REALISM

Introduction Its origins and growth Realism in the American legal system The rules of scepticism The facts of scepticism Conclusion

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Introduction: The American Realist movement grew during the 1930s from the philosophical views associated with James and Dewey. Both rejected closed systems, pretended absolutes and origins and turned towards facts, actions and powers. The realists studied law on the basis of rejection of myths and preconceived notions and on the acceptance of recording accurately things as they are, as contrasted with things as they ought to be. A true science of law demands a study of law in action. Law is as law does. According to the realists, law consists of a body of generalisations about the conduct of judges or officials. For example Cook treats rules as descriptions of past decisions. He states: This past behaviour of the judges can be described in terms of certain generalisations which we call rules and principles of law. To Holmes, he viewed law as a set of consequences. He said that: The life of law has been, not logic, but experience. He treats rules as prophecies of future decisions. He observes: The prophecies of what the courts will do in fact, and nothing more pretentious are what I mean by law.

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Introduction: (Continuation) Law is, according to the realists jurists, what officials (judges) do; it is not to be found in, and cannot be deduced from, the mere rules by which those officials are guided. An investigation of the unique elements of cases, an awareness of irrational and non-logical factors in judicial decision-making, an assessment of rules of law by an evaluation of their practical consequences- these are some of the characteristics of the realist approach. The main concern of the realist movement was the desire to discover how judicial decisions were reached in reality, which involved a playing down of the role of established rules, or the law in books, to discover other factors that contributed towards a judicial decision, in order to discover the law in action. Once the realists had deciphered the factors that lead to judicial decisions, both non-legal and legal, they were concerned with the prediction of future decisions to be made. In addition to the above, they were of the opinion that judicial decisionmaking would be more amenable to the needs of society if judges were more open about the non-legal factors which had influenced their decisions.

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Its origins and growth: In the 19th and the beginning of the 20th century, there was a blatant discrepancy between the form of the law and its theoretical logic and sociological reality; in the midtwentieth century, there has been a rise of the trade unions and the economic influence of the states; pragmatism has also greatly influenced realism. Pragmatism regards practical consequences as the criterion of value and truth. The realist movement is a combination of pragmatism and sociological approaches. In America, the doctrine of judicial review and the due process clause were the centre of the legal system in courts and were therefore, realisms concentration of attention on the judicial process.

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Its origins and growth: (Continuation) Furthermore, it should also be noted that in the last decades of the 19th century there prevailed both in the US and on the continent, a theory of law described as positivism. Law was thought of as more or less as a fixed body of rules and principles to be studied in terms of their semantic meaning or other historical context. Llewellyn described this period as that of formalistic style, as a period in which there prevailed a predilection to rely on traditional authorities and on the deductive method in decision making. He stressed that this trend of jurisprudence stood in strange contrast to the various developments, which were transforming everything in the individual and social spheres. Consequently, the trend of legal thinking took a sharp turn into a different direction.

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Its origins and growth: (Continuation) It is therefore important to note that this trend of legal thinking gave birth to legal realism. For example, in the US today, analytical and historical schools have been assailed and supplanted by a new idealism which considers law as an instrument for the attainment of social objectives. It is held that fixity and certainty of law must give way, wherever necessary, to overriding considerations of individual justice or social need. There is a swing of pendulum from the legal norms to the decision, from official opinion to the true reasons, from conceptual jurisprudence to facts of law and social interests. This new orientation in legal philosophy is styled as legal realism. All in all, the origins and growth of realism i.e. American realism came into the scene as a result of being pointed out that the traditional analysis of legal problems in terms of remedies, rights and interests, and conceiving law as a body of rules were a block to clear thinking about things legal, and generated ambiguity. Hence, this approach saw another suggestion being suggested that legal science should concern itself with law conceived as human behaviour instead of a mere body of rules and concepts.

