Jurisprudence Lecture Notes 1 14

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Jurisprudence - Lecture notes 1-14
Jurisprudence II (Universiti Teknologi MARA)
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Jurisprudence
JURISPRUDENCE

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Table of content
Topics Page number
Sociology
American Realism
Scandinavian Realism
Post modernism
Feminism
Marxism
Theory of adjudication
Tutorial

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Sociology (EVERYTHING)
Introduction
• The first quarter of the 20th century, witnessed rapid social
changes in United States and law seen as form of social control.
It took into account social facts when law was made,
interpreted and applied
• The term sociology was derived from the term society , which
refers to people and the community
• Factors contributing to the rising concern and interest on law
in relation to society:
• Rapid increase in population and inequalities caused by the
industrial revolution
• Creation of new rights for specific sections of the
community
• Changing tempo and patterns of modern legal practice
• Pressure for legal reform, greater access to justice and for
the delegalisation (revoking the authority) of the judicial
process
• Sociological jurists tend to be skeptical of the rules presented
in the textbooks and are concerned to see what really happens,
the law in action
• Sociological jurists tend to support relativism which means the
doctrine that knowledge, truth and morality exist in relation to
culture, society or historical context and are not absolute. They
reject the belief that of naturalism that an ultimate theory of
values can be found. They see reality as socially constructed
with no natural guide to the solution of many conflicts
• Sociological jurists believe also in the importance of harnessing
the techniques of the social sciences, as well as the knowledge
culled from sociological research, towards the erection of a
more effective science of law

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Roscoe Pound (1870-1964) (EXAM: Article 153 FC/ Roscoe

Pound, refer tutorial) Define, Describe methodology, key
features of sociological engineering, explain pound’s plan of
action, conflicting interests, explain jural postulates (all must be
in the answer), link to Article 153 in context of Malaysia) (bumi
putera rights, beneficial in what way? Add in cases. Through law,
Malaysia has crafted social engineering by the use of legal
provisions (education, employment, business, property)), Talk
about criticisms of pound’s theory and advantages &
disadvantages of social engineering (9 things)
▪ Roscoe Pound, the most influential of sociological jurists was the
leading representative of sociological approach
▪ Law as a form of social control, to be adequately employed in
enabling just claims and desires to be satisfied, must be developed
in relation to existing social needs
▪ Law is considered as a social institution, created and designed to
satisfy human wants which helps attain the most wants with the
least sacrifices through a politically organized society
Social Engineering
▪ The aim of social engineering is to build as efficient a structure of
society as possible which requires the satisfaction of the
maximum wants with the minimum of friction and waste
▪ Pound likened the task of the lawyer to that of an engineer.
o During Pound s time, America was passing through a
period of major changes, and yet lawyers were in the
habit of thinking static concepts; taking the law as it is.
o Thus, social engineering was to enable the lawyer to
think in terms of changing or moulding the law.
o Pound suggested that lawyers and judges should
abandon their rigid attitude and adapt law to
accommodate changes in order to help achieve the aim of
social engineering
▪ It involves a balancing of competing interests, referred to as
claims, wants or desires, about which the law must do something
if organized societies are to endure

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▪ By identifying and protecting certain interests, the law ensures

cohesion.
o Interests is defined as a demand or desire which human
beings, individually or in groups, seek to satisfy and
which must be taken into account in the ordering of
social relations
▪ To achieve balance of conflicting interest there should be
a) A factual study of the social effects of legal administration.
b) There should be social investigations as preliminary to
legislation.
c) A constant study of the means for making laws to see whether
or not it is effective
d) Psychological and philosophical study of judicial method
e) Allowance for the possibility of a just and reasonable solution of
individual cases
f) A ministry of justice for English speaking countries
g) Achieve of the purpose of various law
Classification of interests
▪ Individual interests: Claims, demands or desires involved in and
looked at from the standpoint of the individual life
o Personality: Interests in the physical person, freedom of
will, honour and reputation, privacy and belief and
opinion
o Domestic relations: Interests of parents, children,
husband and wives
o Interest of substance: Interests of property, freedom of
industry and contract, promised advantages,
advantageous relations with others, freedom of
association and continuity of employment
▪ Public interests: Claims, demands or desires asserted by
individuals involved in or looked at from the standpoint of
political life

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o Interests of the state as a juristic person: Includes the

integrity, freedom of action and honour of the state s
personality and claims of the politically organized society
of a corporation to property acquired and held for
corporate purposes
▪ Social interests: Claims, demands or desires thought of in terms
of social life and generalized as claims of the social group. These
include the interests of the state as a guardian of social interest. It
is the most general and preferred level on which conflicting
interests are to be balanced.
o General security: Security against acts or conduct which
threaten the existence of a civilized society
o Security of social institutions: Protection of
fundamental institutions of a civilized society (domestic,
religious, political and economic institutions)
o General morals: Security against acts or conduct
offensive to the moral sentiments of the general body of
individuals. For example: laws dealing with prostitution,
alcohol and gambling
o Conservation of social resources: Conservation of
natural and human resources and the restraint of any act
or conduct which seeks to impair such resources
o General progress: Economic progress (freedom of use
and sale of property, free trade, free industry,
encouragement of invention by the grant of patents),
political progress (free speech and association) and
cultural progress (free arts, science, letters; promotion of
education and learning and aesthetics)
o Individual life: Self-assertion, opportunity and
conditions of life
▪ A conflict of interests will demand a process of balancing one

against another.
o One cannot balance an individual interest against a social
interest.

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o The interest involved should be balanced onto the same

plane, preferably the social place.
o For example, where the freedom of an individual is
affected, although it is an individual interest, it is
translatable as interest of the society that its
members should be free.
o The balance of conflicting interests would therefore lead
to a reconciliation of interests
▪ Lachner v New York: The appellant was the owner of a bakery
shop and was charged for wrongfully permitting an employee to
work more than 60 hours per week as regulated by the Bakershop
Act. It was contended in this case that:
o The statute is unconstitutional as it abridged freedom of
contract
o The statute did not apply equally to all, instead only a
certain class of workers
o The legislature exceeded its police power in prohibiting
conduct that was lawful
o The court held that the Act which only allows for 60
working hours per week is invalid because all men are by
nature, free and independent and have certain
inalienable rights, interalia, the right to freely contract.
The bakers are clearly able to assert their rights and care
for themselves without the protecting arms of the State
interfering with their independence of judgment and
action. Thus, in this case, an employee s individual
interest would prevail over the existing social interest
• Muller v Oregon (public interest prevails over individual
interest): Muller, the owner of a laundry business, was
convicted of violating Oregon labour laws by making a female
employee work more than ten hours in a single day. The issues
in this case were:
o Whether the statute in question unconstitutionally
violated the right to freely contract
o Whether a statute regulation of working hours for
women violated equal protection

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o Whether a state exceeded its police power by regulating

the working hours
o The court held that a woman s physique and the
performance of maternal functions place her at a
disadvantage in the working force. Even when they are
not burdened by motherhood, working for long periods
tend to leave injurious effects upon the body, and as
healthy mothers are essential to healthy offspring,
the physical well being of women become an object of
public interest and care in order to preserve the strength
and health of the race. Thus in this case, the public
interest of female employees prevail over the individual
interest of an employer:
o A person s freedom of contract is subject to police power
regulations
o The legislatures may adopt a legislation that reflects
differing capacities of sexes without violating the
constitutional guarantees
o A statute which seeks to protect the health of female
workers in certain occupations is reasonable in light of
the valid state interest in protecting their health.
• Noorfadilla Saikin v Shayed Basirun: The plaintiff applied

for and was given the position of a temporary teacher at a
school but her placement was withdrawn upon the
discovery that she was three months pregnant. The court
held that as only women have the capacity to become
pregnant, the defendant s decision to reject the placement
amounts to gender discrimination. The judge found no merit
in the defendant s argument that employing a pregnant
woman to fill up the post will defeat the purpose of the
contract, as it is a month to month contract which can be
terminated at any time. The defendants act of revoking and
withdrawing her placement because she was pregnant
constituted a violation of Article 8(2) of the Federal
Constitution, as it was a contravention of the plaintiff s

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rights by the defendants as agents of the Executive. Thus, in

this case, the social interest (equality and no gender
discrimination) prevails over the public policy (interest) of
the school that revoked her placement
• Donoghue v Stevenson: Mrs Donoghue drank a bottle of
ginger beer in a café and found that a dead snail was in the
bottle. She fell ill, and she sued the ginger beer
manufacturer, Mr Stevenson. The court held that the
manufacturer owed a duty of care to her, as it was
reasonably foreseeable that failure to ensure the product s
safety would cause harm to consumers. Tainted food when
offered for sale becomes a type of dangerous goods and to
deal in or prepare such food is highly relevant to infer a
duty. The fact that the danger has been introduced by an act
of negligence and does not advertise itself, should not
release the negligent manufacturer from a duty. the rule is
that you are to love your neighbor. One must take
reasonable care to avoid acts or omission which you can
reasonably foresee would be likely to injure your neighbor .
Thus, in this case, a consumer s individual interest prevails
over established public interest that manufacturers do not
owe a duty to consumers
Jural Postulates
• Where the conflict of interests leads to a request to
recognize a new interest, reference must be made to the
jural postulates which reflect the society s values
• Jural postulates are the presupposition of legal reasoning.
They are the standards of a civilized society which men are
entitled to assume and what must be in the background of
any judgment ordered in court
• To be able to walk around safely without any intentional
aggression
• Beneficial control over property
• Good faith in dealings

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• Due care not to injure

• Control over dangerous activities
• However, these postulates are not absolute and will require
revision in the future
• Pound adopted a social-utilitarian approach, whereby in the
fulfillment of the interests of the society, the grater good for
the greater number of people must be sought by:
o Satisfaction of maximum wants with minimum friction
and waste
o Taking into account the jural postulates of the civilization
in time and place
• Pound s theory sheds light on the importance of the desires
of the people as opposed to the desires of a sovereign. His
theory allows members of the society to take steps towards
protecting their interests and to make sure that their voices
are heard. Thus, this would result in the reconciliation of the
society s interest and the interests of the state
▪ Ah Thian v Government of Malaysia: In Malaysia, where the
Federal Constitution operates to protect the interests of the
society, the Parliament cannot enact laws at its whim and fancy as
there exists the concept of constitutional supremacy which
invalidates any law that is found to be in contravention of the
Constitution as under Article 4(1)
▪ Mohammad Nizar Jamaluddin v Dato Dr Zambry Abdul Kadir: The
Constitution must be construed liberally as in any case, the
interests of an affected party must be given significant
consideration as compared to mere legislation
• Pound s theory guides the courts in dealing with cases

which are concerned with competing interests.
▪ As seen in Lochner v New York: All men are by nature free and
independent and have certain inalienable rights
▪ However, in Malaysia, in cases where individual interests are
affected, the fundamental rights and liberties enumerated under
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Arts 5-13 of the Constitution are not treated by the courts as

absolute
▪ Ooi Kean Thong & Siow Ai Wei v PP: The right of the appellants to
express themselves does not extend to a public act of gross
indecency
▪ Mark Koding v PP: Freedom of speech does not extend to
intentionally causing ill will between races and inciting hatred
and contempt within members of the public
Criticisms
• Although Pound s theory demands a balancing of conflicting
interests, it fails to specify or provide a guideline on which
interests are to prevail. In some instances, this has caused a
great loss to certain individuals
• Beatrice Fernandez v Sistem Penerbangan Malaysia: The
court ruled that a contractual term that prohibited the
appellant from being pregnant was not discriminatory as to
say otherwise would open a floodgate of countless pregnant
stewardess. The court protected the interests of Malaysia
Airlines in profiting form the working women as compared
to their interest in having a family
• Pound s theory appears to place emphasis on the majority
interest to such an extent that under certain circumstances,
the personal freedom and material welfare of the individual is
being ignored
• Datuk Seri Anwar Ibrahim v PP: The court admitted
unlawfully obtained evidence of a towel, water bottle and
glasses that the accused used in prison to extract his DNA in
order to match it with that found in the complainant.
Despite the fact that the prejudicial effect of the evidence
was high, as it was obtained without his knowledge and
consent, the court admitted the evidence, having due regard
to the benefit of the society at large to discover the truth
• Pound s theory shifts the focus of legal order from legislation to
court judgments
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• The limitations of the judiciary prevents social

