Tutorial Questions

1. What is legal formalism

When deciding law, varying views of judicial decision making, and reasoning are presented by
legal theorists. These theories regard the legal interpretation and application by which judges
perform under. In a normative respect, formalism is a form of legal adjudication whereby judges
should always apply a statutory rule where its literal meaning is clear. It further prescribes that
judges should always apply clear rules even if that leads to blatantly unreasonable results.

Legal Formalism promoted the idea that law is and should be an entirely self-determining
system, where judges are never faced with choices or alternative interpretations of a kind that
would be resolvable only through extra-legal considerations, such as moral or political values. In
other words, it comes very close to suggesting ‘mechanical’ application of law.

Kelsen states that the application of law is a moment of juris-diction (the stating of the law)

F.A.Hayeko- Formalism is a realisation of the Rule of Law ideal in which 'government in allits
actions is bound by rules fixed and announced beforehand - rules that make it possible to
foresee with fair certainty how the authority will use its coercive powers in given circumstances
and to plan one's individual affairs on the basis of that knowledge’.

Formalism taken to embody legal rationality operating in the sphere of legal adjudication. Law
understood as a system of known general rules - presumed to be clear and, ideally, capable of
a purely literal interpretation - that are simply deductively applied to specific cases by judges to
yield an outcome. Correspondingly, the facts of cases must fall into readily identifiable typical
situations admitting of simple and uncontroversial application of legal rules.

2. Distinguish between formalism and legal realism

Legal realism was, of course, a reaction against formalism, a mode of legal reasoning that
assimilates legal reasoning to syllogistic reasoning. The formalist pattern of deductive reasoning
takes the following syllogistic form:
1. Legal rule (major premise).

2. Relevant facts (minor premise).

3. Judgment.

Realists consider that formalism understates the power of the judge to make law by
representing legal judgments as entailed syllogistically by the pertinent rules and facts.10 If
legal decisions are indeed logically implied by propositions that bind judges, it follows that
judges lack the legal authority to reach conflicting outcomes.

INTRODUCTION:(i) Two Realists, Karl N. Llewellyn and Jerome Frank, set out NINE POINTS
that they deemed to be the characteristic features of the Realist Movement and which set the
Realists apart from other schools of jurisprudence, especially the Formalists.

(ii) In the course of time these points collectively became known as the MANIFESTO OF
REALISM and Lllewellyn and Frank labelled them the “Common Points of Departure”.

THE NINE “COMMON POINTS OF DEPARTURE” (MANIFESTO OF REALISM):

(i) The conception of law in flux and of the need for judicial creativity.

(ii) The conception of law as a means to an end and not an end in itself.

(iii) The conception of society in flux and the need to adapt the law to new social changes.

(iv) The temporary separation of law and morals for the purposes of study.

(v) Distrust of legal rules as description of what the courts are actually doing.

(vi) Distrust of rules as operating as the weightiest factor in producing court decisions.

(vii) The grouping of cases into narrower categories than had been the practice in the past.

(viii) The evaluation of law in terms of its effects.

(ix) The maintenance of a programmatic attack on legal problems in the above ways.

3. Explain nature and core claims of legal realism

Their ‘core claim’, according to Leiter, is that judges respond primarily to the stimulus of facts. In
other words, decisions are reached on the basis of a judicial consideration of what seems fair on
the facts of the case, rather than on the basis of the applicable legal rule. To understand this
claim, Leiter identifi es the following three elements:

● In deciding cases, judges react to the underlying facts of the case—whether or not they are
legally significant, ie, whether or not the facts are relevant by virtue of the applicable rules.

● The legal rules and reasons generally have little or no effect, especially in appellate decisions.
● Many of the realists advanced the ‘core claim’ in the hope of reformulating rules to render
them more fact-specific.