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Realism in the American legal system: First and foremost, realism in the American legal system can best be understood by way of making reference to some American jurists. The following are some of the notable jurists: (a) Holmes (1841-1935) This founder of the American realist movement said that the life of law is experience, not logic. He treats rules as prophecies of future decisions. He observes: The prophecies of what the courts will do in fact, and nothing more pretentious are what I mean by the law. According to Holmes, if we wish to know the law, we should look at it through the eyes of a bad man who is only concerned with what will happen to him if he does certain things. Thus, Holmes views laws as a set of consequences. We can understand the law when we can predict with some certainty the outcome of the behaviour of the courts when presented with legal problems.

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(a) Realism in the American legal system: (Continuation) Holmes (1841-1935) Furthermore, to Holmes, analysis must exclude moral questions. He thus urged the deliberate exclusion from ones study of law of every word of moral significance. This was not a rejection of the significance of societys moral standards in the creation of law; these standards are to be regarded as of little consequence in any analysis of operational matters. The jurist ought to attempt to use only words which will convey legal concepts uncontaminated by extralegal ideas. Thus, to introduce into discussion of the law of contract a concept such as irrefragable undertakings, with its lofty overtones of moral significance, is to muddy the waters of scientific examination. It is also important to note that Holmes draws attention to the significance of a judges interpretation of the public policy underlying the law, the judges inarticulate major premise. He emphasises, as a counter-balance, the need to insist upon the process of law-making as the business, not of the court, but the legislative bodies within the community. The tendency towards judicial lawmaking has to be restrained; citizens have the right to make, through their elected representatives, whatever laws they consider to be necessary. Hence, judges must be reminded of their duty to weigh considerations of social advantage when enunciating or interpreting rules.

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(a) Realism in the American legal system: (Continuation) Holmes (1841-1935) In addition to the above point or issue, Holmes argued that the training of lawyers ought to lead them, and judges, habitually to consider more definitely and explicitly the advantages to society of the rules they lay down. Hence, the working of the legislature and the courts should not be seen in isolation from the societies from which they spring and from which alone they derive their significance. It should also be pointed out that Holmes view should not be interpreted as implying a rejection of legal theory. The pragmatism which he embraced is, in itself, a theoretical interpretation of perceived reality. He believed that we have too little theory in law, rather than too much. His insistence upon the continuous reexamination of rules and procedures and the rejection of that which is outworn is not an attack on theory as such. Theory, he wrote, is the most important part of the dogma of law. One cannot predict correctly save on the basis of valid principles and theory.

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(a) Realism in the American legal system: (Continuation) Holmes (1841-1935) All in all, any analysis of Holmes work must include at least three central elements. First, Holmes, as a Supreme Court Judge, was (not surprisingly) a profound believer in defining the law by reference to what the courts actually said it was. This is especially evident in his famous address The Path of the law which he delivered to law students in 1897. He warned them to distinguish clearly between law and morality: consider what the law is, not what it ought to be (shades of legal positivism). Secondly, in developing his view, he introduces the device of the bad man: If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict. Thirdly, Holmes firmly believed that legal developments could be scientifically justified: the true science of law, he argued, consists in the establishment of its postulates from within upon accurately measured social desires instead of tradition.

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Realism in the American legal system: (Continuation) (b) Frank (1889-1957) He followed the path charted by Holmes. He counted himself a constructive fact-sceptic (those who doubt that facts play any role in the decisions), who found legal certainty as arising from the elusiveness of facts, in contrast to the rule sceptics who found legal uncertainty to be a product of the laws formal rules. Based on his analysis of rule sceptics (those who doubt that rules decide cases e.g. Llewellyn is a representative of the rule sceptics) and fact sceptics (they doubt that facts play any role in the decisions), Frank says that facts are not objective. They are what the judge think they are. And what he thinks they are depends on what he hears and sees as the witnesses testifywhich may not be, and often is not the same as what another judge would hear and see.

