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Presenters: Regudo, Marissa Retuya, Lawrence Yap, John Raymund Nillama, Vanzniel Epo, Skellie
Discussion Outline
I . Judicial Legal Realism II. Social Legal Realism III. Critical Legal Realism IV. Psychological Legal Realism
Also labeled as Pragmatic Jurisprudence, which when used as a method of analysis, maintains that if there is no conceivable practical effect of a concept or idea, then there is simply no point in pursuing its analysis.
A. Intellectual Forbears
Benjamin Hoadly, Bishop of Bangor asserted in a sermon before a congregation which included King George I that, whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all intents and purposes, and not the persons who wrote or spoke them.
- Was probably the first to acknowledge in a court decision the concept of judicial legal realism as expressed on his decision in the case of Marbury vs. Madison when he asserted that, it is emphatically the province and duty of the court to say what the law is.
His ideas on Human Law and Human Experience. - The precepts of natural law do not lie on the surface for they are really concealed and must be dug out and examined. - The precepts of natural law are so abstract that people are led to contradictory results by them. - The law is not a divine parent keeping watch over a human child. Human law is human and should not amount to more than that.
- The law should address human experiences past and present. the law should not be considered as a system of reason, not a deduction from ethical principles, corollaries and axioms, or what not.
- The life of the law has not been logic, it has been experience. The felt necessities of the times, the prevalent moral and political theories, intentions of public policy avowed or unconscious, even the prejudices which judges share with their fellow men, have had a lot to do than the syllogism in determining the rules by which men should be governed.
- It is not the will of the sovereign that makes the law but what the judges, by whom it is enforced, says is his will. The judges have other motives for decisions, outside their own arbitrary will, besides the command of the sovereign. And whether these motives are, or are not, equally compulsory is immaterial if they are sufficiently likely to prevail to afford a ground for prediction. (on the consequences of the metalegal stimuli on judges)
- If you really want to know the nature of the law, you take it from the point of view of the bad man who cares only for the consequences which such knowledge enables him to predict what the courts will do to him.
- for him, what constitutes as the law are the prophecies of what the courts will do in fact.
His ideas on separation of the Law from its source. - He emphasized that the law is not an ideal concept but something that actually exists. It is not that which is in accordance with nature, or religion, or morality, it is not that which ought to be but that which is.
- in giving definition of what the law is, he stated: The law is the whole system of rules applied by the courts. The law of the state or of any organized body of men is composed of the rules which the courts lay down for determination of legal rights and duties.
- Legal rules are only sources of the law. The shape in which a statute is imposed on the community as a guide for conduct is the statute as interpreted by the courts. The courts put life into the dead words of the statute. - No rule or principle which the highest tribunal of a country refuses to follow is law in that country.
B. Constructive Skeptics
- Characterized by a healthy skepticism about the role of rules, facts, and judicial opinions in the legal ordering of society.
1. Rule Skeptics - Question the notion of the legal formalists that legal rules are precise and can be applied easily in any given case - Dispute the claim that legal rules by themselves dictate the or decision of a case. Rule skeptics feel that legal formalism has shunted to the background the relevant though inarticulate premises and uncommunicated reactions of those involved in conflicts of interests, namely the parties, the witnesses, the lawyers, the adjudicating officials, and even the community itself.
2. Fact Skeptics
- Appreciates the role of appellate court decisions in the prediction of what courts will do. But they deplore the overemphasis given to appellate court decisions and consequently, the lack of attention to the actualities happening in the trial courts.
For fact skeptics, the major cause of legal uncertainty is fact uncertainty, the unknowability before the decision of what the trial court will find as the facts and the unknowability after the decision of the way in which it found those facts.
To illustrate the fact skeptics point into a crude schematic of the decisional process:
RF=D Where R is the rule, F the facts and D the decision or judgment.
On this basis, an erroneous F will lead to an erroneous D.
No matter how excellent the legal rules and social policies they embody, specific decisions will go astray, absent competent fact-finding.
