and limits to a law.
teleological school, on the other hand, is faulted
for its over dependence on general proposition. - said that whoever had an absolute authority not only to
• They point that the history of jurisprudence has interpret the law but to say what the law is, is truly the Law
come to some kind of a dead end. To know the giver.
nature of the law and to solve the varied problems CONSTRUCTIVE SKEPTICS
connected with it by means of pre-conceived ideas
that are not derived from experience have only • The common characteristic of legal realism is
made knowledge about them quite confusing,if not skepticism about conventional theories of law and
possible. the legal process.

• The legal realist have become suspicious of the Characteristic of Legal Realists:
jurisprudence of concepts and of the jurisprudence 1. Rule Skeptics- they doubt and question the blind faith
of interest, where the same old symbols and given to legal rules.
principles are repeated even under the
embarrassing situation that they appear in pairs,  2. Fact Skeptics- while they appreciate the role of appellate
that is to say, a “plaintiff principle” and a court, they deplore the concentration given to these
“defendant principle”. decisions and consequently, the lack of attention to the
actualities happening in the trial courts.
 • It is clearly stated in this presentation: • Thus, stress is given to the predictor use of
• RxF=D decisions in the light of the influenced exerted, in a
• where R= rule, D= decision and F= Facts fairly uniform manner, by certain metalegal factors
• Hence, if Facts are erroneous, decision is likewise on the judicial personality of the adjudicating
erroneous. officials, whenever they sit in in judgment of the
conflicts of human activities and interactivities.
ROLE OF MATERIAL FACTS
Formalist Concept
• -In judicial realism, the concept of material facts is
a vital factor in the legal ordering. • The formalist concept of the adjudicative process
• -whether a judge considers certain facts as hinges on the application of the legal rule or rules
irrelevant or assumes certain facts which are on the facts of a case. The logical basis for
unrecorded, the material facts are no more than decision and the decision itself are then arrived at.
what the adjudicating officials say they are or • Holmes condemned this “black-and-white”
imply from what they think the facts are. approach. He stated that a “ a body of law ir more
• -the emphasis placed on this concept is both rational and more civilized when every rule it
recognition of and a concession to the demands of contains is referred articulately and definitely to an
changes. end which it serves, and when the grounds for
desiring that end are stated or are ready to be
ROLE OF EXPERIENCE AND SOCIAL ADVANTAGE
stated in word”.
• According to Oliver Wendell Holmes, Jr. law is
Modern Realist Concept
viewed as the expression of the force and
experience of society upon practically all of human • In modern ontological jurisprudence, the law is
activity through the agency of the courts whether determined by something more than legal rules
judicial or administrative. and facts. Without a consideration of the material
• An example of this is the famous case of Buck vs facts, the legal rules cannot even come into play
Bell. or application. In another way of saying it, there is
a general scepticism by modern realist
• The case involves the constitutionality of a state
jurisprudents in the sufficiency of these elements
sterilization (surgical removal of reproductive
of the judicial process.
organs)The facts involved a feeble-minded woman
who was an inmate in a State mental institution. • The earlier generation of the formalist
Her mother was also feeble-minded, and she has jurisprudents would have been shocked by this
an illegitimate child who was likewise feeble- type of realism but is a fact that in the great
minded. majority of the hard and important cases the
• -In this case, Holmes opined that it is better for the courts have readopted legal rules and legal
world to let society prevent those who are principles, circumstances, and value-patterns of
manifestly unfit from producing offsprings of their the time to keep the law alive. Thus, courts have
kind than to wait and later execute those offspring divided and will continue to divide in deciding
for crime or let them starve for their imbecility. conflicts of interests even when the same legal
rules are applied to the same facts. Indeed, the
• -according to Holmes, the true grounds of decision
courts may view a problem one way at a time and
are considerations of policy and of social
in a different way at another time.
advantage, and it is vain to suppose that solutions
• The point for the modern realist approach is that
can be attained merely by logic and general
there are indeed certain unavoidable factors- which
propositions of law which nobody disputes.
