LEGAL REALISM

Legal Philosophy 1-D:

Ajas, Marnelli Joy
Du, Brianne
Gonzales, Jerome Napoleon
Linawan, Vladimir
Yu, Dale Edward

INTRODUCTION
Gonzales, Jerome Napoleon

Legal institutions do not exist independently

from the framework of Social, Political, and
Moral conflict. (Fuller, 1934).

4 overlapping interests (Schlegel, 2015);

1.

pursuing studies of legal institutions

2.

criticizing legal formalism

3.

arguing a certain interpretation of juridical

decision making

4.

and refining legal education.

INTRODUCTION

Pascual, C.
(2003). The Legal
Realist
Perspective. In C.
Pascual,
Introduction to
Legal Philosophy
(10th ed., pp. 288418). Quezon City:
University of the
Philippines Law
Center.

Central theme: Pragmatism (Pascual, 2003)

Proponents:
1.

Charles Peirce

2.

William James

3.

John Dewey

INTRODUCTION

Fuller, L. (1934,
March).
American Legal
Realism.
University of
Pennsylvania
Law Review,
82(5), pp. 429462.
Schlegel, J.H.
(2001, February).
Legal Realism.
International
Encyclopedia of
the Social &
Behavioral
Sciences. pp.
8667-8670.

Outline
1.

Judicial Legal Realism

2.

Social Legal Realism

3.

Critical Legal Realism

4.

Psychological Legal Realism

INTRODUCTION

Pascual, C.
(2003). The Legal
Realist
Perspective. In C.
Pascual,
Introduction to
Legal Philosophy
(10th ed., pp. 288418). Quezon City:
University of the
Philippines Law
Center.

JUDICIAL LEGAL REALISM

Ajas, Marnelli Joy
Gonzales, Jerome Napoleon

Central theme: Pragmatism. (Pascual,

2003)

Proponents:

Charles Peirce

William James

John Dewey

JUDICIAL LEGAL REALISM

Pascual, C.
(2003). The Legal
Realist
Perspective. In C.
Pascual,
Introduction to
Legal Philosophy
(10th ed., pp. 288418). Quezon City:
University of the
Philippines Law
Center.

 Pascual, C.
(2003). The Legal
Realist
Perspective. In C.
Pascual,
Introduction to
Legal Philosophy
(10th ed., pp. 288418). Quezon City:
University of the
Philippines Law
Center.

U.S. Associate
Justice Oliver
Wendell Holmes, Jr.

Professor John
Chipman Gray,
Ll.D.

JUDICIAL LEGAL REALISM:

INTELLECTUAL FOREBEARS

Holmes Legal Realism as reduced by DAmato (2009).

1.

prophecies exist in the present

2.

prophecies are determinable

3.

law means either the precepts that affect or channel

the choices people make, or the assemblage of precepts
that can be found in law libraries and are modified or
deleted by the application of other constitutional or
juridical precepts.

4.

the law that affects human behavior is nothing but the

prophecies of what courts will do in fact.

5.

the law that affects the choices people make in their

everyday lives consists not of rules but of probabilities
of rules.

JUDICIAL LEGAL REALISM:

INTELLECTUAL FOREBEARS

DAmato, A.
(2009). Legal
Realism Explains
Nothing.
Washington
University
Jurisprudence
Review (1)1. pp.
1-20.

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.

Holmes, O.W. (1881). The Common Law.

JUDICIAL LEGAL REALISM:
INTELLECTUAL FOREBEARS

A law ordinarily means a statute passed by the

legislature of the state. The law is the whole system
of rules applied by the courts.

Gray, J.C.

(1909). The Nature and Sources of Law.

JUDICIAL LEGAL REALISM:

INTELLECTUAL FOREBEARS

 Frank, J. (1942). If
Men were Angels:
Some Aspects of
Government in a
Democracy. Ann
Arbor: University
of Michigan.

2.

Rule Skepticism
Fact Skepticism

3.

Opinion Skepticism

1.

JUDICIAL LEGAL REALISM:

CONSTRUCTIVE SKEPTICS

Role of Experience
and Social
Advantage:
Buck v. Bell
Lochner v. New York.

Role of Material Facts:

Peralta v. Director of Prisons.