3. Opinion Skeptics
Mostly deals with the role and effect of metalegal stimuli on the judicial personality. Litigants present a set of conflicting major and minor premises for each and every issue they argue about. In considering which of these contradictory premises, rules and citations are correct or reliable, appellate courts may and do make mistakes in the process. The rationalization of a court even when on the basis of the material facts, the relevant rule and the actual issue or issues in a case may qualify as judicial precedent only when it is confined from molar to molecular motion
Realist Concept - What the courts will do in fact is not achieved only by the interaction of the rules on the facts. - There is a human equation in the life and process of the law. - Metalegal stimuli not only provides the means for creative thinking but also the setting and justification for the play and action of what Holmes called experience and social advantage.
Metalegal Factors - these are factors that create conflicts of interest affecting the judicial process. - Their importance in the adjudicative process lies in the reality that decisional behaviour is very likely to be affected by them, obscurely or articulately, unconsciously or avowedly. - They are environmental in character and personal in nature
b. Stimulus Set by Lawyers - brought about by the lawyers professional reputation and the lawyers professional bearing.
i. Professional reputation brings to it the lawyers sincerity and inclination for the right and fair cases and the intrinsic validity of the lawyers theory of a case, his arguments on the law and the material facts involved.
ii. Stimulus from professional bearing stems from the lawyers respect and regard for his own responsibilities as an officer of the court.
c. Stimulus Set by the Judges Legal Attitudes and Prejudices - these are the stimulus coming from the sum of the judges inclination or bent on the matter in dispute.
d. Stimulus set by the Judges Predelictions and Preconceptions i. Through the judges legal sympathies (strong likings which arise from a judges community of experience, education, interests and even temperament. ii. Through the judges predilections how the judge view his/her role. iii. Legal antipathies settled aversions or dislikes for certain legal or political theories or ideas
e. Stimulus Set by Historical Events and Political Precedents - the prevailing sentiments under a particular event or political precedent may affect the way a judge rationalizes his/her decision.
f. Stimulus Set by Current Social Values and Economic Postulates - decisional behavior of a judge may be influenced by his or her social or economic outlook. - judges are human beings and they cannot isolate themselves from current social values and economic postulates.
Law becomes the product of jR(jural rules), mF(material facts), mlS(metalegal stimuli) and jP(judicial personality).
- statutes enacted by the legislature and the orders issued by the executive department are only sources of law. This means that all agencies of the government engaged in decision making form part of the adjudicative organ, regardless of their political or governmental classification.
A. Source of Law
Dewey posited that law is the product of the ongoing human activities and interactivities. The source of law is the social experience of the people, not the transcendental concept, since all that the people can appreciate well are their own experiences.
C. Application of Law
The law is an instrument of social control. Implicit in this concept is the use or threat of sanctions for the attainment of the social ends. What is called application is not something that happens after a rule or statute is laid down but is a necessary part of them; such a necessary part indeed that in given cases, we can judge what the law is as a matter of fact only by telling how it operates and what its effects are in and upon human activities that are going on.
the academic left subculture. -Cornel West, Professor of Religion Princeton University
Some proponents of the dominant liberal paradigm have branded critical legal realism as another form of radical socialism, no different from the critical socialism of Karl Marx. As stated by Karl Marx, the bourgeois concept of law is but the will of the dominant elite erected into legislation, a will whose essential character and direction are determined by material and economic conditions of the existence of the class.
Three undesirable situations in the contemporary liberal order were identified by the critical legal realists. These are: the state has become the organization of the dominant liberal class; the law has become the rationalizing instrument of alienation and oppression yielding concessions to the people only when absolutely necessary in order to avoid protests and contradictions; and the social structure has become so divided and hierarchied that status and position therein are being determined by irrelevant inequalities. Unger agrees that the tradition and propensities of the dominant liberal paradigm reveal its class essence.
