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8/8/2019 The life of the law
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"The life of the law has not"The life of the law has not
been logic; it has beenbeen logic; it has been
experience."experience."Oliver Wendell Holmes, Jr.Oliver Wendell Holmes, Jr.
Associate JusticeAssociate Justice
US Supreme CourtUS Supreme Court
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LEGAL REALISMLEGAL REALISMBY:BY:
JOHN PAUL SILABJOHN PAUL SILABGRACE SEALMOYGRACE SEALMOYSNOSNO--ANN DIGONANN DIGON
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Legal realism is a family of theories aboutLegal realism is a family of theories about
the nature of law developed in the first halfthe nature of law developed in the first halfof the 20th century in the United Statesof the 20th century in the United States
(American Legal Realism) and Scandinavia(American Legal Realism) and Scandinavia
(Scandinavian Legal Realism).(Scandinavian Legal Realism).
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The essential tenet of legal realism is that allThe essential tenet of legal realism is that all
law is made by human beings and, thus, islaw is made by human beings and, thus, is
subject to human foibles, frailties andsubject to human foibles, frailties andimperfections. This simply means that thereimperfections. This simply means that there
is no law unless it is promulgated by theis no law unless it is promulgated by the
State. Law is written down and explicit.State. Law is written down and explicit.
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Laws Made By Men Are:Laws Made By Men Are:
Idiosyncratic or faultyIdiosyncratic or faulty
ImperfectImperfect
Changes based on collective beliefChanges based on collective belief
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Legal Realism postulates that:Legal Realism postulates that:
The law iswhatthe courtssay it is. UnlessaThelaw iswhatthe courtssay it is. Unlessacasearises outoftheinterpretationandcasearisesoutoftheinterpretationandenforcementofawrittenlaw,thereisnolawenforcementofawrittenlaw,thereisnolaw
becausethereisno judicialinterpretation. Alawbecausethereisno judicialinterpretation. Alawis merely alawonpaperunlessacasearisestois merely alawonpaperunlessacasearisestointerpretit.interpretit.
Lawispragmatic, empiricalandscientific. ItisLawispragmatic, empiricalandscientific. Itisalsorelative, flexibleanddynamic.alsorelative, flexibleanddynamic.
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Legal Realism postulates that:Legal Realism postulates that:
Thesourceoflawisthesocial experienceoftheThesourceoflawisthesocial experienceofthepeople. Theschoolofmodernlegalrealismpeople. Theschoolofmodernlegalrealismcriticizesthenaturallawschoolorthecriticizesthenaturallawschoolorthe
philosophicalschool becauseitbelievesthatlawphilosophicalschool becauseitbelievesthatlawhasnometaphysicalsource. The endoflawishasnometaphysicalsource. The endoflawis"socialcontentment". Itisaninstrumentof"socialcontentment". Itisaninstrumentofsocialcontrol.socialcontrol.
It focusesitsstudy on "thelawthatis",notonIt focusesitsstudy on "thelawthatis",noton"thelawthatoughtto be.""thelawthatoughtto be."
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The earliest codified Roman laws were the JusThe earliest codified Roman laws were the Jus
Civilis, which was applicable to Roman citizens,Civilis, which was applicable to Roman citizens,
and the Jus Gentium, which was applicable to theand the Jus Gentium, which was applicable to the
legal relations of Roman citizens with alienslegal relations of Roman citizens with aliens
("perigrino")("perigrino") ---- both of which were administered byboth of which were administered bya "praetor" or a judge.a "praetor" or a judge.
Emperor Justinian's greatest contribution to theEmperor Justinian's greatest contribution to the
growth of the legal system of the world was hisgrowth of the legal system of the world was hiscodification of all Roman laws. The Romans madecodification of all Roman laws. The Romans made
law systematic, as in the areas of family, persons,law systematic, as in the areas of family, persons,
contracts, slavery, etc.contracts, slavery, etc.
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During the Reformation Period, the world saw theDuring the Reformation Period, the world saw the
rise of Protestant philosophers. Today, the worldrise of Protestant philosophers. Today, the worldsaw the rise of the sociological school, thesaw the rise of the sociological school, the
functional school, and the school of modern legalfunctional school, and the school of modern legal
realism.realism.
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Modern Legal RealismModern Legal Realism
Thelawisobjective,authoritative,commanding,Thelawisobjective,authoritative,commanding,and empirical.and empirical.
The expressionofthewillofthestate.The expressionofthewillofthestate.
Naturallawandmorallawdonotmatter.Naturallawandmorallawdonotmatter.
Lawisnotamoralconcept. ThereforemoralLawisnotamoralconcept. Thereforemoralconnotationsandvalue judgments fromlaw,i.e.connotationsandvalue judgments fromlaw,i.e.ofallnonofallnon--legal elements,should beremoved.legal elements,should beremoved.
Itis free frommetaphysicalspeculation.Itis free frommetaphysicalspeculation.
Itisnotmade by God butby asuperiorItisnotmade by God butby asuperiorsovereign.sovereign.
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Modern Legal RealismModern Legal Realism
LawistheconsciouswillandcommandoftheLawistheconsciouswillandcommandofthesovereignimposedonthesubjects,whoaresovereignimposedonthesubjects,whoareliabletosufferpenaltiesincaseofviolationliabletosufferpenaltiesincaseofviolation
thereof (authoritative enforcementsystem).thereof (authoritative enforcementsystem). Lawisapositivenormofconduct,hence,itisLawisapositivenormofconduct,hence,itis
uniform forall.uniform forall.