[G.R. No. L-49. November 12,
1945]

JUDICIAL LEGAL REALISM

are the prophesies of

Laws
what the courts will do in
fact and nothing more
pretentious.
U.S. Associate Justice Oliver Holmes

JUDICIAL LEGAL REALISM:

ROLE OF METALEGAL
STIMULI

The law is the whole system

of rules applied by the
courts and that a law or a
statute is only a source of
the law
Professor John Chipman Gray

JUDICIAL LEGAL REALISM:

ROLE OF METALEGAL
STIMULI

Formalist Concept

The judicial process is viewed through the

positivist perspective

The decisive legal rule is the major premise and

the material facts constitute the minor premise

Decisions are inevitably follow on the basis of

STARE DECISIS

JUDICIAL LEGAL REALISM:

ROLE OF METALEGAL STIMULI

Realist Concept

The law is more rational and more civilized

when every rule it contains is referred
articulately and definitely to an end which it
serves, and when the grounds for desiring that
end are stated or are ready to be stated in
words

There are certain METALEGAL STIMULI in the

adjudicative process

JUDICIAL LEGAL REALISM:

ROLE OF METALEGAL STIMULI

The role of the metalegal stimuli is

manifest in hard cases:

Where applicable rules appear

indeterminate
Where a prior decision is to be reversed,
modified, or discarded
Where a prior decision is likely to be
established apart from legislation
Where a rule or principle stands to be
ignored

JUDICIAL LEGAL REALISM:

ROLE OF METALEGAL STIMULI

METALEGAL STIMULI

STIMULUS SET BY WITNESS

STIMULUS SET BY LAWYERS

STIMULUS SET BY THE JUDGES LEGAL ATTITUDE S

AND PREJUDICES

STIMULUS SET BY JUDGES PREDILECTIONS AND

PRECONCEPTIONS

STIMULUS SET BY HISTORICAL EVENTS AND

POLITICAL PRECEDENTS

STIMULUS SET BY CURRENT SOCIAL VALUES AND

ECONOMIC POSTULATES

JUDICIAL LEGAL REALISM:

ROLE OF METALEGAL STIMULI

The ratio decidendi becomes a

vital factor in the
prognostification of the result of
the other similar or nearly similar
cases

(jR x mF) x (mIS x jP)

=L
LAW IS A PRODUCT OF THE
JUDICIAL PROCESSS

 Judicial Legal Realism excludes the legislative

and executive as producing agencies of the law

The adjudicative process is the prime mover

IMPORTANT POINTS

LAW - is a body of rules, just or

unjust, that continues to be a rule
of action so long as it enjoys
recognition and it do not cease to
control human actions.

LAW AND PURPOSE

ADMINISTRATION OF JUSTICE

SOCIAL LEGAL REALISM

Du, Brianne

John Dewey held that knowledge is a

part of life-experience involving the
intercourse of a living being with
his
physical
and
social
environment.
John Dewey advanced the view that the
life of the law is the social experience
of
the people and tested and
guided by social experience.

SOCIAL LEGAL REALISM

John Deweys excursus into the

study of the nature of law as
through
and
through
social
phenomenon covers three distinct
yet related issues, namely the A)
source of law, B) the end and
purpose of law, and C) the
application of law.

SOCIAL LEGAL REALISM

John Dewey posited the view that the

law is the product of the on-going
human
activities
and
interactivities.
For John Dewey, the source of law is
the social experience of the people,
not some transcendental concept, since
all that the people can appreciate
well are their own experiences.

SOURCE OF LAW

John Dewey made it clear that the law is

a program of action to be tested in
action not something that can be
judged on a purely intellectual basis.
The consequences of human activities
and interactivities provide the basis for
collective decision that they are to be
maintained
either
intact
or
changed .

END OR PURPOSE OF LAW

For John Dewey, social contentment is

the satisfaction which comes when the
dominant active tendencies are
made interests in maintenance and
propagation of the things that make
life worth living.
The end or purpose of the law, thus,
remains social in nature
for it is
found in the society of the individual
members that compose it as a whole.

END OR PURPOSE OF LAW

According to John Dewey, until law is set into

operation in the field modifying and/or
maintaining human activities as going concerns
there can be no law in the real sense.
John Dewey said that 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 matter of fact only by telling how it
operates and what its effects are in and
upon human activities that are going on.