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Realism in the American legal system: (Continuation) (b) Frank (1889-1957) According to Frank, law could not be separated from the decisions of the courts; hence it was necessary to understand the bases of judicial decisions, and this required an investigation of a variety of factors, often an irrational nature such as emotions, hunches (motives, background and character). Frank says that the way in which the judge gets his hunches is the key to the judicial process. Thus, Frank felt to disclose the reality of court-houses because without public knowledge of the realities of court-house doings, essential reform of those doings will not arrive soon. In addition to the above, Frank also address the relationship between the courts and facts. To him, the law is, in relation to a set of facts, a decision of the court relating to those facts. Hence, until the court has given its decision, no law concerning those specific facts is in existence. So, in his work Law & the Modern Mind (1930) he had this to say: No one knows the law about any case or with respect to any given situation, transaction or event, until there has been a specific decision (judgment, order or degree) with regard thereto. In other words, to Frank, law is actual specific past decisions, and guesses as to the actual specific future decisions. Thus, law may be categorised as actual law (past decisions) or probable law (guesses as to future decisions).

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Realism in the American legal system: (Continuation) (b) Frank (1889-1957) Furthermore, Frank reasoned that before the making of such a decision, the only relevant law available is a lawyers opinion- a mere guess as to what the court will decide. Hence, the law is essentially uncertain. Frank argued that if lack of certainty was fundamental to natural sciences, it was absurd to expect even approximate certainty or predictability in the law. Frank holds that it is a basic legal myth to think that law can be relatively permanent and fixed. Since law deals with human affairs, it is absurd to realise even approximate certainty and predictability in law. According to Frank, the search for certainty in law arises fundamentally from the search of a father figure and reflects the childish need for an authoritative parent. Frank urged jurists to reject the infantile search of a father figure and follow completely adult jurists, such as Holmes.

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Realism in the American legal system: (Continuation) (b) Frank (1889-1957) Rules, according to Frank, are no more law than statutes are law. Rules are mere words, and, in any event, the court will indicate what rules mean, whether contained within a statute or implied in the opinion of some other court. Rules are not to be found at the basis of a judges decisions: those decisions may be arrived at before he finds a reason for them. The reasons he gives later may be no more than a rationalisation of his intuitive feelings. Since knowledge of the rules alone is of limited value in predicting the outcome of a trial, it is necessary to turn for guidance to study other matters i.e. Prejudices or judicial hunch. Regardless of Franks scepticism as to the reliability of trial procedures in the process of discovering the essence of law, he was concerned with the question of attaining justice as the end of those procedures. He urged, therefore, the enlargement of the bounds of judicial discretion so that rules might be made more flexible in individual cases. Every legal hearing is, in a sense, unique, and a judge ought not to be tied to the demands of rigid universals and abstract generalisation. This is essential if justice is to be unblindfolded.

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Realism in the American legal system: (Continuation) (b) Frank (1889-1957) It should be noted that Frank was criticised based on what he has said about law or its operation. The following are some of the criticisms: i. Franks view of uncertain judicial hunch, leading to the unpredictable, personalised decision has been criticised. It is suggested that Frank unduly magnifying personal and accidental factors and seeking to deny the relevance of certain significant determinants in the legal process. Law is not a mere mass of unrelated decisions, nor is it a product of judicial bellyaches. Judges are trained in disciplined modes of thinking and conduct and they operate within a system in which precedent is potent and the importance of rules is obvious. Cohen has suggested that decisions cannot be interpreted validly as mere expressions of individual personality; they can be viewed as a function of social forces, that is, a product of social determinants and an index of social consequences.

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Realism in the American legal system: (Continuation) (b) Frank (1889-1957) It should be noted that Frank was criticised based on what he has said about law or its operation. The following are some of the criticisms: ii. His cult of single decision has been criticised. For Frank, the law consists of decisions: the single judgment in a given case is the law. Prior to that decision, the only law available rests, presumably, on the guesses of lawyers as to what, in the particular circumstances, the court might do. Franks formulation ignores the significance of agreed rules, conventions, judicial protocol, in the administration of a law which has its basis in an accepted repertoire of responses within defined limits. iii. General objections to Franks perception of the significance of uncertainty in law have been raised by jurists who doubt the accuracy of his methods of analysis. It seems that much of his evidence for the role of the hunch rests on anecdote. There is little empirical evidence to support his wider conclusions.