engineering from effectively progressing as the judiciary
does not have a machinery to enforce its decisions
• As in the US, despite the landmark case of Brown v Board
of Education in which the Supreme Court declared state
laws establishing separate public schools for black and
white students to be unconstitutional, discrimination
against people of colour is still rampant
• Pounds view of interests rests solely upon the fallacy that the
society as a whole is vocal.
o Not all demands and interests are vocalized as it is
inarguable that some individuals and groups are more
vocal than others in a society
• The concept of harmonizing conflicting interests would be
difficult where the interests are irreconcilable
o In a situation where the interests of a minority group are
irreconcilable with the interests of a majority group in a
society, Pound s theory does not guide how such
interests are to be balanced
o Whichever interest is favored will surely cause deep
resentment between different societal groups
Brian Tamanaha
• Tamanaha talks about socio legal studies. This is an area of
law that does not have any theories as such, the law is
treated as separate entity and legal system is treated as
separate entity. The reforms that were suggested under
realistic socio legal studies is looking at behavior of
instituaiton rather than understand legal studies. They look
at behavior of institution
• He came into the scene with realistic socio legal theory.
Came about late 1990s
• He identified and developed the foundations for social
scientific study of law. he draws on philosophical
pragmatism to establish an epistemological foundation
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which specifies the nature of social science and its

knowledge claims, and a methodological foundation which
uses both behaviourism and interpretavism.
• He is a practical philosophy still based on epistomolgy
(study of how people think)
• He insisted that law should not be defined in ways that
assumes sociological connections. But should be subject to
investigation and proof. he states that what law is, and law
what does cannot be captured in any single scientific
concept. He wants to have one scientific concept of law
which he believes can only be done through proof.
• It is not just theory. It is philosophy and being able to proof
• To him law is thoroughly, a cultural construct which lacks
any universal essential nature.
• Law is whatever we attach the label law to.
• He doesn't talk about theory and concept of law. to
understand law, you have to understand, analyze and
discuss it
• The concept of law is wide. law is a concept that is
conventionally applied to a variety of multi faceted, multi
functional phenomena, and he insists that there is not a a
central case of law .
• He says his alternative concept of law is better able to
account for the different kinds of law.
• How Tamanaha evaluate that one concept of law is better
than the other? Evaluative criteria
• Step 1: The concept must be coherent and analytically
sound. Eg: it should not contain internal contradiction.
• Step 2: the concept must be consistent with or fit or be
adequate to the reality or phenomenon or idea that it
purports to represent, describe or define.
• Step 3: The concept must have used value in the sense that it
will enhance our understanding or help us achieve our
objectives.
• He does not believe we should have one centralized
definition of law like postmodernist
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• How then should u know which law is better so you use this
criteria as stated above.
• If you say there is connection of law and all society you must
be able to investigate and prove it.
• Brian uses similar method as Pound that is that he uses
pragmatic approach
• He focuses on behaviouralism and interpretavism
• He does not want to define the characteristics of law
• What law is and what law is not cannot be captured in one
single definition
• Law can have certain elements but it cannot be defined. Law
is whatever you label it as.
• It is a cultural construct and there is no central case to
define law
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American Realism (EVERYTHING)

Exam tips:
• Methodology
• Key features/ Common features.
• Fact skeptics: Jerome Frank
• Rule skeptics: JCG (what judges decide), KL (law jobs), OWH
(bad man theory)
• Illusive facts (what)
• Prediction
• Central role of the judge
• Looks at the process as a whole . They look at the entire
system how it is connected, all the effects, reasons that
affect judge s decision
• Measure the results
• Contributions
• Juri metrics
• Judicial behaviouralism
• Brandeis Brief method
• Criticisms
• It exists as a result or in response of formalism formulated

by Christopher Columbus Langdell.
o The law is analysed based on logic (analytical
deductions and legal reasoning).
o When a judge reaches a decision, what is most
important is for there to be a logical deduction
regardless of the effect and morality
• The realists were against formalism as they felt that logical
deductions did not illustrate the reality of how judges
reached their decisions.
o They rejected theoretical and analytical approaches to
jurisprudential questions
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• The realists were more concerned with enlarging

knowledge empirically and to relate it to the solution of the
practical problems of man in society at present day.
o The law, to them, is both, a result of social forces and
an instrument of social control
• The movement is a combination of the analytical positivist
(considers the law as it is), and sociological approaches (the
law as a product of many factors)
• In attempting to be both, practical and pragmatic (realistic),
they attempted to look at what they perceived to be reality
in the question: How does law work in practice?
o Thus it stresses on the study of the behavior of judges,
whereby its ultimate goal is to be able to predict how
judges decide cases in order to understand what law
is.
o Accurate predictions can only be made once the law is
fully understood
• It seeks to discover how judicial decisions are reached in
reality and discover other factors that contribute towards a
judicial decision
o Law in books legal factors vs law in action non-
legal factors: law not just as it exists in the statutes
and case but as it is actually applied in society)
• Their approach is highly empirical (based on real
experience)
o Law is the product of ascertainable factors (non-legal
factors such as: judges personalities, their social
environment, the economic conditions in which they
were brought up, business interests, trends and
movements of thought, emotions, psychology
o Carlill v Carbolic Smoke Ball: The decision was not
made merely in regards to an invitation to treat; it
was also made out of sympathy towards Mrs Carlill.
o Eg: In deciding whether a harmful business activity is
a common law nuisance, the judge must ascertain
whether the particular activity is reasonable. Realists
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contend that judges who are ideologically inclined to

foster business growth will authorize the continuation
of a harmful activity, whereas judges who are
ideologically inclined to protect the environment will
not
• The realists believed that judicial decisions would better
meet the needs of society if judges were more open about
the non-legal factors that influenced their decisions
Oliver Wendell Holmes (1841-1935; US Supreme Court Justice,

founder of the movement)
• He introduced a predictive approach to the law.
o Law is simply a prediction of what courts will decide;
that if a man does or omit certain things, he would be
punished
• He looked at the law from the perspective of a bad man
o In order to know what the law is, one should view
through the eyes of a bad man, who does not care the
method in which the court applies in reaching a
decision, but who is only concerned with what will
happen to him if he commits a certain wrong
• He recognized that there are many non-legal factors which
influence the law, such as morality, politics and prejudices
o He doubted the general rules or principles of law as
other factors are considered to play a more dominant
role
o the general propositions do not determine concrete
cases; no case can be determined by general
proposition
• The main focus of American realism is judicial decision-
making
o The life of the law is not logic, but experience
o A proper understanding of judicial decision-making
would reveal that it was fact-centered; that judges
decision were often based on person or political
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biases and constructed from hunches, when in fact,

public policy and social sciences should play a large
role
o The indeterminacy (unpredictability) of legal
concepts and legal reasoning led to the need to
explain judicial decisions in other terms (non-legal
factors) and the opportunity to encourage a different
focus for judicial reasoning, namely public policy and
social sciences
o Where the judiciary not only plays an interpretive
role, but also a legislative role, it should become more
open in its use of policy so that there would no longer
be a need to look into precedents and false mechanical
reasoning to understand what was really going on
▪ The very considerations (of what is expedient
for the community concerned) which judges
most rarely mention are the secret root from
which draws all juices of life
• According to him, judges hide all personal tendencies
behind judicial discretion
• In his writings in his long tenure as a Justice of the Supreme
Court, Holmes played a fundamental part in bringing about
a changed attitude to law. He emphasized on the fact that
the life of a law was experience as well as logic and his view
of law as predictions of what courts will decide. He stressed
on empirical (observation rather than theory) and
pragmatic (realistic) aspect of the law
Karl Llewellyn (1893-1962)

• Law is a means to social ends and every part of it has to be
constantly be examined for its purpose and effect, and to be
judged in the light of both and their relation to each other
o The law has to be mould to fit the current and future
needs of the society
o Law must be evaluated in terms of its consequences
(effects on the society)
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• Legal rules as found in books (paper rules) and emphasized

in judicial decisions do not accord with reality and fail to
describe the reasoning processes that judges adopt in
reaching their decisions; they merely provided paper
justifications
o They do not describe what the courts are purporting
to do, nor how individuals concerned with the law
behave (real rules)
o They have taken a life of their own; have become
reified and bear little resemblance to the actual legal
process
o Paper rules have failed as predictors; real rules are
the actual predictors
• He treated the law as an institution; an organized activity
built around a job or cluster of jobs that are fundamental
to the continuance of the society or groups in which it
operates
o Where the institution of law is complex, consisting of
rules, principles, techniques, values and ideas, he
asserted that the concern should be on the institution
as a whole, including the important ideals, instead of
merely concentrating on the rules
• Law has jobs to do within a society if it is to survive and
achieve its purposes and these jobs must be effectively
carried out.
o Law jobs are carried out through officials of the law.
o What judges, lawyers, and law enforcement of
officers (officials of the law) do about disputes is in
itself, the law .
o Law jobs are his way of describing the basic
functions of the law, which enable the possibility of
group survival, and the quest for justice, efficiency
and a richer life:
▪ Resolve disputes between members of the
community: Law helps maintain a peaceful, orderly
society and contributes to this stability by
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providing a means of resolving disputes,

overcoming a wrong done, or attending to a
specific grievance
▪ Prevent or help avoid disruptive conflicts within
the community. Eg: Property law facilitates
business activities, while laws limiting the power
of government helps ensure individual freedom
▪ Accommodate changes in the circumstances of the
community and its members: Law can also be used
as a means of accomplishing social change. Eg: In
the prohibition of racial discrimination; the
establishment of national health and social security
systems
▪ Recognize the authority structure of the
community
▪ Establish procedural rules for performing other
tasks
• The first three law jobs ensure society s survival and
continuation while the later two increase efficiency and
expectations
• His list of law jobs provide a holistic approach to law
making and judicial making activity; they are not merely
about making the law open, accessible and clear, they also
concern the fundamental role and function of law in society
• He considers law jobs as universal and is of the view that
society will develop institutions to perform these jobs
Jerome Frank (1889-1957; a US Federal Judge)

• He insisted that there are 2 groups of realists, namely rule
skeptics and facts skeptics
Rule skeptics
• Rule skeptics (represented by Holmes and Llewellyn) regard
legal uncertainty as residing principally in the paper rules of
law (law in books) and seek to discover uniformities in actual
judicial behavior
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• They are skeptical of formal rules as the major deciding factor

in legal cases or the ability of general rules to provide the
solution to particular cases
• Law in books were considered unreliable in guiding the
prediction of decisions, and that if the real rules were to be
discovered, only then can certainty and predictability be
achieved
• Its aim was to show that simple reliance on rules was a fallacy
and that judges either consciously or unconsciously continue to
adhere to rule formalism
• Judges are seen as unprepared to make clear the real reasons
for their decisions because it would be seen as a betrayal of the
ideal of the rule of law; the idea that the law is neutral and
objective, and not dependent upon any personal factors
• Judges should not feel the need to hide behind precedents
(doctrine of stare decisis), but should instead make policy-
based decisions that are best for the society
• They are committed to the idea that the aim of judicial
decision-making was to increase legal certainty or
predictability
o They considered it desirable that lawyers should be
able to predict that outcome of their clients case that
have yet to commence
Fact skeptics
• Fact skeptics (led by Frank) abandoned all attempts to see
rule-certainty and pointed to the uncertainty of establishing
the facts in trial courts
o He urged that too much attention was devoted to the
processes in the appellate courts and had thus neglected
the lower courts
o Knowledge of what goes on in the lower courts is needed
in order to know what law means to persons in the
lower income brackets
▪ Rule skeptics seek means for making accurate
guesses, not about decisions of trial courts, but
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only decisions of appellate courts when trial court

decisions are appealed
▪ Rule skeptics disregard the question of whether
the facts arrived at in the lower court were real
facts as appeal courts generally do not debate the
facts of a case
• Regardless of how precise formal legal rules are, it will always
be impossible to predict future decisions or in what way the
trial court will decide in most lawsuits because of the
elusiveness or ambiguity of facts on which decisions turn
o There are two main groups of elusive factors:
▪ The trial judges in a non-jury trial or the jury in a jury trial must
learn about the facts from witnesses, who may make mistakes in
observation of what they saw or heard, in recalling of what they
observed or in their courtroom reports of such recollections
▪ The trial judges or juries may have prejudices (often unknown to
themselves) for or against some witnesses, parties to the suit, or
their lawyers
▪ Elusive elements such as racial, religious, political, or
economic prejudices of the judge and the jury may be uniform,
but it is impossible to include all their hidden unconscious
biases as such biases cannot be predicted
• Uncertainty can also be found in the process by which a
material fact is determined
o In a trial court, the law and the facts become
intertwined and are not distinguished from one
another
o Juries, in reaching a verdict, may act on their
emotional responses to the lawyers and witnesses
that they likened or disliked and not on any legal rule
o These mistakes are then adopted and relied upon the
appellate courts
• Rules are mere word formulae, and if they are to have any
meaning at all such meaning must be sought in the facts of real
to which the rules correspond
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• Frank denied that there is certainty in the judicial process and

if the facts skeptics were to be allowed, the elusiveness of facts
would make predictions wholly impossible
Criticisms
• Realism is a mere technology; mere description of what is
transpiring in courts and there is no suggestion of what ought
to be
• The law should be concerned with shaping or reflecting social
change, not with shaping the society
• Realists glorify the judiciary (their stance revolves around
judiciary) to such an extent that it appears as though the
judicial function is at the heart of the law
o They failed to consider that much of what occurs in society
are not brought before the court, thus proving that the law
does not revolve around the judicial function
• Realists have not improved jurisprudential thought but have
only created more arenas to think about
• Realists have completely overlooked the importance of rules
and legal principles and treated law as an assemblage of
unconnected court decisions
• Their perception of law rests upon the subjective fantasies and
life experience of the judge who is deciding the case or dispute
o They overestimate the role of judges in the formulation of
laws. Judges do contribute to law-making to a certain extent
but it cannot be forgotten that their main function is to
interpret the law
• Realists undermine the authority of precedents and argue that
case law is often made in haste without regard to wider
implications
o Courts have to rely on the evidence and arguments
presented to them in court and do not have access to wider
evidence such statistical data, economic forecasts, public
opinion, survey etc
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Defences
• The attack against the doctrine of stare decisis, which ties the
hands of the judges, has helped improve the system of the
lower courts
• The movement have helped judges become more honest and
informed
o Judges would look into non-legal factors when making a
decision and interpret the words of the statute by giving
thought to the effect of their decision on the society at that
point of time
Contribution of American Realist School to Jurisprudence