2. Internal Reformulation of the Dominant Legal Paradigm The critical legal realists have gone beyond their analysis of the traditions of the dominant liberal paradigm at the first stage of the deconstruction process. They envision a post-liberal socio-legal order.
i. Rule of Law
Here, the noun rule is best understood with regnum, which means reign and sovereignty of the law. This means that conduct must conform to the formal and impartial norms and values of the law suggested by the phrase a government of laws, not of men.
It is not a license for extemporaneous and arbitrary exercise of authority but a limitation on the farreaching exercise of political power and economic authority.
Objectivism It is not the cognizable extrinsicality of legal concepts and legal rules. It is the liberal view that the contemporary legal order, including the built-in institutional structures that undergird it, is already sufficient to sustain society and, therefore, no reason exists to complain about it. Formalism It is not so much the application of legal rules on the facts involved in a conflict of interests that is attacked as it is: over-dependence on legal rules; and assumption that the legal order is non-partisan in the adjustment of conflicting interests.
Justice Oliver Wendell Holmes courts legislate interstitially; they are confined from molar to molecular motion. While judicial activism cannot be avoided, nevertheless, such activity is proper only when there are interstices or gaps in the text of the statute under question. Courts cannot enlarge the scope of a statute to include matters beyond its text or import.
4) courts should have no advantage over elected legislators and the former are to put into effect legislation regardless of their disagreement with the wisdom of the legislation, except when it is unconstitutional; 5) legislative facts and assessment of policy questions are entirely different from judicial facts and consideration of actual cases; and 6) courts have no moral and legal bases to create or contradict rules or policies merely on advisability.
The indeterminacy of laws enacted by the legislature appears in two forms: First, when they are vague. Second, when they provide inconclusive guidance as to how persons are to act in the performance of their obligations or in the exercise of their rights.
Judicial policy-making dulls the cutting edge of pure analytical reasoning. Analytical reasoning is replaced by political reasoning whenever courts engage in judicial policy-making. When the emphasis on determinate rules are diminished in the adjudicative process the result is NOT LAW BUT POLITICS.
iv. Popular and Liberal Concepts of Democracy The critique against the idealistic version of democracy is that it is awash with inapt hope on and misplaced confidence in the majoritarian rule and the theory of the consent of the governed. The critique against the cynical type of democracy is that the dominant liberal paradigm has virtually gained control of the government as well as the monopoly of the financial, production, commercial, and monetary involvements of the country. The dominant liberal class would argue that it has occurred only after hard, rugged competition.
a. Basic Equality
traceable to Aristotle, who posited the concept of fair equality as a jural postulate of natural law. It has become the basis for the distribution of the social and material goods of society depending upon individual effort and merit.
b. Democratic Republicanism underscores the proper relationship that should exist between the legal order and society in general defines the essential features of the social organization as well as the individual rights and entitlements that the government must protect come what may
1. Decentralization of Government Elements: - accountability - devolution - effective and efficient decision-making - responsible and accountable party government
i. Resistance Right
Gives every individual the fundamental sense of safety that enables him to accept a broadened practice of collective conflict without feeling his vital security endangered. One is given authority to be able to repel interferences with his vital security in the social and economic aspects of life.
F. Function of Law
law is an instrument to redeem the people from social divisions and hierarchies. law as a neutral and objective means of social control with emphasis on its liberating function.
Only when the law is neutral and maintains its neutrality in the inevitable conflict of claims, demands and expectations can everyone in society accept it as a means of social control and feel safe and secure from illegitimate divisions and hierarchies.
C. Nature of Law
The law and its component system of jural relations are real because they are social facts. Legal activities are essential to the social order, and to assure the legal ordering of society the law and its component jural relations must be based on the feeling for justice prevalent and current within society.
D. Jural Relations
Right:Obligation is the basic jural relationship of individuals to other individuals and individuals of the state. 4 Types of Jural Relations the claim-duty relation the power-liability relation the privilege-inability relation the immunity-disability relation
In the case of right and its correlative obligation, their reality must, respectively be, based on the feeling of ascertaining a position of advantage and the feeling of complying with the prestation constituting the undertaking.