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Realism in the American legal system: (Continuation) (b) Frank (1889-1957) It should be noted that Frank was criticised based on what he has said about law or its operation. The following are some of the criticisms: iv. To criticise Frank is not to deny that judges hunches may affect their decisions; but judges do have common standards by which facts and their significance are evaluated. Further, there are areas of law within which judges may not exercise discretion. Precedent and statutes often provide clear rules which are intended to be followed. Hence, Franks stark view that, fundamentally, there is no certainty in the law, save in a trivial sense, is not easy to accept without considerable qualification. Communal life in our society is based on the necessity for regularity and certainty in relation to the operations of the legal system. v. The maintenance of complex social structures does demand from the law a general trend towards certainty: that is not to be denied. But this is a long way from Franks assertion concerning the role of legal uncertainty.

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Realism in the American legal system: (Continuation) (c) Gray (1839-1915) He defined jurisprudence as the science which deals with the principles on which courts ought to decide cases... it is the statement and systematic arrangement of the rules followed by the courts and of the principles involved in those rules. Thus, the law of the State or any organised body of men is composed of the rules which the courts, that is, the judicial organs of that body, lay down for the determination of legal rights and duties. Hence, this could be said as Grays views on the significance of rules in the legal system. According to Gray, his approach to judicial interpretation is that the judges settle what facts exist and also lay down rules according to which they deduce legal consequences from facts. These rules are the rules of law. Gray cites with approval the words of Bishop Hoadly, preaching in 1727 before George I: Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first wrote or spoke them.

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Realism in the American legal system: (Continuation) (c) Gray (1839-1915) Gray distinguishes between law and sources of law. He views the law as composed of the rules laid down by the states judicial organs for the determination of rights and duties. Everything else, including a statute, are only sources of law until used as a basis of decisions by the courts. Gray sums up his views on rules, thus: The State exists for the protection and forwarding of human interests, mainly through the medium of rights and duties. If every member of the State knew perfectly his own rights and duties, and the rights and duties of everybody else, the State would need no judicial organs; administrative organs would suffice. But there is no such universal knowledge. To determine, in actual life, what are States and citizens rights and duties, the State needs and establishes judicial organs, the judges. To determine rights and duties, the judges settle what facts exist, and also lay down rules according to which they decide legal consequences from facts. These rules are law.

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Realism in the American legal system: (Continuation) (c) Gray (1839-1915) It is important to note that regardless of what Gray said i.e. about the significance of rules in the legal process, his views did not escape from criticisms. For example, Gray was criticised by Cardozo, in The Nature of the Judicial Process (1921) on the grounds of uncertainties inherent in his view that statutes are merely sources of law which judges utilise in the exercise of a law-making function. In that view, says Cardozo, even past decisions are not law. The courts may override them.

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962) He is claimed to have introduced the term realistic jurisprudence into modern legal literature in his 1931 essay on A Realistic Jurisprudence- the Next Step. He stressed that there was no school of realists and the so-called realist movement was merely a ferment among some of those American jurists calling for a dynamic jurisprudence. Realism is, he said, a method, nothing more, and the only tenet involved is that the method is a good one. Hence, he claimed that his version of realism was not a philosophy but a technology and thats why it is eternal. According to Llewellyn, law is never static; it is to be considered as a means to a social end; continuous examination is essential; is and ought must be divorced for purposes of legal study; traditional concepts are rarely an adequate explanation of law in action, law has to be evaluated in terms of its social impact.