• The main contribution of realist to jurisprudence lies on the
fact that they have approached law in a positive spirit and
demonstrated the futility of theoretical concepts of justice and
natural law. Opposing positivists view, the realist hold the view
that law is uncertain and certainty of law is a myth
• According to Friedmann, realist movement is an attempt to
rationalize and modernize the law both administration of law
and the material for legislative change by utilizing scientific
method and taking into account the factual realities of social
life
• According to Julius Stoner, realist movement is a glass on
sociological movement. He considers realism as a combination
of the positivist and the sociological approach. Realist school is
merely a branch of sociological jurisprudence and a method of
scientific and rational approach to law
Juri Metrics
o Judicial behaviouralism is a study of looking at judicial
behavior
o It is a study of legal processes by scientific means
particularly through analysis of statistics
o Juri metrics is the scientific investigation of legal problem
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o This is the use of computer programme to extract

information that is to do empirical studies
o There must be a way for data to be processed.
o Empirical analysis of judicial decision may be obtained. It
will help with prediction
o It started because American realism relied on prediction
o Computer programmers are tools
o To find out extra legal factors or non legal factors all are
put on computer
Judicial behavouralism
1. Behaviouralist is an attempt to improve the predictability of
judicial decision making
2. Behavouralist attempt to identify and isolate the extra legal
factors that influence a court s decision by applying method
used in other social sciences
3. For example they undertake the analysis of psychology of small
group of appellate judge. However behaviouralist use a variety
of empirical method to ascertain attitude of judges by looking
at their background, their public statement outside court room,
their judicial opinion and by asking them in interviews or
questionnaires
4. They believe judges are nothing more than policy makers and
precedent or legal rules have little relation to the discovery of
the true uniformity in judicial decision making
• Behaviouralist undertake comprehensive analysis of
individual attitude toward public policy, each other and all
participants in decision making process. Once attitude of
judges are established along these lines it is possible to
develop predictive model because judges are expected to
behave consistently with their beliefs and decision of the
court is a linear function of the decision of individual
member. The only difference is because of life journey
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Brandeis’ brief method

1. He was a justice of US Supreme Court. He defended
constitutionality of a state and sought to find and wrote a
report on what is the suitable hours for women to work.
2. He basically did extensive sociological factors and condition
research which is 95 pages long. He highlighted social
economic reality
3. American law was not out of touch
4. Also to show and try to understand
5. The law is not out of touch
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Scandinavian Realism (EVERYTHING) You might get one or

another OR combined
Exam tips:
• Methodology: priori reasoning and epistemological foundation
• Ross (most important): Directives and norm (relationship),
meaning of binding
• Olivercrona: Psychological pressure, significance of formalities
• Axel Hagerstorm (understand concept)
Where the American realists had a background in the judiciary or

teaching of law, the realists in Scandinavia, who were mainly
comprised of philosophers, approached their tasks on a more
abstract plane
• Scandinavian realists were termed as empiricists
o Those who rely on observation and experiment,
instead of theory
o They believed that no knowledge exists other than
that which is verifiable by the sense; they denied that
they can be any knowledge gained exclusively by a
priori reasoning (logical deduction)
• Their method for the enlargement of knowledge was though
empirical observation
o They viewed the law as an observable fact
o The legal notions of binding force, validity of law,
existence of legal rights and duties, and property were
dismissed as mere fantasies of the mind with ono
actual existence other than that in an imaginary
metaphysical world (in the mind)
• They considered principles or ideas which were not
verifiable as meaningless
o Where legal concepts (rights, duties, ownership)
could not be proven by empirical evidence, they do
not objectively exist
o To invoke such concepts would be meaningless
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• Notions such as rights and duties can only be found in

the mind of an individual and explained as psychological
feelings
• Normativity (binding quality of law; validity of law) is only a
psychological occurrence
o Law is a result of the psychological of individuals
o People who have rights feel that they have power,
while those under an obligation feel that they have to
act in a certain manner
o Law exists only in the sense that words are to be
found on pieces only comes to reality once the mind
compels us to obey it
• Scandivianisms do not speak English as first language. They
were very fascinated with English words regarding law. The
word right means you possess rights or you have rights to
something. One word can have different meaning in different
context
• In conclusion, the methodology of Scandinavian realism is
priori reasoning and epistemological foundation. Basically
it is the study of how people think or how people study things.
• Epistemology is the theory of knowledge. (how you get
knowledge) Basically you investigate, the origin, the nature, the
method and the limit of human knowledge.
• Priori reasoning, means until you prove your theory, your
theory would not be accepted
• They claim they want to establish empirical study, but they do
not actually carry out any empirical studies. They reject
metaphysical argument (natural law). They are very much
committed to epistemological condition and priori reasoning.
They analyze theory and words.
Axel Hagerstrom (1868-1939)

• He denied the existence of objective values
o There is no such thing as goodness and badness in the
world
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▪ Judgments about right and wrong are purely

emotive
o The words simply represented emotional attitudes of
approval or disapproval a person s feeling of like or
dislike) towards the certain facts and situations
o It is only language which transforms the good or bad into
absolutes, thus producing an illusion of objectivity
• Words have created an illusion of compulsion that legal
concepts exist, when in fact such ideas only exist in the mind
o The belief that legal concepts exist is just a response to a
given stimuli which will then result in real effects
▪ The word duty only expresses an idea, the
association of a feeling of compulsion which will
lead to a desired course of conduct
• He denied that it relates to threatened
sanctions, expressions of legislative will or to
the pressures of moral apprehension and
public opinion
▪ The idea of right has no factual basis, but derives
from a feeling of power associated with it, which
has a psychological explanation
• The fact that a citizen is made to understand
that he has a right instills him with the
power and strength to employ it
▪ Ownership is an idea that exists in the minds of
owners and others who leave the owner in an
undisturbed enjoyment of his property
o Questions of justice, aims, and purposes of law are
matters of personal evaluation and not susceptible to any
scientific process of examination
▪ It is dependent upon what lies in the mind of an
individual; such questions must be examined
through a psychological analysis of the mental
attitude involved
• He applied this technique to his study of Roman law
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o He examined the concepts of Classical Roman law and set

forth the thesis that law was rooted in magical beliefs
▪ The fact that law began with religion (the
administration of law was a religious concern) and
the control enjoyed by the class of priests is
evidence that it is based on magic
▪ The law is a result of developments of the belief in
the power of words to affect happenings
o Although through time, belief in magical entities faded
away, people still went on with practicing concepts with
the same psychological effect
o Legal concepts symbolize a psychological reaction to
ritualistic forms (such as the entering of a contract)
which have effects in the real world through their
influence upon the conduct of their subject and other
people
▪ Eg: As a result of a contract for a purchase of a
watch (involving the elements of offer, acceptance
and consideration) the owner of the watch has a
belief in an entitlement to control. The acceptance
of this belief by others and their refrain from
interference results in a situation in which the
owner does actually have control over the watch
▪ The psychological effects of legal concepts are
important for the part that they play in the
regulation of society, namely that obedience to the
law rests not so much on the knowledge that
sanction, exist but rather on the psychological
pressure for compliance that law exerts
Karl Olivercrona (1897-1980)
• He refrain from defining law and expressed that an analysis of
the facts that exist in society is all that is required
o He associated law with the social fact of human
conditions
• He approached the matter of the validity of the law from the
angle of bindingness
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o Law has binding force insofar as it is valid; an invalid law

is not binding
o There is no such thing as the binding force behind law
▪ It is illusory and meaningless; it is not an
observable fact
▪ It only exists as an idea in individual minds
• Laws exist insofar as words are found on pieces of paper, but
materializes when the mind tells an individual to obey it
o Their importance lies in the fact that they exert pressure
on the population, thereby producing behavior
o This results from the fact that most people have a feeling
of being bound by law, which differs from asserting that
there exists a binding force behind law
• Law is regarded as independent imperatives prescribed by
certain agencies (legal bodies)
o They are obligations but are independent in the sense
that the authority to abide by the law exists in the mind
o The feeling of being bound by law is psychologically
associate with certain agencies when they follow certain
procedures, together with the publication of law-texts
through certain media
o Duty involves the idea of action and an imperative mode
of expression and thus, the feeling of being bound stems
from the psychological associations connected with this
mode of expression by certain agencies
o Right suggests a multitude of other ideas relating to
behavior patterns, not only for the possessor of the right
but also of other persons
▪ It implies directors as to how, the right bearer and
others can and should act; informs people about
legal situations; is purposive in achieving or
maintaining a state of affairs; and is a means of
harnessing the force of the state
o His analysis led him to conclude that such legal concepts
do not describe any objective reality but are instead
directives, which produce real effects in the form of
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conduct. Thus, law is nothing but a set of social facts

based on the application of organized force
Alf Ross
• He admits the normative character of law and distinguished
between laws, which are normative and laws in books which
are descriptive
• Law is a system of normative rules concerning social facts
• A norm is a directive which stands in relation of
correspondence to social facts
o To say that a norm exists means that a certain social fact
exists, which is thus followed by people who feel bound
to do so
o Its principal feature is that they are directives addressed
to courts (those is authority; organs of the state),
whether they derive from past decisions or from
legislation
▪ He suggests that there is no need to describe two
sets of directives; one to the population at large
and the other to the courts, as the former can be
understood from the latter
• To know these secondary rules, is to know
everything about the existence and content
of law
• Eg: If a person is aware that the courts are
directed by the law to imprison whoever is
guilty of murder, since imprisonment is a
reaction of disapproval, and a sanction such
person would know that he is forbidden
from committing murder. Thus, a statutory
prohibition against murder is implied in the
rule directing the court and other authorities
to deal with such cases in the required
manner
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▪ The judgment or order from the court then forms

the basis for action by the state, which is a control
of the exercise of force
o Norms can be divided into norms of conduct which deal
with behavior and norms of competence or procedure
which are indirectly expressed norms of conduct (norms
brought into existence according to a declared mode of
procedure)
• A valid law means the abstract set of normative ideas which
serve as a scheme of interpretation for law in action (practice)
• Validity can be established in terms of social facts by
employing empirical methods of observation, which has to
show that a norm is effectively followed, and that the norm is
felt to be socially binding by the judge and other legal
authorities applying the law
o If a judge in interpreting a set of norms, feels that a norm
is binding he will make a decision in which he will adopt
social facts into his judgment, which in turn will be
applied and abided by other authorities
o A valid system of norms are operative (in force) because
they are felt by the judge to be socially binding and
therefore, obeyed
• This scheme of interpretation enables us to explain the
behavior of judges (to understand the actions of the judge as
meaningful responses to given conditions) and to a certain
extent, predict their decisions
• Norms are valid if a prediction can be made that a court will
apply it:
o The degree of predictability that a norm will be applied
determines the degree of its validity
▪ Where the probability is high because the basis is
statute or an established precedent, the degree of
validity is high
▪ Where the probability is low because there is no
decisive authority, the degree of validity is low
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Criticisms
• The approach taken by the Scandinavian realists is a formal
analysis of observing the law; it is not tainted by values
• The approach is not limited to looking at paper rules or law
in books like the American realists
o They consider what occurs in courts and examines how
it affects the minds of individual psychologically
(strength of their approach)
o However, the theories of some of its realists are
considered to be too extreme
• According to them, law is a fact of social conditions
o Although they did not deny the validity of law, they
rejected the idea that law has a binding force
▪ The binding force has no place in the world of time
and space, but must be located in another realm
▪ To believe the law has a binding force is to give up
any attempt of indulging in metaphysics
• They agreed that law is indeed indispensable but rejected legal
ideologies
o Law is not imposed by a higher being nor is it a system of
commands by a sovereign
• Their approach has further expanded sociological
jurisprudence as it insisted that law must be based on social
facts
o The Scandinavian realists have placed the welfare of the
society at the core of their concerns
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Differences
American realists Scandavanism Realist
• American realists are • They are philosophical and