The first claim proposes that judicial decisions in indeterminate cases are influenced by the
judge’s political and moral convictions—not by legal considerations. The second could be said
to suggest that the law is indeterminate. It suggests that in most appellate decisions, the
available legal materials are insufficient logically to produce a unique legal outcome. Legal
realism was, of course, a reaction against formalism, a mode of legal reasoning that assimilates
legal reasoning to syllogistic reasoning. The formalist pattern of deductive reasoning takes the
following syllogistic form:

1. Legal rule (major premise).

2. Relevant facts (minor premise).

3. Judgment

4. Discuss Holmes and Llwellyn concept of legal realism

Holmes: Like legal positivists, Holmes warn to distinguish law from morality. 14. Holmes
believed that legal development could be scientifically justified:

The true science of law does not consist mainly in a theological working out of a dogma or a
logical development as in mathematics, or only in study of it as an anthropological document
from the outside; an even more important part consists in the establishment of its postulates
from within upon accurately measured social desires instead of tradition. (Holmes, “Law in
Science and Science in Law”, 1899)

Holmes used the device of a ‘bad man’ to challenge legal positivism and to emphasise the
definition of law as a prediction of courts’ decisions:
Take the fundamental question, What constitutes the law? You will find some text writers telling
you that it is something different from what is decided by the courts of Massachusetts or
England, that it is a system of reason, that it is a deduction from principles of ethics or admitted
axioms or what not, which may or may not coincide with the decisions. But if we take the view of
our friend the bad man we shall find that he does not care two straws for the axioms or
deductions, but that he does want to know what the Massachusetts or English courts are likely
to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law. (Holmes, “The Path of the Law”, 1897)

Holmes also believed that the use of social science methodology in law:

For the rational study of the law the black-letter man may be the man of the present, but the
man of the future is the man of statistics and the master of economics. (Holmes, “The Path of
the Law”, 1897)

Llwellyn:
5. Explain the device of ‘bad man’

Holmes 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.’
6. Discuss law as prediction

7. Distinguish between Scandinavian and American legal realism

It is at once apparent that though they are both ‘realists’ in a general sense, there are important
differences (which will be returned to) between the American and the Scandinavian realists.
Indeed, some go so far as to suggest that any similarity is a purely verbal one. Broadly
speaking, three related distinctions may be identified. First, while the Americans are, in general,
pragmatist and behaviourist, emphasizing ‘law in action’ (as opposed to legal conceptualism),
the Scandinavians launch a philosophical assault on the metaphysical foundations of law; where
the Americans are ‘rule-sceptics’, they are ‘metaphysics-sceptics’. This is sometimes explained
by locating American Realism within the tradition of English empiricist philosophy, while the
Scandinavians are more closely associated with the European tradition of philosophy. The
deeper hostility of the Scandinavians to any conceptual thinking about law, especially natural
law, may not be unconnected to the absence of any significant Catholic influence in
Scandinavia. Secondly, the Americans are far more concerned with courts and their operation,
while the scope of the Scandinavians’ jurisprudence is far broader, embracing the legal system
as a whole. The Americans, thirdly, were more empirically minded than the Scandinavians, who,
in Lloyd’s words ‘appear to rely mainly on argument of an a priori kind to justify particular legal
solutions or developments’.

8. Discuss Alf Ross and Olivecrona’s concept of legal realism

Scandinavian Realists like Alf Ross and Karl Olivecrona thought that law should be analyzed
through the prism of social empirical sciences (empirical method of studying/researching human
behaviour).

Alf Ross holds that law has a normative character. “A norm is a directive which stands in a
relation of correspondence to social facts.” The main feature of legal norms is that these are
directives addressed to courts. Validity can be established in terms of social facts, for example
that a rule is effectively followed, and those who follow it take the rule to be binding on them. He
argued on the theoretical operation of system as a whole by observing on matters of words and
validity of the law among people. Ross is inspired by the social technological and utility oriented
legal positivism in the philosophy of Bentham, but he is also critical towards the idea of utility as
a part of subjective legal policy. According to Ross, valid law is an expression of factual law in
society and not as a sanction of a legal system of norms as found by Hans Kelsen. So, he was
of the view that some prediction should be made by the official that is the judge so that his
decision will be followed in the future and not be attended by the above court. An illustration for
the prediction is where the judge will order compensation (law in practice) because of particular
normative idea, such as a breach of contract which is followed by damages. Ross’s working
hypothesis for the explication of the concept of valid of law is that in principle, it should be
possible “to define and explain” this concept in the same fashion as the concept of “valid norm
of chess”.