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962) Based on the above approach taken by Llewellyn, he thus argued that conflicts in society are not resolved by words and rules but by officials, whether they be judges or sheriffs or clerks or jailors or lawyers. He says, what these officials do about dispute is, to my mind, the law itself. What the judge is going to do in deciding a case before him is much more important than any rule he may cite to sustain his action. Hence, a basic premise of Llewellyns concept of law is its interpretation as a means to social ends. The law may be considered as an engine, having certain purposes, but no values in itself. The social ends of law are assisting the very survival of society and aiding the search for justice and a richer existence.

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962) In addition to the above, he emphasised that legal rules are not as important as legal theorists assume them to be. It is how a rule work that determines its significance; a rule of law thought of solely in terms of a verbal formula is mere emptiness. Rules are what they do. Thus, Llewellyn regarded statutes and precedents as mere paper rules. But the courts actually operate real rules which have to be discovered or brought to light. Furthermore, Llewellyn claimed that paper rules misdescribe the reasoning processes judges in fact adopt in reaching their decisions. Ratio decidendi provided mere paper qualifications. Thus, the real rules which Llewellyn proposed to find out were to lay bare foundations of judicial decisions. These real rules will be predictors of court results. Why do paper rules fail as predictors of future court action? Llewellyn explains that there are mainly two reasons why paper rules fail. Firstly, legal rules are framed in such a way that there is usually a certain amount of leeway for future application. Thus, a lawyer is at a loss to predict how the judge will decide a case. Secondly, judges may play down, if not disregard, the rules. Thus, accurate prediction cannot be done on the basis of paper rules.

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962) According to Llewellyn, the basic functions of the law- the execution of law jobs are related to social ends. If society is to survive, organisation of social matters must be effected and kept effective. Five fundamental law jobs have emerged, and they are considered by Llewellyn as universal and essential for most societies and groups. i) The disposition (i.e. adjustment) of trouble cases, perhaps the most important of the law jobs. He referred to this job as garage repair work. Work of this type- the resolution of disputes, the settling of grievancesacts as a test to decide which legal rules prevail in the real world. ii) The preventive channelling of conduct and expectations in areas of actual or potential conflict. This is intended to head off collisions and consequent disputes. iii) The allocation and exercise of authority or jurisdiction within society, which Llewellyn refers to as arranging the say, and its saying. It results in the settling of procedures which legitimise subsequent action (e.g. Systems of judicial decision)

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962) The basic functions of law (law jobs) are: iv) The provision of directive and incentive through the organisation of society as a whole, which involves the total effect of the three previously listed law jobs; in Llewellyns phrase, the Whither of the net Totality. v) The provision an appropriate juristic method, which involves law as technology, and embraces the maintenance and improvement of law structures and the traditions and skills of the official craftsmen of the law. Llewellyn explains that around the performance of various clusters of law jobs will grow distinct activities from which it will become possible to discern and analyse the stuff of law. When men begin to specialise in these activities it becomes possible to recognise the men of law. From the conjunction of men and activities in relation to law jobs there will emerge the craftsmen of the law and their crafts. The crafts of the law, which Llewellyn characterises as forming a minor institution, include advocacy, adjudication, law-making; these are essentially the specialities which, through education and example, are transmitted from one generation to another in the form of organised, methodical groups of skills.

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962) According to Llewellyn, one of the most important crafts of law is judicial reasoning. He provides a detailed study of two, polarised, aspects of judicial reasoning i.e. grand style and formal style. The grand style derives from the judges appeal to reason. It attempts to minimise uncertainty and seeks to reduce any perceived conflict between demands of justice and the commands of authorities; it produces, and improves on, rules which make sense on their face. For example, precedent is not followed without good reason, and attention is paid to principle in evaluating the weight to be given to past, relevant decision. On the other hand, the formal style, which can be discerned in the execution of the law job related to the settling of disputes, owes much to reliance on rules of law rather than to any perception of the demands of policy (which concern the legislature in particular). The formal style is often characterised by the deductive form of reasoning and expressions of what Llewellyn termed single line inevitability. This style seems to have dominated the American courts during the second half of the nineteenth century. But, he warned, the influence of the formal style has not lost its grip; it continues to offer a standard style for the writing of judicial opinions, although its ancient aspect of a deep, unquestioned and powerful faith is no longer as pervasive as it once was.

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962)

It should be noted that in the later stages of his researches, Llewellyn attempt to counteract a growing lack of confidence in the American system of appeal courts, as a result of what he perceived as the death of stare decisis and the general concern with unpredictability of decisions. He discovered in the workings of the appeal courts a reckoning quality: judges were not merely capricious in their use of precedent but were guided by a situation sense which was producing a kind of stability in the operation of those courts.

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Realism in the American legal system: (Continuation) (d) Llewellyn (1893-1962) Regardless of Llewellyn views, it is important to note that he was criticised as well. The criticisms are: (i) His lack of attitude to the significance of rules within the legal process has been rejected as based on an incorrect perception of the function of rules. A judge who ignores rules as a guide to action may be substituting mere arbitrariness for certainty. The reality is that rules are studied, are observed and are rarely neglected. Indeed, the judge is himself a product of rules, (ii) His emphasis on the dichotomy of words and actions in the formulation of judicial decisions has been condemned as bizarre and unrealistic. We are asked to distinguish the judges action from his real intentions and meanings, but how this is to be done is not clear. Fuller asked: just what do we mean by judges actions as distinguished from intention and meaning? Is it a movement of the arms or jaw? Is it a movement at all, and if not, what is it? Is it possible to describe a judges actions without referring in that description to his reasoning? (iii) The critics criticised his formulation of law and said that the definition lacks any informational content. What if officials act illegally? Would their actions form a part of the law?

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The facts of scepticism: As illustrated above Frank was the main fact sceptic. The fact sceptics doubt that facts play any role in decisions. The fact sceptics have their primary interest in trial courts. For example, Frank says that facts are not objective. They are what the judge thinks they are. His point was that if we take normal mode of judicial decision-making as the application of legal rules to the facts of a case then, even if the rules are clear, such as not parking on a double yellow line, or obeying the speed limit or driving on the left-hand side of the road, it is still not possible to predict with certainty which way the trial court will decide simply because of the elusiveness of the facts. In addition to the above, Frank points to two main groups of elusive factors which cannot be captured by any predictive theory based on observation of the behaviour of the courts. First, the trial judge in a non-jury trial or the jury in a jury trial must learn about the facts from the witnesses; and witnesses, being humanly fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in the court-room reports of those recollections. Secondly, the trial judges or juries, also human, may have prejudices often unconscious, unknown even to themselves for against some of the witnesses, or the parties to the suit, or the lawyers.

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The rules of scepticism: Rule sceptics- those who doubt that rules decides cases. Llewellyn is representative of the rule sceptics. Rule sceptics have interests in appellate courts. Rule sceptics with their predictive models assumed that there is an ascertainable set of facts, otherwise attempts at predicting the results of court cases by looking at the real rules would not have been possible. Frank denied that there is this certainty in the judicial process and that if his model is followed there is no way in which predictions can be made. In addition he denied that the rule sceptics could include within their real rules the second set of elusive elements he identified, which included the racial, religious, political or economic prejudices of the judge and jury. Furthermore, Frank argued that in a trial court the law and the facts become intertwined- there is not a simple application of the law to the facts, instead the law emerges in adversarial manner just as the facts do. When the jury comes to its verdict, they do not distinguish between law and fact, and in this state of confusion they decide the case on other grounds i.e. act on their emotional responses to the lawyers and witnesses; they like or dislike, etc.

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Conclusion: Realism is a valuable extension to the work of the sociologists. They uncovered personal factors. They furnished a penetrating insight into the judicial process. For example Llewellyns contribution to American realism was based on his insistence that rules had to be considered by examining the way in which they worked. His concept of law jobs remains significance. The uncovering of the functions which the law sets out to perform in pursuit of social ends draws attention to law as a means to an end- an essential feature of the general interpretation of law favoured by American Realists.