pragmatist. They are attack metaphysical
opposed to legal foundations of law
conceptualization
• American realists are more • They look at legal system
concerned with courts and as a whole. They seek to
their operation. They focus find a scientific theory of
on law in real life rather law without metaphysical
than law in books. explanations. Force of law
According to them, real law could not be explained by
depends on how appellate physical facts alone. Legal
courts interpret written concepts such as property,
words and how trial courts right or duty has no factual
determine facts in reality and law exists by
particular cases. the psychological effects
caused by certain facts
• AR is about getting the • SR focuses on psychological

facts right about law pressures that make people
making and American observe the law. SR looks at
realists were more human psyche
empirically minded.
Similarities
Both schools of realism reject all absolute values such as justice and
both schools have no common voice. The jurists within each
movement do not speak with one voice. Both are realists in the sense
that they want to get behind the curtains they believe concealed the
actualities of law.
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POST MODERNISM. The focus is the central themes of

postmodernism, criticism against postmodernism, what is
meant by legitimation crisis
Exam tips:
• Legitimation crisis
• Common themes
Postmodernism is a late 20th century movement in the arts,

architecture and criticism that was a departure from
modernism
• It is a notoriously ambiguous concept as it is difficult to
define and is a concept that loosely appears in a variety of
disciplines:
o A blurring of distinctions between genres
o A tendency towards reflexivity or self-consciousness
about the production of the work of art
o Rejection of boundaries between high and low forms of
art
o Emphasizing parody, irony and playfulness
o Emphasis on decentred, de-structured, dehumanized
subjects
• Modernism is a rage against existing order and an attack on
form, whereas postmodernism is the realization that there
is no beyond and no place outside of the existing forms
o A movement towards having less confidence in progress
o Disappointment with political failure (questioning the
status quo)
o Skepticism about matters such as justice, where it was
really dispensed in accordance with what people
assumed it was
o The belief in the ability to transcend
• Historically, postmodernism is marked by the dissolution of
the nation-state and other normative social entities (such as
law), the decline in the belief in progress and the blurring of
traditional social roles and identities and a decline in faith in
formal political processes
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The law was traditionally seen as a perfect representation of a

society’s normative order
• However, postmodernists reject this traditional view,
arguing that legislators are just as biased and fallible as
everyone else, which makes it impossible to speak of just one
right way of applying the law
• Postmodernist argue that the presence or absence of laws may
have little effect on the number of incidents (eg: people would
murder each other at the same rate with or without harsh
penalties)
Postmodernism is a response to Jurgen Habermas legitimation

crisis:
• It is one out of the four Crises Tendencies in Advanced
Capitalism which Habermas introduced. Habermas
legitimation crisis theory developed due to the failure of the
Marxist Capitalism Theory
• He argues that a modern bureaucratic state has become
dysfunctional because it has inappropriately interfered with
the functioning of other subsystems, the result of which are
the inefficiencies in managing economic and social problems
and the distortion of human relations, thus indicating the
existence of a crisis
• A state is perceived as being legitimate when its citizens
treat it as properly holding and exercising political power
• A crisis is a state of jeopardy that arises because of
contradicting motivations of the subsystems with a self-
enclosed system
o Within a social system, there exists three subsystem:
economic, political, socio-cultural
▪ The political subsystem of the social system
requires an input of mass loyalty in order to
produce an output which consists of legitimate
administrative decisions that are executed by the
state
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• A legitimation crisis is an input crisis that occurs when the

legitimation system does not succeed in maintaining the
requisite level of mass loyalty
• The legitimation crisis refers to a decline in the confidence
of administrative, functions, institutions or leadership
o With a legitimation crisis, an institution or organization
does not have the administrative capabilities to maintain
or establish structures effective in achieving their end
goals
o A way of measuring a legitimation crisis is to consider
pubic attitudes towards the organization in question
• It is an identity crisis in which an administration fails to
establish normative structures to the extent that is required
for the entire system to function properly
o Every crisis of legitimacy has occurred when a large or
important portion of a society strongly disagrees with
some or all aspects of the institutional norms, as
established and advanced by a particular regime or
government
• As a result, the state suffers a loss of support by the public
when the people judges its administration accountable for
the failure
• When a government loses support, it risks losing its
legitimacy, as the public begins to question and doubt the
grounds upon which the government s claim to power is
built
• Thus, in order to maintain legitimacy, a society, constituted
by both the government and the governed must engaged in
an ongoing and competitive re-evaluation of its goals and
norms to ensure that they continue to satisfy the society s
needs
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Legitimation of a society would then lead to a false consciousness:

When a system is legitimate, it creates the belief that it is just; that it
supposedly represents the people s wishes and interests. In reality,
the concepts are a mere fallacy as the belief in one s own
subordination (submission to the law) is a false consciousness
• The traditional belief that the state is a patriarchal being or
a father figure that will protect the people
• The psychological conditioning or upbringing that tells the
society that that is so
• The imposition of sanctions that reinforces obligation
• The language in the law that creates false belief thus
requiring existing laws to be demystified
o People become accepting of the law and do not strive to
make changes
o People s lack of questioning against the law results in the
system becoming a mere façade.
Criticisms
• It is meaningless. There is no empirical knowledge or value
to it. The theories they present, there is no evidence to back
them up. It lacks content.
• The many emphasis of post modernism tends to contradict
one another
• They don't recognize reality. What they want is personal
reality
• Their theory is relative. It denies any ultimate principle and
it lacks being scientific and post modernism leaves us
without absolute foundations to determine absolute truth
about how we should think and live. Its freedom of
imagination to do as we like.
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Feminism (four main schools of feminism, know what is

school of thought focus on, you will get a very common
question on communism, they all fight for the same thing)
(one asks for equality, another wants to change the entire
standard, etc) (public and private law debate) feminist reject
this public private debate. On one hand, government wants to
regulate on public matters, but the state refuse to help
woman in private aspect. There is minimal laws that seek to
protect woman in private aspects (woman’s choice to work,
domestic violence etc). The laws are not protecting woman so
it is not fair. Radical feminist, argues that prostitutes should
be protected by law (minimum wages and working hours
etc). since you are going to protect woman in public sphere
you should also protect them in private sphere. Women need
help in private sphere aswell. Katherine Mckinnon wanted to
ban all kinds of pornography but there is another group
within the radical group, that says you cant ban it just make it
as a regular job. (right to take maternity leave, minimum
wage etc) Know the criticisms
Exam tips:
• All 4 schools
• Common emphasis, common objectives (empowering
women, improve legal rights and status of women)
• See how 4 schools in the way they contribute to
advancement of legal rights (liberalism: no sexual
discrimination, radical: promote against violence,
pornography, Cultural: maternity leave,
postmodernism: minority groups. Find out how all 4
schools have affects legal education, legal rules,
employment, equality
Introduction
• Feminist jurisprudence is a philosophy of law based on the
political economic and social equality of sexes
o It seeks to analyse and redress traditional legal theory
and practice
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o It focuses on the ways in which laws has been structured

that has led to the denial of women s experiences and
needs.
▪ The use of law as an instrument to oppress women
without regard to women s right.
o It is a strong protest against discrimination and
resistance to injustice to womankind. The character of
law is unjust, insulting, degrading and devaluing against
women
o It focuses on the emancipation (freedom) of women in a
patriarchal system.
▪ Feminists claim that the standards of the society
are all set by and fixed in the interest of men who
are more highly valued than women.
▪ They believe that history was written from a male
point of view and does not reflect women s role in
making history and structuring the society.
▪ Male characteristics are presented as a norm while
female characteristics are considered a deviation
from the norm.
▪ In law, where patriarchy prevails, it is male
experience and perspective that are the reference
point in relation which the law is fixed
o Feminists challenge the belief that the biological make-
up of men and women is so different that certain
behavior can be attributed on the basis of sex.
▪ They believe that gender is created socially not
biologically.
▪ Sex determines matters such as physical
appearance and reproductive capacity but not
psychological, moral or social traits
• In the past, the legal status of women was submerged in men.
▪ Women were treated like chattels, and were considered as
property of their husbands.
▪ Blackstone maxim under the common law: By
marriage, the husband and wife are one person in
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law, that is the very being or legal existence of

women is suspended during marriage.
▪ For example, women lose their maiden name upon
marriage
▪ Women were inferior because of their biological make-up as child
bearers.
▪ They were only considered superior because of
their moral purity, delicacy and civil propriety
(mannerism)
▪ Although there was an increase in citizenship rights of men, an
equivalent was not granted to women, simple legal rights were
not available
▪ Women were not given the right to vote.
▪ A man would be ennobled dignified by possession of the
vote, but a woman would be degraded by it because she
would lost the admirable attributes of her sex like
gentleness, affection and domesticity . In America, a woman
named Susan Anthony was prosecuted for the crime of
voting in an election in 1872.
▪ Women were not granted the right to practice as lawyers.
▪ Most States in America required a court decision, an act of
the legislature or both in order for a woman to be admitted
to the bar. Bradwell v Illinois: A woman could not be
allowed to engage in legal practice. Legal practice was not
meant for women. The paramount destiny and mission of
women was to fulfill the noble and benign offices of wife and
mother
However, feminist jurisprudence is not uniform. Although the
different groups of feminist share the same view of freeing women
from oppression, they each have a distinct aim
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There are 4 major groups within feminist jurisprudence:

LIBERAL EQUALITY MODEL
▪ A model which operates from the liberal legal paradigm
▪ Liberal feminist focus on ensuring that women are afforded
genuine equality.
o They assert that equality amounts to equal opportunity.
o They seek for equal rights for women to be at par with men,
to aspire to make women s lives as valuable as those of men,
for women to be treated just the same.
o Also that, everyone is created as an equal and should not be
denied equal opportunity because of gender
▪ Liberal feminists argue that society holds the false belief that
women are by nature less intellectually and physically capable
than men, thus it tends to discriminate against women in many
aspects
▪ They believe that female subordinate (submission to a lower class;
a state of inferiority) is rooted in a set of customary and legal
constraints that blocks women s entrance to and success in the
public world
▪ Liberal feminists believe that it is wrong to discriminate women in
life s opportunities.
o To deny them a role in the public life of their nations and to
only narrow them down to the opportunity of giving birth
and taking care of children
▪ Liberal feminists focus their efforts on social change through the
construction of legislation and regulation of employment practices
▪ They demand equal opportunities and participation in the
management of the society through legal reforms, increased
participation in the political origins, education and training.
o Emmeline Pankhurst was a British political activist of the
20th century and leader of the British suffragette movement
who helped women win the right to vote. The
Representation of People Act 1918 was amended to allow
women above 30 years old in England to vote and even
stand for election
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▪ Liberal feminism is the most dominant political outlook of the

