The life of the law

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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The life of the law