can be summed up under the term metalegal
• -The life of the law has not been logic but human
stimuli- operating on the judicial personality of the
experience in terms of social advantage.
adjudicating officials every time they sit in
ROLE OF METALEGAL STIMULI judgment over a conflict of interest. In different
words, the law cannot be separated from the
• When Holmes expressed his striking concept of the politics of the law. No study of jurisprudence and
law as “ the prophecies of what the courts will do philosophy of law can afford to disregard the
in fact and nothing more pretentious”, and when metalegal factors or forces in the ordering of
Gray articulated his telling analysis that “the law is human conduct and experience.
the whole system of rules applied by the courts”
and that a law or statute is only a source of the • Undoubtedly , for the realists, there is a human
law, they opened up a broad field of jurisprudential equation in the life and processes of the law. Legal
investigation. rules and material facts are factors that compose
• They are positing the idea that rather than only one of two quantities that go to make up the
examine what the courts say they do, it is better to law. In the second quantity, adjudicative discretion
investigate what they really do or what they will and metalegal stimuli play a silent but no less
do in fact. important role. They provide not only a means for
 creative talent but they also afford the setting and tools of behavioral sciences in order to help courts
justification for the play and action of certain in the evaluation of the testimonies of witnesses.
extrajudicial factors in the process of decision- • METALEGAL STIMULUS
making. All these means that legal science is not
Meta – from Greek word meaning adjacent, after or
separable from the politics of the law.
beyond
Metalegal Factors
Legal – being in conformity with the law
• There is evidence and many cases to show that
Stimulus - something that causes a physiological or
metalegal stimuli affect in no small measure the
psychological response
formulation of the honest convictions of the judges
in the significant cases. There are certain factors c. Stimulus set up by the judge’s legal attitudes
which affect not only the general outlook of the
The judge’s legal attitudes are really the sum of his
judges but also influence their decisional
inclination bent on the matter in dispute.
behaviour. It must be stated, however, that many
of these factors manifests themselves only when D. Stimulus set up by the judges’ predilections and
judges deliberate on the issues and write their preconceptions
decisions.
Judge’s legal sympathies and legal antipathies.
• The different kinds of metalegal stimuli further
explains why legal journals or law reviews have a Legal sympathies – strong likings which arise from a
somewhat different task to perform everytime a judge’s community of experience, education, interests
new member of a high court is appointed. Indeed, and even temperament.
one of the points that should prevent one’s Legal antipathies – settled aversions or dislike for
elevation to a high judicial post is a complacent certain legal or political theories.
juristic mind or a self-satisfied juristic creativeness.
The metalegal factors may be grouped as follows: Plainly, the mind of a judge is not a blank sheet of
paper without any legal sympathies and legal
a) The stimulus set up by witness antipathies. It is a store of them acquired in the
b) The stimulus set up by lawyers process of maturing and education. But this metalegal
c) The stimulus set by the judges ‘ legal attitudes stimuli come into operation only because of the very
d) The stimulus set up by the judges predilections nature of cases or activities involved therein.
and preconceptions
e) The stimulus set up by historical events and E. Stimulus set up by historical or political events and
precedents precedents
f) The stimulus set up by current economic or social The historical or political events by historical or political
conditions events and precedents, while generally transient, are,
Stimulus Set Up by the Witnesses nonetheless, commanding and decisive in the judging
process. This is specially true in the great constitutional
• It is said that the witnesses in a court constitute questions, viz., delegation of legislative power, vested
the axis on which the decision of the judge turns. rights, due process of law, equal protection of the law,
• The oral testimony is only a means utilized in civil liberties, etc.
litigation of conflicting interests. The stimulus set
up by witnesses are principally the result of their F. Stimulus set up by current social and economic
statements, gestures, manners, moods, voice or legislation
pitch, zeal, hesitation, embarrassment, grimaces. By and large the important cases that reach the courts
Indeed, the “tongue of the witness is not the only are convered with, related to or bear upon socio-
organ for conveying testimony”. economic questions. In controversies of this type, the
• But there seems to be no rules by which the decisional behavior of a judge may depend on his
honesty of witnesses and the accuracy of their social or economic outlook.
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