West in the modern day era.
o They believe that women are rights-bearers, individuals
who have inalienable rights (rights which cannot be
challenged).
o They wish to move together and forward with men
Criticisms
▪ Liberal feminists are individualistic and self-centered.
o Its individualistic assumption makes it difficult to see the
ways in which underlying social structures and values
disadvantage women. These critics believe that institutional
changes like the introduction of women s suffrage right to
vote) are insufficient to emancipate women.
o Liberal feminism focus on the individual and in doing so,
discredits the importance of the community
▪ Even if there are changes in the judicial system that are favourable
to equal rights of women and women are no longer dependent on
men, they would still be living in a largely patriarchal society.
o Only changes in societal mind-set can effect change in the
status of women and no amount of legislature can change
that
▪ Equality arguments cannot succeed in obtaining justice for
women.
o Where the law has defined women as being different from
men, legal subjects cannot be constructed as gender neutral.
o To argue otherwise would be to ask for the law to be blind
and disregard the concept of man and woman.
o Liberal feminists have no regard for differences between
sexes
▪ Liberal feminism reflects only the values of middle-class white
woman and has largely ignored women of different races, cultural
or classes
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RADICAL FEMINISM
▪ This model focuses on differences between men and women and
supports affirmative measures to challenge inequalities
▪ Radical feminists narrow their focus to the more biological aspect
of women
▪ They reject liberal feminism and view the legal system as a
mechanism for the continuance of male dominance
▪ Catherine Mackinnon is the leading feminist of this model
▪ McKinnon argues that women s sexuality is socially constructed
by male dominance and the sexual domination of women by men
is a primary source of the general social subordination of women.
o Women have been socially conditioned to want and wish
what men expect from them.
o Thus, it is through sexuality that men dominate women
▪ Radical feminists believe sexism is so deeply rooted in society that
the only cure is to eliminate the concept of gender completely.
o They claim that the entire traditional family system is sexist,
where men are expected to work while women are expected
to care for children and clean the house.
o This traditional dichotomy maintains men as economically
in power over women and should be rejected.
o They questioned as to why women must adopt certain roles
based on their biology, just as why men adopt certain other
roles based on gender.
o They suggest changes such as finding technology that will
allow babies to be grown outside of a woman s body to
promote equality between men and women.
▪ This will allow women to avoid missing work for
maternity leave which they argue is one of the reasons
why women are not promoted as quickly as men.
▪ McKinnon asserts that the very nature of law and legal method is
male and thus existing law is totally inadequate.
o The source of women s exploitation is men themselves.
o Oppression of women is a result of the laws regulated by
men.
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▪ Mackinnon proposed for women to take control of

these laws.
▪ They fought for laws of abortion, which disregards a
woman s right to her body.
• The King v Bourne: Women should have the
right to abortion pursuant to Article 12 of
CEDAW
▪ They believe that sexual violence arises as a result of
an increase in pornography, which should be
regulated.
▪ They believe that the law on rape is structured from a
male standpoint.
• When the judge examines a situation of rape, it
is man s perception and not the woman s sense
of injury that prevails.
• There is a tendency for the judge to presume
consent in cases involving a prostitute, a
hitchhiker, or a woman dressed in a short skirt,
thus shifting the blame onto women
▪ Radical feminists argue that the legal system, either parts or as a
whole must be abandoned.
o It needs a fundamental overhaul in order to become a good
tool to serve the needs of women.
o Law which only seek to enhance the position of men should
be looked into and revised.
o There should be changes in the law and special treatment to
deal with inequalities of powers. Through their efforts,
radical feminists have left a profound effect on the law
▪ People of California v Inez Garcia: A woman claimed that two men,
allegedly her boyfriend and his friend had attempted to rape her.
She struggled and managed to kill them. She was convicted for
second-degree murder and spent two years in the California
Institution for Women before her appeal was heard.
o At her retrial, a feminist attorney, Susan Jordan, argued that
the law on the defence of provocation is distorted as it is
biased against women and fails to take into account the
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nature of women. The argument convinced the jury and was

freed.
o This case was constructed in the legal circles as a ruling in
favour of a woman s right to use deadly force against sexual
assault which caused the law on the defence of provocation
to be looked into
▪ R v Ahluwalia: The defence of provocation should be revised
because unlike men who immediately retaliate upon grave danger,
women are more patient and tend to accumulate the suffering and
tension that they have felt until a point where they lose control
▪ R v R: The defendant was charged for the attempted rape of his

wife. It was argued that the implied consent by the wife was given
by having remain married to the man and that it acts as a lawful
defence. However, HOL, overturned the matrimonial exception to
rape and upheld the defendant s conviction.
o Marriage in modern times is regarded as a partnership of
equals, and no longer one in which the wife must be the
subordinate chattel of the husband.
o The proposition that by marriage a wife gives her
irrevocable consent to sexual intercourse with her husband
under all circumstances and irrespective of the state of her
health or hose she happens to be feeling at the time is
unacceptable in modern times.
Criticisms
▪ Radical feminists are oppositional in nature, thus they suffer from
problems in confrontation, making it hard to see what they want
from men
▪ Radical feminists over-emphasize factors that separate women
from men, such as a woman s biological aspect
▪ It is not practical to abolish the concept of gender completely as
by nature, women and men are different and have different needs
▪ Despite rejecting the liberal feminism model, they have pointed
out that the law itself is of male dominance.
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o Thus, they too wish to be protected as women, which shows

that they are impliedly promoting equality whereby women
is entitled to be subjected to the same undiscriminating law.
CULTURAL DIFFERENCE MODEL

▪ The cultural difference model emphasizes the significance of
gender differences and holds that these differences should not be
obscured by the law but should be taken into account by it.
o Women are different in disposition and nature from men.
o Only by taking into account such differences can the law
provide adequate remedies for women s situation which is
infact distinct from men s
▪ Carol Gilligan is a leading feminist of this model
▪ Cultural difference feminists seek to be identified as men and
women.
o Law must take into account the women s point of view
▪ Gilligan asserts that men and women have different voices even if
they use the same language.
o Men value individual achievement where women s morality
is based on connections and human relationships.
▪ Women s concept of value revolves around intimacy,
nurturance, community, responsibility and care,
whereas men s concept of value revolves around
autonomy, individuality, justice and rights.
o Men and women reason out differently in solving problems.
▪ Men focus on general entitlement, how problems
should be solved.
• Women emphasize on personal things, seek
compromises so that everyone s feelings would
be taken into consideration.
o Women think in terms of the needs of
others, rather than the rights of other
because women materially, physically and
psychologically provide for the needs of
others
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▪ By virtue of the differences, they seek for the law to address such
differences in men and women, even in regards to trivial things.
o Cultural difference feminists accept women for being
women.
o They seek for the society to value feminine quality.
o Women have different needs which require different legal
remedies, thus the law must recognize differences that are
relevant to women s lives, status and possibilities.
o For example, they argue that special treatment should be
accorded to women in cases such as pregnancy as it is
different from general sickness or disability. If sufficient
maternity leave is not given, this may cause women to lose
jobs
▪ Noorfadilla Saikin v Chayed Basirun: Such
biological function should not be a reason for women
to lose their jobs because the law must recognize this
aspect of a woman
▪ Section 37 of the Malaysian Employment Act
recognizes women s right to be paid maternity leave
of no less than 60 days.
▪ Michael M v Superior Court: A 17 year old boy was charged for

statutory rape and sought to challenge the statutory rape laws,
where it is provided that it is an offence for a man to have sexual
intercourse with a woman under 18 years of age. It was contended
that the law denied him equal protection because he was being
prosecuted and his 16 year old partner was not.
o In applying the cultural difference approach, the court
rejected the contention and held that women are exposed to
the risk of pregnancy and there was no need for them to be
exposed further for the risk of prosecution. The right to
equality fails to recognize that women are more likely to be
sexually exploited than men
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Criticisms
▪ Cultural difference feminists undermine the capabilities of women
to go beyond what they are capable of
▪ Their approach causes women to be limited to certain type of
attitudes and characters.
o Women who do not fulfill the character may seem unnatural
or underdeveloped.
o It is also contradicting in a sense that even if a woman
fulfills all the feminine qualities, she will be considered as a
mother and value but at the same time, she might be
devalued by society because the only role she plays is that of
a mother
POST-MODERN FEMINISM
▪ Post-modern feminists claim that there is no such thing as
women s universal right
▪ Each person is different and each individual must be considered in
accordance with her own needs and aspirations
▪ The quests of other groups are only reflective of Western-
Caucasian women.
o The groups cannot be grouped together and consider their
approach universalistic
▪ They object to the idea that there can be any universal women s
voice and have criticized feminists for implicitly basing their work
on the experiences of white, middle class, heterosexual women
▪ They claim that women s subordination has no single cause or
single solution
▪ They seek to explore the ways in which race, class, sexual
orientation and other aspects of subordination interact with
gender and to uncover the implicit, detrimental assumptions that
have often been employed in the different feminists models
▪ In recognizing this approach, the Convention on Elimination of All
Forms of Discrimination against Women (CEDAW) allows each
State party to make reservations suited to women within the
country.
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o For example, Malaysia which ratified CEDAW in 1995, has

made a reservation against Article 16 which accords equal
rights and obligations upon both parties to marriage during
and after its dissolution
Criticisms
▪ Post-modern feminists do not offer a specific solution on clear
path to action
▪ The model is very anti-essentialist as it holds no belief in an
essence of feminism, such as sex or gender as propounded by the
other models.
o This causes the model to run the risk of weakening the basis
of any politics of action based on the differences between
men and women
General criticisms against feminism (Anti-feminism)

▪ Feminists claim that male perspectives are biased, but fail to
realize that women s perspectives are biased too.
o Feminists cannot escape the criticisms that feminisms
promotes the female perspective
▪ The post modern feminism movement itself represents the idea of
individualism, which is a male inclination or trait
▪ Each model of feminism have different ideals.
o They are all opposed to one another, which gives rise to an
individualistic approach
▪ Feminism has resulted in changes to society s previous norms
relating to sexuality, which is deemed as detrimental to traditional
values or conservative religious beliefs.
o For example, the decline of marriage
▪ Many traditionalist (anti-feminists oppose women s entry into
the workforce, political office and the voting process, as well as
the lessening of male authority in families.
o They argue that a change of women s role is a destructive
force that endangers the family and is contrary to religious
morals.
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o It is claimed to be social disaster that continues to take its

toll on families and contributes to a descent by increasingly
disconnected individuals into social chaos.
▪ Some claim that feminism is a denial of the natural differences
between the genders, and an attempt to reprogram people against
their biological tendencies.
o Despite promoting equality, feminism ignores issues of
rights unique to males.
o The feminist movement has achieved its aims and are now
seeking a higher status for women than for men through
special rights and exemption
Programme of action
Where the four different models of feminism have failed to reach a
consensus on a particular aim for achieving equality and dignity of
women, programmes of action are thus required in order to adapt
the approaches towards one goal
1. Prevention and raising awareness:
• Prevention initiatives are grouped into two areas of focus:
o Educate to change attitudes and behaviours and to
promote respectful, non-violent relationships
o Engage organization and communities to promote
gender equity and stop violence.
▪ Actions to address the underlying causes of
violence against women and children including
unequal power relations, adherence to rigid
gender stereotypes and broader cultures of
violence
• Article 5 of CEDAW enjoines State Parties to take all
appropriate measures to modify social and cultural patterns
of conduct of men and women with a view to achieving the
elimination of prejudices and custom and other practies
based on the idea of inferiority or superiority of either sexes
or on stereotyped roles for men and women
• Existing organization in Malaysia are consistently
advocating for women s rights:
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o Women s Aid Organisation has aims such as:

▪ To undertake and advocate with governmental
and non-governmental organizations the
eradication of factors that contribute to the
inequality and subordination of women through
law, policy and institutional reforms.
▪ To create an awareness and better
understanding among individuals, public and
relevant agencies on the issues of violence
against women and the underlying inequalities
o Sisters in Islam launched a Musawah project which is
a global movement for equality and justice in the
Muslim family, to create awareness to all the wives
and women regarding the protection available for
victims of abuse and sexual harassment
2. Welfare equality:
• Women, despite their ability to bear a child, should be
accorded equal opportunities of employment and wages
• Gabrielle Defrenne II: It is the purpose of the law to ensure
equality between all persons. Therefore, a woman should enjoy
the same rate of wages and entitled to the same benefits and
pension plans that men of equal qualification are entitled to
• Unlike in Beatrice Fernandez v Sistem Penerbangan Malaysia,
where the court upheld the validity of the contractual term that
prohibited the appellant from being pregnant whilst employed
as a stewardess, women should not be prohibited from
engaging in a certain field of work due to their biological
nature
3. Fundamental freedom
• To ensure that there were no more discriminatory laws or
practices against women both in public and private sectors as
well as in society at large in 2001, after submissions from the
Ministry of Women, Family and Community Development
(MWFCD), SUHAKAM, Women NGOS, the government decided
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to amend Article 8(2) of the Federal Constitution by including a

gender as a basis for non-discrimination
o Noorfadilla Saikin v Chayed Basirun: The plaintiff s
placement as a temporary teacher was withdrawn upon
the discovery that she was 3 months pregnant. The court
held that the defendant s act of revoking and
withdrawing her placement because she was pregnant
constituted a violation of Article 8(2) of Federal
Constitution.
▪ This is in line with a women s right to be pregnant
and to have equal opportunity to the access of
employment during such pregnancy under Article
11 of CEDAW and Article 3 of CEDAW which
guarantees women s exercise and enjoyment of
human rights and fundamental freedom including
the rights to control her body
4. Legal recognition
• In the past, due to high levels of prejudice, judges refused to
regard women as being covered by the word person in a
statute
o Wilson v Town Clerk: A group of women whose name
were struck off the register argued that the revising
register was not empowered to do so. The court held that
removing the name of a woman from the voter roll was
equal to removing the name of dog of a horse and since
women were not persons within the meaning of the
statute, they had no locus standi to bring the case
• Women have since been accorded the legal recognition that
they rightfully deserve:
o Section of Married Women Act: Recognizes women s
right to sue and be sued as though she is an unmarried
woman.
▪ Women are no longer considered as a subordinate
chattel of her husband
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▪ Merrit v Merrit: Women have the right to take legal