Karl Olivecrona is a prominent representative of the realistic legal theory. His reasoning is
based on hard facts and the reality that can be perceived, discarding mysticism and religion.
The law does not consist of divine commands, nor is it built on commands stemming from an
actual person posing as the legislator. In Olivecrona's view, legal language serves as a means
of social control, and while legal terms may in reality be hollow words, they also serve as
signposts with strong associations to legal concepts. He discarded the idea of the bindingness
of law, and consequently argued that the legal system consists of organized force. A legal
system unsupported by the use of organized force will become hollow and disrespected. Legal
rules that are not enforced will eventually succumb as the interdependency between legal
sanctions and law observance cannot be disregarded.

Karl Olivecrona also argued that law is essentially a huge machinery set up for the purpose of
protecting the security of society. Law is chiefly consisting of rules about force and organized
power. People are bound to follow the order as on the basis of the organized force which
creates a sanction to the people to follow the law. There is an idea of independent imperatives.
It involves the idea of action and an imperative mode of expression and the feeling from the
psychological association connected with the mode of expression with certain agencies. It
emerges from the pattern of conduct in imperatives form which are distinguished from other
imperatives by virtue of the nature of feeling of being bound that is associated with them.

9. What is the relationship between realism and psychology?

It is sometimes suggested that the realists developed a ‘psychological school of jurisprudence’.

While some of the American realists were strongly influenced by developments in psychology
and psychiatry (Jerome Frank drew on Freud and Piaget, and Moore and Oliphant both adopted
the methods of behavioural psychology), it is the Scandinavians (and especially Olivecrona)
who (as we saw) might be considered to have initiated a psychological approach to legal theory.
As he said, ‘the “binding force” of the law is a reality merely as an idea in human minds’. The
purpose of lawgivers is to infl uence the actions of individuals in society, ‘but this can only be
done through influencing their minds. How the influence works on the individual mind is a
question for psychology.’61 Certainly Olivecrona stressed psychological conditioning and its
effect on the relationship between law and morality. Though Ross, in On Law and Justice,
rejected Olivecrona’s ‘psychological realism’, he does, in his later work, Directives and Norms,
adopt a form of this approach himself. Whereas, in the first work, he argued that a legal norm
was principally directed to courts rather than to citizens, in his later account of ‘valid law’ he
distinguishes between a ‘logical’ and a ‘psychological’ point of view: legal rules are indeed
directed to officials (and hence the rule ‘exists’ only in the sense that—logically—it depends on
the existence of a rule directed to the officials). In other words, the primary rule that certain
behaviour is prohibited requires a secondary rule specifying what sanction the judge is to apply
when faced by such a violation. Logically, therefore, there is only one set of rules—the
secondary rules, because primary rules contain nothing that is not already implied in secondary
rules. However, he concedes that from a psychological point of view, there are two sets of
norms: rules addressed to citizens are ‘felt psychologically to be independent entities which are
grounds for the reactions of the authorities . . . primary rules must be recognised as actually
existing norms, in so far as they are followed with regularity and experienced as being
binding’.62 It is fair to conclude that, though realism, in general, could not be said to have
developed a ‘psychological school of jurisprudence’, the legal theories of the Scandinavian
realists, Olivecrona and Ross, are rooted in psychology.

10. Discuss some criticism on legal realism

First, Ross’s psychological hypothesis is presented a priori without any empirical proof. Ask a
friend who is studying psychology whether the rigours of that discipline would allow the theory to
stand—in the absence of proof. Secondly, even if the theory were valid, can descriptions of ‘the
law’ be reduced to statements about the psyches and senses of citizens? Thirdly, Olivecrona’s
account of the part played by coercion strikes many as somewhat naive: force is, of course, the
background of law (he gives the examples of execution, eviction, imprisonment), but does it
really operate in the way he describes? Fourthly, his analysis of the connection between law
and morality is, at best, suspect.

Part of problem of legal realism is that to study law in the way that the legal realists suggested,
i.e. as a “man of statistics and the master of economics”, one needs to have social science skills
not typically available to legal scholars (although a law degree is a second degree in the United
States). On the other hand, the use of statistical approach to studying law has been on the
increase in recent years, especially after the 1980s with the cheap availability of
microcomputers and sufficiently powerful statistical tools.
Source:

Understanding jurisprudence, Raymond Wacks. PP 145-160