APPLICATION OF LAW

CRITICAL LEGAL REALISM

Linawan, Vladimir

The basic idea of Critical Legal Realism is that

the law must not involve politics and should be
neutral or value free.

OVERVIEW

Who is a realist?
What is realism?
What do we mean by Critical?

BEFORE WE PROCEED.....

The analytical deconstruction of the prevailing

liberal paradigm such as the ways in which the
language of impartiality, objective due process,
and value free procedures hide and conceal
partisan operations of power and elite forms of
social victimization.

CRITICAL LEGAL REALISM

Officially Started at 1977 at the conference at

the University of Wisconsin-Madison,

But its roots extend back to 1960 when many

of its founding members participated in social
activism surrounding the Civil Rights
movement and the Vietnam War

ORIGINS

Defenders of the dominant liberal paradigm

has denounced CLR as another form radical
socialism similar to Marxism.

However Roberto M. Unger had repeatedly

asserted that CLR is not an affirmation of
Marxism but a staunch denial of bourgeois
agenda of social divisions and economic
hierarchies.

ATTACKS AGAINST CRITICAL

LEGAL REALISM

In the hands of critical legal realists

deconstruction is the technique of:
1.
2.

Stinging analysis of the traditions of the DLP

Reformation of the traditions of the DLP
through presentation of the rationale and
justification for censure and offer of
alternative solutions

DECONSTRUCTION OF THE
DOMINANT LIBERAL PARADIGM
(DLP)

The traditions of the DLP in which CLR intensely

dislikes can be summed up to:

The contemporary order is a free society for

there is individual initiative to undertake any
business enterprise.

The underlying thrust of the contemporary

social order in the control of goods, production,
distribution and exchange of goods.

TRASHING THE TRADITIONS OF

THE DOMINANT LEGAL
PARADIGM

The Rule of Law

In its purest form the rule of law is not license for

extemporaneous and arbitrary exercise and arbitrary exercise
of authority, but a limitation on the far reaching exercise of
political and economic authority.

But in the contemporary liberal society the rule of law had

become a myth to be winked at if not mocked it had become
another ideological and rhetorical ruse in which the elite
transmit false consciousness to the society

REFORMATION OF THE
DOMINANT LEGAL PARADIGM

CASE:
CARINO V. INSULAR GOVERNMENT
7 PHIL 132

The Legal order has become politicized to the point

that governmental powers are no longer separated,
and the separation of powers have been obscured
by the fact that to a great extent the different
branches of the government had become the means
to power and wealth of the dominant liberal class.

SEPARATION OF POWERS

While conventional wisdom favors judicial

discretion what outrages the critical legal
scholar s is the abuse of the courts of the text
of the statutes are otherwise determinate.

And there are instances that Judicial discretion

reflects only personal or collective prejudices
of the judges on what a statute or rule should
be.

JUDICIAL ACTIVISM

The Law must be an instrument to redeem the

people from social divisions and economic
hierarchies.

CLR is an advocacy of the law as a neutral and

objective means of social control with
emphasis in its liberating function. Only when
the law is neutral in the inevitable conflict of
claims.

FUNCTION OF THE LAW

PSYCHOLOGICAL LEGAL
REALISM
Yu, Dale Edward

Scandinavian Legal Realists

Axel Hagerstrom (1868 1939)
Vilhelm Lundstedt (1882
1955)
Karl Olivercrona (1839 1963)
Alf Ross (1894 1974)

ORIGINS

Feelings and Opinions

Is not an abstract criterion but a

fact of conscious behavior

Ex:

The concept of just or unjust

What is good for the society
Psychological Compulsion to obey
the law

Physical Reality > Metaphysics /

Abstract

The impact upon the minds of

human beings

Ex: The classroom we are in right

now
VS
Multiverse / Alternate Reality

The concept of ownership

( Rights )
Existence of a Right vs Idea of a
Right
Rights and Obligations exists
even without the existence of
rules and sanctions.

VERBAL MAGIC

A father inflicting light /

serious physical injuries to a
child.

( social legal realism vs

psychological legal realism )
THEORY VS APPLICATION

Poe-Lamanzares vs.
Commission on
Elections, et al.

APPLICATION OF ACTUAL
CASE: