a reaction on the article

Legal Realism Untamed

Frederick Schauer
http://ssrn.com/abstract=2064837

Judicial Legislation plays one important aspect in understanding Legal Realism.

Though not rejecting the idea that statutes may constraint judges, realist would
believe that judges create new laws through the exercise of their lawmaking
discretion. Kenneth Himma would say that judicial decisions, as embodied in our
New Civil Code, is frequently guided by political and moral intuitions of the facts
rather than theories like positivism and naturalism acknowledge.

F. Schauer in his paper “Legal Realism Untamed” thought that many views on Legal
Realism contend that “formal legal materials ordinarily do not determine legal
outcomes without the influence of non-legal supplements.” He further thought that
legal outcomes are product not of law but of the ideology and policy preference of
the judges. The application of the concept of Legal Realism often is not applicable to
easy cases where straightforward application of the law is indivisible. Instead, the
concept is closer in application to hard cases wherein even Karl Llewellyn stated in
his writings that malleability of laws is applicable only to the “cases doubtful enough
to make litigation respectable”. It is in these instances where Schauer characterized
Realism as “tamed”. That is, to situate it with respect to the common belief that
Realism threatens the traditional picture of law. Realists would believe that there
were gaps in the law that needs to be filled by judges in their law-making capacity,
something that is not the course in the traditional picture of law.

Schauer, in his version of “Tamed Realism”, provided two logically distinct but
contingently conjoined beliefs. First is that there are easy cases, and the other is that
what makes these easy cases easy is the phenomenon of certain facts or events
straightforwardly falling within the ambit of the plain meaning of the language of the
law. These easy cases are understood in terms of “plain meaning of the words” of a
legal rule. As in our own setting, in our practice of legal hermeneutics, if the law is
clear, unambiguous, then apply it as it is and legal construction is not necessary to
effectuate it. This “Tamed Realism”version of Schauer is bases mainly on the context
of easy cases, in its litigation. It is also good to distinguish paper rules from real rules
– which in this paper of Schauer, one of the central tenets of many realists. While
indeed it is true that Legal judgement might possibly follow the paper rules, in the
mindset of a realist, there could be a shift from paper rules to real rules in rendering
judgement.

To conclude, under the tamed version of Legal Realism, there is an assumption that
when the formal written law is clear, it is predicted that the judges will follow it. If the
judges will sometimes not follow the paper rules even when they are clear, then the
prediction of a lawyer as to what the judges will do is important to the client and the
case. The recognition of the effect of a central Realist claim on the very cases
selected for litigation – on the determination of what makes easy cases easy and
what makes hard cases hard – is the untamed version of Legal Realism.

A judge, therefore, may either follow what the paper rules says or what his ideology
dictates. In our own setting, by the practice of Statutory Construction, we follow the
rule that when the law is clear and unambiguous, apply it to the case at it is without
furtherance of construction.

By: NICO V. MAGDAYAO

Date Retrieved: October 10, 2018