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Definitive Points ofLegal RealismDefinitive Points ofLegal Realism
It focusesonthe question: "Willthislawwork?"It focusesonthe question: "Willthislawwork?"Lawisoneof experience. ItisalsocalledtheLawisoneof experience. Itisalsocalledthe"theory ofsociological jurisprudence", "sociology"theory ofsociological jurisprudence", "sociology
oflaw," or "socialscienceschooloflaw."oflaw," or "socialscienceschooloflaw." It focusesonthe "operationand effects" oflawIt focusesonthe "operationand effects" oflaw
inrelationtotheinterestsofsociety. Theinrelationtotheinterestsofsociety. The"interestsofsociety",notthe folk"interestsofsociety",notthe folk--soulorthesoulorthe
pressures fromthepowerful elite,isthesourcepressures fromthepowerful elite,isthesourceoflawoflaw
Itmaintainsthatlawisan evolutionary process.Itmaintainsthatlawisan evolutionary process.
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Definitive Points ofLegal RealismDefinitive Points ofLegal Realism
Lawisatool forthe "balancingofinterests" inLawisatool forthe "balancingofinterests" insociety. Itisatoolof "socialcontrol" or "socialsociety. Itisatoolof "socialcontrol" or "socialengineering." Inasense,itadherestotheengineering." Inasense,itadherestothe
tenetsof "pragmatic ethics" or "ethicaltenetsof "pragmatic ethics" or "ethicalrelativism" asitaimstoservetheinterestsofrelativism" asitaimstoservetheinterestsofsociety withtheleast friction.society withtheleast friction.
Itmaintainsthat factorsdefiningthelawareItmaintainsthat factorsdefiningthelawareexpediency andtheconvenienceofsociety.expediency andtheconvenienceofsociety.
Itsmainguidepostis "thegreatestgood fortheItsmainguidepostis "thegreatestgood forthegreatestnumber. "greatestnumber. "
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Legal Realism vs Natural LawLegal Realism vs Natural Law
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Natural Law Postulates that:Natural Law Postulates that:
Humandignity (manas endinhimself),Humandignity (manas endinhimself),supremacy ofreasonand freewill (asGodsupremacy ofreasonand freewill (asGod--givengivenandinherentinman), equality, freedom,andandinherentinman), equality, freedom,and
mutuality ofrights,anduniversallawofmutuality ofrights,anduniversallawofmorality.morality.
Itisreasonthatmakeslawandobeyslaw. ManItisreasonthatmakeslawandobeyslaw. Manknowswhatisnaturalrightornaturallawknowswhatisnaturalrightornaturallawbecauseheisrationalandthepreceptsofbecauseheisrationalandthepreceptsofnaturallawareinherently writteninhisheartnaturallawareinherently writteninhisheartandmind (conscience).andmind (conscience).
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Natural Law Postulates that:Natural Law Postulates that:
Manisamoralindividual. Heisnotachattel.Manisamoralindividual. Heisnotachattel.Moralrightnessisamatterof "motives" andMoralrightnessisamatterof "motives" andlegalrightnessrefersto "externalacts."legalrightnessrefersto "externalacts."
Every actionisrightwhichinitself,orintheEvery actionisrightwhichinitself,orinthemaximonwhichitproceeds,issuchthatitcanmaximonwhichitproceeds,issuchthatitcancoco--existwiththe freedomofthewillof eachandexistwiththe freedomofthewillof eachand
all,accordingtoauniversallaw.all,accordingtoauniversallaw.
Humanrightsarenotcontracted butareHumanrightsarenotcontracted butareinherentinman (dignity, freedom, equality).inherentinman (dignity, freedom, equality).
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Moral norms and natural law postulates do notMoral norms and natural law postulates do not
decide court cases or determine social behavior.decide court cases or determine social behavior.
As stated earlier, the law is what the courts say itAs stated earlier, the law is what the courts say it
is and how the courts interpret and apply itis and how the courts interpret and apply it
(jurisprudence). That is the true source of law and(jurisprudence). That is the true source of law and
the nature of law.the nature of law.
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FactFact--finding is the most difficult and the mostfinding is the most difficult and the most
crucial task of courts. The judge, who determinescrucial task of courts. The judge, who determines
and applies the law, is a real person, an imperfectand applies the law, is a real person, an imperfect
human being, with biases and prejudices, andhuman being, with biases and prejudices, andaffected by all kinds of "metalegal stimuli". He isaffected by all kinds of "metalegal stimuli". He is
subject to all kinds of real sociosubject to all kinds of real socio--psychologicalpsychological
pressures.pressures.
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In modern legal realism, congressional acts areIn modern legal realism, congressional acts are
not law but are a source of law. It is thenot law but are a source of law. It is the
adjudicative process of the judiciary which defines,adjudicative process of the judiciary which defines,
interprets, and applies the law. In this school ofinterprets, and applies the law. In this school of
thought, the emphasis is on the judicial process.thought, the emphasis is on the judicial process.
Justice is equated with equality. The officialJustice is equated with equality. The official
promulgation of a law is not necessarily equal topromulgation of a law is not necessarily equal to
the justness of its contents.the justness of its contents.
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Out of this school rose the "critical legal studiesOut of this school rose the "critical legal studies
movement" in the United States, which, influencedmovement" in the United States, which, influenced
by modern radical social theories, looked at law asby modern radical social theories, looked at law as
being imposed by the ruling class or elite in societybeing imposed by the ruling class or elite in society
who controls the tools of production. Thewho controls the tools of production. The
movement advanced the vision of positive equalitymovement advanced the vision of positive equality
(free open society), with law as an expression of(free open society), with law as an expression ofthe folkthe folk--soul of the people.soul of the people.
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