"The life of the law has not

been logic; it has been

experience."
Oliver Wendell Holmes, Jr.
Associate Justice
US Supreme Court
LEGAL REALISM
BY:
JOHN PAUL SILAB
GRACE SEALMOY
SNO-ANN DIGON
Legal realism is a family of theories about
the nature of law developed in the first half
of the 20th century in the United States
(American Legal Realism) and Scandinavia
(Scandinavian Legal Realism).
The essential tenet of legal realism is that all
law is made by human beings and, thus, is
subject to human foibles, frailties and
imperfections. This simply means that there
is no law unless it is promulgated by the
State. Law is written down and explicit.
 Laws Made By Men Are:

 Idiosyncratic or faulty
 Imperfect
 Changes based on collective belief
 Legal Realism postulates that:
 The law is what the courts say it is. Unless a
case arises out of the interpretation and
enforcement of a written law, there is no law
because there is no judicial interpretation. A law
is merely a law on paper unless a case arises to
interpret it.

 Law is pragmatic, empirical and scientific. It is

also relative, flexible and dynamic.
 Legal Realism postulates that:
 The source of law is the social experience of the
people. The school of modern legal realism
criticizes the natural law school or the
philosophical school because it believes that law
has no metaphysical source. The end of law is
"social contentment". It is an instrument of
social control.

 It focuses its study on "the law that is", not on

"the law that ought to be."
The earliest codified Roman laws were the Jus
Civilis, which was applicable to Roman citizens,
and the Jus Gentium, which was applicable to the
legal relations of Roman citizens with aliens
("perigrino") -- both of which were administered by
a "praetor" or a judge.

Emperor Justinian's greatest contribution to the

growth of the legal system of the world was his
codification of all Roman laws. The Romans made
law systematic, as in the areas of family, persons,
contracts, slavery, etc.
During the Reformation Period, the world saw the
rise of Protestant philosophers. Today, the world
saw the rise of the sociological school, the
functional school, and the school of modern legal
realism.
 Modern Legal Realism
 The law is objective, authoritative, commanding,
and empirical.
 The expression of the will of the state.
 Natural law and moral law do not matter.
 Law is not a moral concept. Therefore moral
connotations and value judgments from law, i.e.
of all non-legal elements, should be removed.
 It is free from metaphysical speculation.
 It is not made by God but by a superior
sovereign.
 Modern Legal Realism
 Law is the conscious will and command of the
sovereign imposed on the subjects, who are
liable to suffer penalties in case of violation
thereof (authoritative enforcement system).
 Law is a positive norm of conduct, hence, it is
uniform for all.
 Definitive Points of Legal Realism
 It focuses on the question: "Will this law work?"
Law is one of experience. It is also called the
"theory of sociological jurisprudence", "sociology
of law," or "social science school of law."
 It focuses on the "operation and effects" of law
in relation to the interests of society. The
"interests of society", not the folk-soul or the
pressures from the powerful elite, is the source
of law
 It maintains that law is an evolutionary process.
 Definitive Points of Legal Realism
 Law is a tool for the "balancing of interests" in
society. It is a tool of "social control" or "social
engineering." In a sense, it adheres to the
tenets of "pragmatic ethics" or "ethical
relativism" as it aims to serve the interests of
society with the least friction.
 It maintains that factors defining the law are
expediency and the convenience of society.
 Its main guidepost is "the greatest good for the
greatest number. "
Legal Realism vs Natural Law
 Natural Law Postulates that:
 Human dignity (man as end in himself),
supremacy of reason and free will (as God-given
and inherent in man), equality, freedom, and
mutuality of rights, and universal law of
morality.
 It is reason that makes law and obeys law. Man
knows what is natural right or natural law
because he is rational and the precepts of
natural law are inherently written in his heart
and mind (conscience).
 Natural Law Postulates that:
 "Practical reason" (the "good will" in man; the
"empirical imperative") that makes law and
compels the conscience of man to obey the law.
Duty (to obey and revere the law and to do
good to fellow men) is the highest virtue. Doing
an act not out of "duty" (good will) is immoral,
though it may be legal. His ideal society is one
where all men possess the virtue of duty to do
good.
 Natural Law Postulates that:
 Man is a moral individual. He is not a chattel.
Moral rightness is a matter of "motives" and legal
rightness refers to "external acts."

 Every action is right which in itself, or in the

maxim on which it proceeds, is such that it can
co-exist with the freedom of the will of each and
all, according to a universal law.

 Human rights are not contracted but are inherent

in man (dignity, freedom, equality).
Moral norms and natural law postulates do not
decide court cases or determine social behavior.

As stated earlier, the law is what the courts say it

is and how the courts interpret and apply it
(jurisprudence). That is the true source of law and
the nature of law.
Fact-finding is the most difficult and the most
crucial task of courts. The judge, who determines
and applies the law, is a real person, an imperfect
human being, with biases and prejudices, and
affected by all kinds of "metalegal stimuli". He is
subject to all kinds of real socio-psychological
pressures.
In modern legal realism, congressional acts are
not law but are a source of law. It is the
adjudicative process of the judiciary which defines,
interprets, and applies the law. In this school of
thought, the emphasis is on the judicial process.
Justice is equated with equality. The official
promulgation of a law is not necessarily equal to
the justness of its contents.
Out of this school rose the "critical legal studies
movement" in the United States, which, influenced
by modern radical social theories, looked at law as
being imposed by the ruling class or elite in society
who controls the tools of production. The
movement advanced the vision of positive equality
(free open society), with law as an expression of
the folk-soul of the people.