action against their husband for a breach of
contract
• Section 4A of Married Women Act allows women to take action
against their husbands for tortious acts resulting in injury
o Yeo Bee Lin v Lee Eng Chee: A wife sued her husband for
inflicting severe injury on her by forcing her to listen to
his sexual exploits with another woman
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Marxism
Exam tips:
• Class conflict, class antagonism
• Revolution of proletariats
• Withering away of the law and state
• Superstructure
• The theory of Karl Marx. He wrote a book on ideal
society. He is a Russian and he lives during the time of
Russian kings. Working class hated them. If you are very
rich you can own land. Other people are like slaves.
• Marx’s work appeal to working class. He talks a lot
about equality, the fact that land owners are not the
ones who work for it. on paper, it is very good. His
premise is that everything should be divided equally.
• Long after he died, starlin picked up this idea. After he
died, they picked up his work. The Russians started
communism, and then followed by chinese. The version
of communisms are different.
▪ Law is a class struggle between the ruling class bourgeoisie and

the working class (proletariat)
▪ Many factors contributed to the rise of the movement:
▪ The critical spirit of positivism and advances in contemporary
science cause people to challenge existing standards
▪ Positivism was disfavoured by many who dissatisfied with
existing conditions, and was regarded as a tool used to hide
injustices
▪ The new movement was said to have exposed the injustices
concealed
▪ The failure of religious ideals lead to the substitution of
materialist ideals
▪ The want for improvement of the condition of the poor and
working class, who found hope and encouragement in the
movement
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Karl Marx
The interpretation of law as part of an economic interpretation of
social evolution is a by-product of the social and political theories of
Marx and Engels, which have since been put into practice by the
Soviet Union and other countries
▪ Marx believed that social phenomena were governed by a
universal principle, namely the economic principle
▪ He was of the view that material and economic forces were the
determinant factors of development
▪ People are not influenced by the state but by material conditions
▪ Economic factors greatly influence legal and political conditions
▪ He adopted an approach referred to as historical materialism
▪ The approach looks for the causes of developments and changes
in human history in economic, technological and material
interests among social classes
▪ The economic system was considered as the base , which is
reflected by and influenced the superstructure which
encompasses the law, the state, arts, literature, morality, religion
and all other aspects of humanity s social consciousness
▪ In the context of the class struggle, the proletariat is the base
while the bourgeoisie is the superstructure
▪ The bourgeoisie will enact laws that are favourable towards their
own interests
▪ Law, politics and religion are nothing but opiates (drugs) to
prevent the proletariat rising above the class struggle
▪ Marx visualized history as unfolding according to the recurrent
conflict between a thesis and an anti-thesis
▪ Thesis -> Anti-thesis (where people are against an idea) ->
Synthesis (solution to conflicting ideas (recurring cycle)
The development of historical materialism could be illustrated

through several different stages of class struggle
• Primitive stage or primitive communalism
o The existence of mankind at a time where there was no
technology and the only aim was sustenance and survival
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▪ Members of this primitive tribal society had to

work together to obtain resources
▪ Marx was of the view that this society contained no
anti-thesis within itself as long as there was equal
distribution of commodities
▪ Social control was though communal morality and
social pressure
o However, this order was then tainted with selfishness
and greed when eventually one person would invent a
tool or weapon to be used (unprecedented creations)
that would ease the gathering of resources
o Inequality arose from one person having one extra
instrument of labour, causing that person to acquire
more health, thus resulting in a division of society
o When distribution became unequal, the society was
destroyed and split into classes patterned by the division
of capital and labour
• Slave mode of production (ownership of people)
o The person who had acquire more wealth in the
primitive stage had caused societal division, thus
creating a stronger class
▪ Members of the society which are of a weaker class
would then be selected as slaves
▪ People became chattels that were used for
entertainment or slavery
o Eventually the tribal society would be replaced by the
state, which became the instrument of the stronger class
▪ The state sought to uphold the status of the
stronger, ruling class
o This class struggle caused an uprising by the weaker
class in the society
• Feudal mode of production
o People were no longer treated as slaves; no longer
belonged to slave-owners
o Landlords who had the luxury of owning land owed their
loyalty to the king
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o People of the masses were hired to work on the land

(serfs) for the landlords; sers lived within the mercy of
their lords
• Capitalist mode of production
o Property laws were legislated and serfs were now
allowed to own property
o Capitalists began to own their own modes of production
and serfs were free to sell their labour for wage
▪ The end product would be sold by the capitalists
who would pay pittance to the labourers and keep
the profits to themselves
▪ Labourers would receive much less compared to
the labour they put in (cheap wage)
• The value received does not commensurate
with the amount of labour put in
▪ There was a domination of the laboring majority by
the minority, which was in control of the country s
economic resources
o Eventually a class struggle emerged between the ruling
class (bourgeoisie) and the working class (proletariats)
▪ Marx: Proletarians are people with nothing but
their hands , Proletarians have nothing to lose but
their chains
• They have nothing but skills and services to
offer
▪ Property would mostly be owned by the
bourgeoisie
▪ Proletariats were naturally antagonistic toawards
the bourgeoisie
o Laws were continued to be used by the ruling class to
control and oppress the working class
▪ The political system was liberal and democratic
▪ Laws were passed to accentuate the powers of the
ruling class as against the working class
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▪ The courts were supposed to protect individual

rights, but the only people who had the rights to
property were those of the ruling class
• Revolution (socialist mode of production; proletarian
dictatorship)
o The tension suffered in the capitalist mode of production
would eventually break into conflict, causing a revolt of
the majority against the minority, and the majority would
attempt to gain control of the economic resources and
seek to eliminate the minority
o This is brought about by a revolution of the proletariat in
which they overthrow the bourgeoisie and became the
ruling class
▪ Attempt to transform the capitalistic mode of
production
o The dictatorship of the proletariat is said to represent
the highest form of democracy possible in a class society
▪ Though it is a dictatorship, it is also a democracy in
the sense that it has been formed by the masses
and acts in their interests
▪ The distribution of commodities (resources,
wealth at this stage follows the maxim: From
each according to his ability, to each according to
his work
o Inequality inevitably persists and the state organization
continues to be necessary
▪ In their attempt to demolish the bourgeoisie, a
classless society cannot yet be formed as there is
still a need to use the law as an instrument of
domination (to force people to work, to punish
people for crimes and wrongdoings)
• Communist mode of production
o The conflict in the proletarian dictatorship will
eventually cause the emergence of communism or a
classless society
o Domination will cease, inequalities will vanish
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▪ Production has reached a point where everyone

can be supplied with their need without having to
force them to work
o The state and law will wither away as there is no
necessity for its existence
▪ Where law is defined as a class struggle between
the ruling class and the working class, the absence
of a class struggle would diminish the need for law
▪ Absence of inequality will result in no criminal
activities or other forms of wrongdoing
▪ Conflict between individuals would be solved by
way of an emerging public communist morality (an
administration of things)
o Man is by nature equal and free, and only in the
communist society would he be able to realize his true
self
▪ The individual will only be liberated when the
mass is liberated
▪ Everything for the mass
From these stages of development, there are four doctrines
which can be deduced
• Doctrine of the economic determination of law: The
bourgeois society is an ideology distorted to suit the ruling
class, namely to quieten the masses and further their own
economic interests
• Doctrine of the class character of law: Law is an instrument
used by the economic rulers to keep the masses within their
control; an instrument of domination
o Even after the establishment of the proletarian
dictatorship, law will continue to be used as an
instrument of the proletariats to crush and eliminate the
capitalist minority
o There will still be the need to force people to work, to
punish wrongdoing, to eliminate counter-revolutionary
activities and to maintain, to a certain extent, some
inequality of distribution
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• Doctrine of the identity of law and state: The state came into
existence at the emergence of unequal distribution of
commodities and societal division between classes. Law was
one of the means used by the capitalist minority to preserve
and increase its power, while those who had property sought
to protect it from those who did not
o Thus, the law and state in a capitalist society formed a
tool of compulsion used by the minority to oppress and
exploit the working class
o Even in the proletarian dictatorship, the law and state
remains as instruments of compulsion and domination
o The state, thus reflects an essentially unequal condition
of affairs
• Doctrine of the withering away of law and state: When the
communist or classless society emerges, there will no longer be
any domination or inequality
o The instruments of domination (la and state) will wither
away and be replaced by an administration of things a
form of regulation of conduct
▪ No special machinery will be required to deal with
criminality and wrongdoing
o This follows from the thesis that law is but the reflection
of an oppressive economic system. Thus, once
oppression is removed, there will be an economic system
without law
• Once revolution takes place, a new group will seize power from
the state and they will transform the state whereby everything
you use will be state property. Everything you produce will
belong to the state. There will be no more exploitation of the
classes. The state will truly be representatives of society as a
whole. All method and means of production will be taken over
by the state. The state owns everything. The state in that sense
would wither away, the state would no longer be independent.
Once the state is in control of the means and method of
production, there is no need for states to interfere in a social
relations between men. From there the state becomes
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superfluous (does not exist). Over time it will wither away.

When a state cease to function, it dies. It does everything for
society on behalf of society. The government of persons will be
replaced by a different administration and this administration
will direct the process of production. They will direct what to
produce, how much and who should produce what. Once you
reach that stage that is the stage of communism. You have to
got through several stages to reach that level
• To achieve communism there are 3 stages: 1. Establish a
proletarian dictatorship, which is important to convert the
capitalist modes of production into the proletariat mode of
production 2. The stage of nationalization of the property and
all capital modes of production. All private property is
nationalized. People no longer own private property. 3. The
stage of socialism as the property is in common ownership
and society at large shall be responsible for the production and
distribution of goods (communism)
• Once you reach that you have perfect imagination of
communism. Marx admits somehow there will be inequality.
The ultimate aim of communism is for you to achieve this level.
The condition of society is such that the state diminishes and
state becomes this huge thing which controls everything. The
Bourgeoisie state is overthrown by proletariat state. The states
would represent of all the classes. It represents the social will
of classes.
• You do not have individual choice you have collective will.
What you want is collective will. The state will decide what is
necessary. This is the failing of communism. Instead of getting
equality you get a group of people dominating you.
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The characteristic feature of law in the Marxist theory is that it

is an instrument of domination and exploitation wielded by
capitalists against workers. Aside from this, it also takes on
other functions
• To regulate interests and activities, or to some extent, coerce
people into doing certain things to enable the society to
function efficiently
o Even after the emergency of communism, Engel suggests
that there will be an administration of things which
implies that regulation and judging of conduct will
continue
• To preserve security and moral standards; possesses an
educative function
o This is especially necessary in the stage of the proletarian
dictatorship which has to educate the masses in the
values of communism, as well as in the stage of
communist society where each new government needs to
be educated
• To restrain oppression by classes or individuals
• It gives a practical expression to the balance that has to be
struck between competing interests
• It satisfies the ineradicable human craving for justice and
certainty, both of which requires rules and precedents
Criticisms
▪ Law as part of the superstructure is said to reflect the economic
base of the society and the main ideology in Marxism that the law
is used as an instrument of domination to oppress the working
class
▪ However, there exist laws which contradict the ideology and do no
pose as a form of oppression against the working class
▪ Eg: Law on the sale of goods, employment laws protecting
employees at their place of work
▪ There also exist laws which are seen as too remote from the
supposed class oppression. Where the ruling class is determined
to maintain the status quo, laws which help preserve social order
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and an acceptable level of morality cannot be regarded as an

instrument of oppression
▪ Eg: Family law, criminal law, probate and intestacy, wills
▪ Marxism divides society into two different classes, namely the
bourgeoisie and the proletariat
▪ However, this act of class reductionism (an oversimplifying of the
class position into only two classes) no longer apply in the present
day where members of the working class are seen to form part of
the ruling class
▪ Not all those who have control over modes of production
necessarily own them; in some instances, members of the working
class are the owners
▪ Members of governmental institution (the ruling class) such as the
judiciary, police force etch do not necessarily have different
ideologies as compared to members of the working class
▪ In the communist mode of production, in order to achieve a
classless society, Marxism proposes for there to be a
redistribution of wealth so as to eliminate all forms of inequalities
▪ However, this is said to oppose the principle of voluntary free
trade
▪ Capitalism is vital as the absence of voluntary economic activity
would pave the way for political leaders to grant themselves
coercive powers
▪ Marxism suggests that in capitalists societies, the bourgeoisie will
accumulate increasing wealth, while the proletariats become more
dependent on the ruling class for survival, selling their labour
power for the most nominal of salaries
▪ However, capitalism in some countries is said to have assisted
both classes in a society to earn a steady increase in wealth, as
well as assist third world countries successfully escape poverty
▪ Not all those who have control over modes of production
necessarily own them; in some instances members of the working
class are the owners
▪ Members of governmental institutions (the ruling class) such as
the judiciary, police force etc do not necessarily have different
ideologies as compared to members of the working class
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▪ In the communist mode of production, in order to achieve a

classless society, Marxism proposes for there to be a
redistribution of wealth so as to eliminate all forms of inequalityes
▪ However, this is said to oppose the principle of voluntary free
trade
▪ Capitalism is vital as the absence of voluntary economic activity
would pave the way for political leaders to grant themselves
coercive powers
▪ Marxism suggests that in capitalist societies, the bourgeoisie will
accumulate increasing wealth, while the proletariats become more
dependent on the ruling class for survival, selling their labour
power for the most minimal of salaries
▪ However, capitalism in some countries is said to have assisted
both classes in a society to earn a steady increase in wealth, as
well as assist third world countries successfully escape poverty
▪ Marxism would not survive in a rule of law society
▪ Eg: In Malaysia, where the Federal Constitution is regarded as the
supreme law of the land (Article 4(1), the concept of law and the
state will not wither away regardless of the absence of a class
struggle)
▪ Ah Thian v Government of Malaysia: The purpose of law is to
create order, and order can be preserved through the rule of law.
Without the rule of law, chaos would exist
Marxism in Russia (1917-1991)

Pre-Revolutionary Russia (before 1917)
▪ Marx thought that industrialization and capitalism were necessary
steps for society to go through before the working class could
arise and institute communism
▪ Before the Communist Revolution, the Russian Empire was a
monarchy, ruled by a tsar (an emperor of Russia). Russia was
largely an agricultural country and was in the very early stages of
industrialization during Marx s lifetime. Thus, the Russian
government did not consider Marx s writings to pose a serious
threat
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▪ Marx s writings The Manifesto and Das Kapital were allowed to

be distributed in Russia eventhough they were banned in many
other countries
Influence on Revolutionaries
• Marx s writings had a profound impact on Vladimir Lenin and
Leon Trotsky, who would in turn promote communist ideas in
Russia through publication of a Marxist periodical called
Iskra The Spakr
• Lenin became the most influential figure in early Russian
communism. After the Russian Revolution, successfully depose
the tsar s regime, Lenin s bolshevik branch of communism
rose to power and quickly assimilated or deposed other
socialist groups
o Lenin modeled his goals after Marx s but on a smaller
scale
o Marx believed that the communist revolution would take
on an international scale
o Lenin realized that he lacked the resources to make that
happen and contented with himself with seeing
communism succeed in Russia
o Lenin firmly believed Marx s idea that society must go
through a period of dictatorship of the proletariat before
the true communism could be achieved
Trotsky and Stalin
• After Lenin died in 1924 there was a brief of power struggle
between two of his chief lieutenants, Leon Trotsky and Josef
Stalin
• Trosky believed that the world needed to be in a state of
constant revolution for communism to survive
• Stalin believed that communism could succeed in a single
nation and that it could coexist with other forms of government
until other countries working class staged their own
revolutions
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• In the end, Stalin came into power and his view of Lennist-
Marxism prevailed in Soviet Russia. This included a small but
powerful ruling party which would enforce the Communist
party s policy brutally when deemed necessary
Post-Stalin Russian Communism

• Under Stalin, any supposed challenge to the Communist Party s
leadership was dealt with severely
o Political opponents were often assassinated, and
religious leaders were persecuted
o Stalin s dictatorship resulted in approximately million
deaths
o The Communist Party had dictated most aspects of the
Soviet people s lives dictatorship by the proletariat
• The leaders who followed him each made changes relaxing
some of the harsher controls on the Russian people. This came
as an acknowledgement that Stalin had not exemplified the
best ideals of Marxism
• In the end, Russian leaders in the 1980s and early 1990s
acknowledged that the Communist Party in general had failed
to live up to its ideals as the representatives of the working
class and Communist Party rule was ended
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Theory of Adjudication
Exam tips:
• Definition of judicial activism
• Judicial passivism or restraint
• Dworkin
• Malaysian judiciary promote judicial activism or
passivism
• Pros and cons
• Cases
• Tools that can be used to aid judicial activism: practice
directions, hansards, preamble, precedent, discretion,
judicial reasoning, statutory interpretation,
1. The theory of adjudication looks into how judges arrive at
a decision
2. Ronald Dworkin’s theory of law is that the nature of legal
argument lies in the best moral interpretation of existing
social practices. Thus, all judgment ought to rest upon the
reasoning that people are equal as human beings
irrespective of the circumstances in which they are born
Rule and non-rule standards:

o Rules are in fact the law, whereas non-rules standards
(principles, maxims, etc) lie not in the legislature or the
court but in the realities within a society
o Rules and principles are both standards but that which
differ in their nature. A rule determines an issue or
provides nothing on the issue. A principle does not
dictate an answer but merely follows a direction; gives a
reason. All principles pertain to the domain of morality,
which upholds Dworkin s belief that law is and ought to
remain, rooted in morality
o In some instances, the complete adoption of the black
letter law has resulted in injustice. Thus, judges are
allowed to ignore the rules that had been set and to apply
non-rule standards
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▪ R v Dudley & Stephen (passive): The judges simply abided by

the express rules of law in regards to murder, which resulted in
the men s conviction without taking into consideration the
necessity brought about by the circumstances in which the men
found themselves in that is stranded in the middle of the ocean
and fighting for survival
▪ Riggs v Palmer (active): Elmer murdered his grandfather by
poisoning him out of fear that his grandfather might change his
will because of a remarriage. Although he was convicted and
sentenced to imprisonment, the Statute of Wills (New York) did
not disinherit a murderer. However, the judges refused to follow
the express rules and decided that Elmer should not be allowed
to profit from his own wrong thus providing for a decision that
proceeded on a principle
o A hard case is one that is difficult for a judge to decide
because there is neither clear law (or law at all) to apply
to it, nor any precedent that covers the case
o All rules produce hard cases which cannot be resolved by
the logical application of the rule itself
o In such instances, the task of the judge is to provide a
morally charged and constructive interpretation. This is
where the substance of a legal argument plays a
significant role
o Even in hard cases, there is always a right answer, which
judges should try to find and give but this is not supplied
by the existing rules. The judge can only arrive at such a
right answer by applying the legal principles which are
implicit or underlying the law. A right answer is one
which produces a better fit with the existing law and
legal practice
o In order to find a right answer, a judge must evolve an
all-embracing philosophy of law, particularly in hard
case.
o Dworkin asserts that judges judicial decisions should fit
with the institutional and constitutional history of the
law (settled law and past political decisions) and have
judicial integrity whereby it should promote justice and
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fairness (morally sound) and be a result of the exercise

of equality
o Judges must view the law holistically, apply the law as if
it were a seamless or continuous web, weigh formal
rules against non-rule standards and weigh principles
against each other
o However judges must always try to uphold the rights of
parties. Principles identify the rights of individuals thus
in any given case, where a right comes into conflict with
any policy, the right must prevail
• Mohammad Nizar Jamaluddin v Dato Dr Zambry Abdul
Kadir: The Constitution must be construed liberally as in any
case, the interests of an affected party must be given significant
consideration as compared to mere legislation
Active or passive approach:

1. Judicial passivity encourages judges to exercise restrain upon
their power in deciding a case. This approach upholds the
doctrine of stare decisis, which stands by the need for
precedents in order to establish guides to future conduct and
applies not merely to legal systems but also to all rule or norm
creating bodies. A passive judge is one that merely interprets
the law and does so within the boundaries of precedents (lack
of application of non-rule standards). For example, a passive
judge is more inclined to give a stricter interpretation and
would say that the Constitution should be interpreted to
achieve the intention of the original framers. However the
danger in a judge s tendency to follow the past precedents is
that it may lead to stereotyped procedures and weaken
progress of the law. For example, the case of R v Dudley &
Stephen.
2. Judicial activism is a philosophy of judicial decision-making
whereby judges allow their personal views about public
policy among other factors to guide their decisions. It refers to
judicial rulings that are purportedly based on considerations
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other than that of existing law (non-rule standards). Activist

judges are those who in discharging their functions exceed
what the Constitution provides, or what history defines or
what the contemporary society expects of them. It is a
departure from the doctrine of stare decisis. An activist judge
provides a dynamic interpretation of the law. For example, an
activist judge would say that the Constitution needs to be
interpreted dynamically because a Constitution is not made
merely for the generation that existed back then but for the
future generations.
Examples of judicial activism:

• Badan Peguam Malaysia v Kerajaan Malaysia: The
Malaysian Bar questioned the appointment of a UM law
lecturer as a judge who only had 10 years of teaching law as
experience and alleged that it was unconstitutional as against
Article 123 of the Federal Constitution. Dr Badariah Sahamid
graduated with a first class degree in Law from UM and held a
Masters from LSE. She completed her pupillage and was
admitted to the Bar in 1977. However, she never applied for
nor obtained a practicing certificate that would enable her to
practice as an advocate or solicitor. Thus, the issue was
whether advocates of the courts in Article 123 require a person
to have been practicing for 10 years preceding the
appointment and whether Dr Badariah was qualified in law for
the appointment. The Federal Court expanded the term
profession as to include the teaching profession and held that
her appointment was valid. The phrase practicing law was
construed actively and in a broad sense as the Federal
Constitution should be construed with less rigidity and more
generosity than other statutes. The court also put into
consideration other factors affecting the validity on her
appointment:
- Removing her and ruling her appointment as unconstitutional
would seem her appointment as a mistake, where they had
initially identified her as a potential candidate
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- The fact that she had resigned from UM to accept the

appointment would leave a bad impression on the judiciary
- Prior to her appointment, other academicians such as Dr Visu
Sinnadurai had been appointed without a challenge
- The court departed from the decision in All Malayan Estate
Staff Union v Rajasegaran & Ors: The period of time
stipulated in the statute (Industrial Relations Act) refers to the
period in which the person concerned must have been in
practice
• Teoh Eng Huat v Kadhi Pasir Mas: Where a minor had
converted to Islam without the consent of her parents, the
issue was whether the conversion was valid as under the
Guadianship of Infacts Act, minor are under the prerogative of
their parents. In deciding the case, Tun Salleh Abas sat on the
case; he prolonged the case until the child had attained the age
of majority, at which point the court allowed her to decide for
herself where she still wanted to convert into Islam. The
decision was not merely about a girl s conversion into Islam
but was an all-encompassing decision as it took into
consideration the rights of all children to choose their religion
• Brown v Board of Education: The United States Supreme
Court declared state laws establishing separate public schools
for black and white students to be unconstitutional. The
decision overturned the Plessy v Ferguson decision of 1896,
which allowed state-sponsored segregation as long as it
applied to public education
• Donoghue v Stevenson: Where a decomposed snail was found
in the opaque bottle from which the plaintiff drank and fell ill,
the HOL ruled that a manufacturer owes a duty of care to
consumers as it was reasonably foreseeable that failure to
ensure the product s safety would cause harm to consumers.
The fact that the danger has been introduced by an act of
negligence and does not advertise itself, should not release the
negligent manufacturer from a duty. The decision overruled
Mullen v AG Bar & Co Ltd which despite the similar
circumstances (a dead mice was in their bottles of ginger beer
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and the victims claimed to have become ill through drinking

the tainted liquid), the court rejected the claim for
compensation as there was no contractual relationship
between the manufacturers and the consumers
Dworkin’s Hercules:
1. A superhuman judge who is generously endowed with
superhuman skill, learning, patience and acumen
(intelligence)
2. Hercules is expected to be able to construct a scheme of
abstract and concrete principles providing a coherent
jurisdiction for all common law precedents, statutory
provisions and the constitution
3. His task is to construct the soundest theory of law and should
be able to justify his political and legal theory with a set of
principles
4. A sound theory must be fit and justify the settled law, fit with
past political decisions and be justifiable or morally sound
5. Hercules judgment about what the law is depends on what he
finds to be the best explanatory and justificatory theory of
settled law
6. Dworkin illustrate Hercules judgment through the analogy of a
chain novel:
• Each novelist writes his own chapter in the light of what has
passed in the earlier chapters and attempts to make it as best
as it can be
• A good novelist should try to make the chain novel look as
though it is the work of a single author
• Despite differing opinions, his interpretation must flow
through the text and capture most of the text of the novel
• If he cannot find an interpretation which fits and is justifiable,
he must abandon it
• He may have to accept interpretations he might have rejected
in the beginning and reconsider the views he might sought to
adopt in his theory
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7. In the determination of Hercules concept of justice, two things

must be considered:
• Legal history must be given priority
• Actual political history of the judge s community
8. However, Dworkin does not allow Hercules to adopt
individual or person notions of justice to override the
political history of the community. Thus, his personal views
of justice must give way to the requirement of political history
of the community
• Wong Chiou Yong v Pendaftar Besar: It is the prevalent belief
and culture in Malaysia that changing a sex of one person from
male to female or vice versa is not acceptable. Therefore,
Article 5 of the Federal Constitution should only be interpreted
in that light
• Hence a judge s person views of what may be just in such a
case should not be adopted where political history of the
Malaysian community has provided a stance
Judicial discretion:
• Hart asserts that in a hard case, judges have a wider
discretion. Thus, judges do not simply find and apply the
law, they do, in fact, make it. The open texture of the law
leaves a large area for judges to display creativity through
the use of principles, provided that they act with
impartiality and neutrality while keeping in view the
interests of all affected parties. This is necessary where
there are no existing rules to cover the situation
• Dworkin, in objecting Hart s argument that judges make
laws, present two major arguments:
• Judges are not elected and only representatives of the people
make laws
• If judges make new laws and apply it retroactively, the losing
party would be unjustly punished for a duty created after the
event has passed
• Dworkin argues that judicial discretion exists only in 2
instances:
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• A person has discretion if his duty is defined by standards that

reasonable men can interpret
• A person has discretion when he has to give a final decision
that is not reviewable by any other higher authority
• Dworkin provides that due to the legal system being
founded on principles, judges do not really have a strong
discretion. If existing rules fail to give a clear answer, judges
do not have discretion unlimited by any legal standards. A
judge s discretion is limited to doing what is compatible
with legal principles, legal values and relevant legal
standards. Judges are subjected to a strong requirement of
articulate consistency
• Thus, although Dworkin promotes the application of non-
rule standards, he highlights the limitations that judges
must observe in exercising their judicial discretion.
Amongst these limitations, is the existence of doctrine of
stare decisis, which forms a cornerstone of our system of
jurisprudence (Co-operative Central Bank v Feyen
Development Sdn Bhd).
• Viro v R: The doctrine enables members of the public to
organize their affairs in accordance with the law and for
legal advisors to advise their clients with a fair level of
accuracy about the state of law in order to avoid wasteful
and unnecessary litigation
• Like law, a precedent, to Dworkin has moral force (moral
value) and is relevant if it is based on fairness or a similar
virtue, such as treating people like equals
• This is reflected in Dworkin s belief that law is a matter of
interpretation. He provides for the idea of constructive
interpretation, which promotes a creative interpretation of
the law, and is a matter of imposing purpose on an object or
practice in order to make it the best that it can be
• He states that to interpret a law is: to enquire into its
purpose or point and to place the law in its morally best
light
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• Judges must interpret the law in a time-frame that is

continuous by going through the three stages of
interpretation (past, present, future):
• Pre-interpretive stage
• Interpretive stage
• Post-interpretive stage
• As a result of the interpretation, a consensus would have
emerged as to the social practice that people want to
conform to; the interpretation that best fits with the
realities within the society
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Hart Dworkin Debate

• They are indirect disagreement
• In response to Dworkin s theory hart developed his own
contrastic theory about how judges should decide cases. Hart
offered a contrast and one of his theories is that when you
want to tell a judge how to decide a case, you must look at the
outside of legal system
• The exchange between hart and dworkin is how much we can
rely on images and metaphors in evaluating or creating
arguments.
• Dworkin implies that there is no room for a substantive
detailed and interesting descriptive theory of law.
• Hart insisted for the need to have a descriptive theory of law
and that legal propositions and legal systems do not follow
interpretive or evaluative theories.
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Judicial activism
*** Check tun Zaki Azmi the star report
4 WAYS HOW JUDGES ARRIVE AT A PARTICULAR DECISION

✓ DEDUCTION OR INFERENCE
✓ INDUCTION
✓ ANALOGY
✓ PARADUCTION (case by case procedure)
• Many times that a judge says that he decides based on his

logic. They will hide the real reasons behind rules.
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Tutorial
Q1:Explain what is social engineering
The 8 programme of action
Add case
Q2: Jural postulates

Different type of interests
The interests are to be balanced
Q3. Criticisms
Use cases as examples, the case is to SHOW the criticisms
Mention criticisms first then only add cases
Q4: Main themes of American Realisms

Mention all 3
Mention Llwellyn, Frank and Holmes
All of American realism issues
Judges should go behind legal reasoning, be more transparent.
Mention fact skeptic and rule skeptic
Q5: Jerome frank

Fact skeptic and rule skeptic
Tutorial questions
1. State the relevance of the questions of interest in sociological
jurisprudence
Interests is defined as a demand or desires which human beings,
individually or in groups seek to satisfy and which must be taken into
account in social relation
-Identify concerns
-Address concerns
-Try to find solution. Make all interest to be possibly resolved
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Because we can classify which are to be prioritized which is a valid

claim and which is not a valid claim
-Identify what is the limit
. Outline the objectives of Pound’s theory of social engineering

1. To build efficiently a structure of society as possible which
requires the satisfaction of the maximum of wants with the
minimum of friction and waste
2. To have laws that solve problem
3. To balance competing interests
. Is Pound’s theory of social engineering useful to Malaysian

legal system. Discuss
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Tutorial
1. Distinguish the differences of approach between the fact
skeptics and rule skeptics. In view of the recent emphasis on
judicial behaviorism, where predictability of judicial decisions
is stressed, do the differences matter any more?
Rule skeptics (you doubt rules are important)
1. Rule skeptics (represented by Holmes, John Gray, Llewellyn)
regard legal uncertainty as residing principally in the paper
rules of law (law in books) and seek to discover uniformities in
actual judicial behavior
2. They are skeptical of formal rules as the major deciding factor
in legal cases or the ability of general rules to provide the
solution to particular cases
3. Law in books were considered unreliable in guiding the
prediction of decisions, and that if the real rules were to be
discovered, only then can certainty and predictability be
achieved
4. Its aim was to show that simple reliance on rules was a fallacy
and that judges either consciously or unconsciously continue to
adhere to rule formalism
5. Judges are seen as unprepared to make clear the real reasons
for their decisions because it would be seen as a betrayal of the
ideal of the rule of law; the idea that the law is neutral and
objective, and not dependent upon any personal factors
6. Judges should not feel the need to hide behind precedents
(doctrine of stare decisis), but should instead make policy-
based decisions that are best for the society
7. They are committed to the idea that the aim of judicial
decision-making was to increase legal certainty or
predictability
• They considered it desirable that lawyers should be able to
predict that outcome of their clients case that have yet to
commence
8. rule skeptics believe that judges should make laws
9.
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Fact skeptics (you doubt that facts are important)

1. Fact skeptics (led by Frank) abandoned all attempts to see
rule-certainty and pointed to the uncertainty of establishing
the facts in trial courts
2. He urged that too much attention was devoted to the processes
in the appellate courts and had thus neglected the lower courts
3. Knowledge of what goes on in the lower courts is needed in
order to know what law means to persons in the lower
income brackets
• Rule skeptics seek means for making accurate guesses, not
about decisions of trial courts, but only decisions of appellate
courts when trial court decisions are appealed
• Rule skeptics disregard the question of whether the facts
arrived at in the lower court were real facts as appeal courts
generally do not debate the facts of a case
4. Regardless of how precise formal legal rules are, it will always
be impossible to predict future decisions or in what way the
trial court will decide in most lawsuits because of the
elusiveness or ambiguity of facts on which decisions turn
5. There are two main groups of elusive factors:
-The trial judges in a non-jury trial or the jury in a jury trial
must learn about the facts from witnesses, who may make
mistakes in observation of what they saw or heard, in recalling
of what they observed or in their courtroom reports of such
recollections
-The trial judges or juries may have prejudices (often unknown
to themselves) for or against some witnesses, parties to the
suit, or their lawyers
-Elusive elements such as racial, religious, political, or
economic prejudices of the judge and the jury may be uniform,
but it is impossible to include all their hidden unconscious
biases as such biases cannot be predicted
6. Uncertainty can also be found in the process by which a material
fact is determined
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-In a trial court, the law and the facts become intertwined and
are not distinguished from one another
-Juries, in reaching a verdict, may act on their emotional
responses to the lawyers and witnesses that they likened or
disliked and not on any legal rule
-These mistakes are then adopted and relied upon the
appellate courts
6. Rules are mere word formulae, and if they are to have any
meaning at all such meaning must be sought in the facts of real
to which the rules correspond
7. Frank denied that there is certainty in the judicial process and
if the facts skeptics were to be allowed, the elusiveness of facts
would make predictions wholly impossible
2. What are the main point enunciated by Karl Llewellyn that was
rationalize das the causes for American Realism?
3. The process by which judges arrive at their decisions on
questions of law is a topic of endless fascination and analysis
(fraderic reynold). Discuss with particular reference to the
writings of American realists.
4. Explain what is the Brandeis Brief Method. Discuss its
relevance to the Malaysian legal system
Judicial behavouralism
1. Behaviouralist is an attempt to improve the predictability of
judicial decision making
2. Behavouralist attempt to identify and isolate the extra legal
factors that influence a court s decision by applying method
used in other social sciences
3. For example they undertake the analysis of psychology of small
group of appellate judge. However behaviouralist use a variety
of empirical method to ascertain attitude of judges by looking
at their background, their public statement outside court room,
their judicial opinion and by asking them in interviews or
questionnaires
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4. They believe judges are nothing more than policy makers and
precedent or legal rules have little relation to the discovery of
the true uniformity in judicial decision making
5. Behaviouralist undertake comprehensive analysis of individual
attitude toward public policy, each other and all participants in
decision making process. Once attitude of judges are
established along these lines it is possible to develop predictive
model because judges are expected to behave consistently with
their beliefs and decision of the court is a linear function of the
decision of individual member. The only difference is because
of life journey
It does not matter to have both skeptics because both look at extra legal factors that influence the
judge in making decisions.
Both are very court centered approach
2. What are the main point enunciated by Karl Llewellyn that was
rationalize as the causes for American Realism
3. The process by which judges arrive at their decisions on

questions of law is a topic of endless fascination and analysis
(Frederic reynold). Discuss with particular reference to the
writings of American realists.
Jurists of American Realism
1) Oliver Wendell Holmes
2)
Criticisms of American Realism
4. Explain what is the Brandeis Brief Method. Discuss its relevance to

the Malaysian legal system
What is the brandeis brief method?
Muller v Oregan
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Jurisprudence - Lecture notes 1-14

Jurisprudence II (Universiti Teknologi MARA)

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Topics Page number

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Roscoe Pound (1870-1964) (EXAM: Article 153 FC/ Roscoe

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▪ By identifying and protecting certain interests, the law ensures

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o Interests of the state as a juristic person: Includes the

▪ A conflict of interests will demand a process of balancing one

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o The interest involved should be balanced onto the same

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o Whether a state exceeded its police power by regulating

• Noorfadilla Saikin v Shayed Basirun: The plaintiff applied

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rights by the defendants as agents of the Executive. Thus, in

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• Due care not to injure

• Pound s theory guides the courts in dealing with cases

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Arts 5-13 of the Constitution are not treated by the courts as

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• The limitations of the judiciary prevents social

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which specifies the nature of social science and its

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American Realism (EVERYTHING)

• It exists as a result or in response of formalism formulated

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• The realists were more concerned with enlarging

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contend that judges who are ideologically inclined to

Oliver Wendell Holmes (1841-1935; US Supreme Court Justice,

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biases and constructed from hunches, when in fact,

Karl Llewellyn (1893-1962)

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• Legal rules as found in books (paper rules) and emphasized

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providing a means of resolving disputes,

Jerome Frank (1889-1957; a US Federal Judge)

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• They are skeptical of formal rules as the major deciding factor

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only decisions of appellate courts when trial court

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• Frank denied that there is certainty in the judicial process and

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Contribution of American Realist School to Jurisprudence

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o This is the use of computer programme to extract

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Brandeis’ brief method

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Scandinavian Realism (EVERYTHING) You might get one or

Where the American realists had a background in the judiciary or

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• Notions such as rights and duties can only be found in