CONTRIBUTION OF THE LEGAL REALISM TO JURISPRUDENCE:

The main contribution of realists to jurisprudence lies in 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 realists hold that law is uncertain and indeterminable in nature
therefore, certainty of law is a myth. According to Friedman, 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 Stone, realist movement is a gloss on the sociological approach to
jurisprudence. He considers realism as a combination of the positivist and the sociological
approach. It is positivist in the sense that it undertakes the study of law as it is and sociological,
because it expects that law should function to meet the ends of society. Thus in his view, realist
school is merely a branch of sociological jurisprudence and a method of scientific and rational
approach to law.
Note : Realism denounces traditional legal rules and concepts and concentrates more on what the
courts actually do in reaching the final decision in the case. In strict sense, realists define law as
generalized prediction of what the courts will do.
Realists believe that certainty of law is a myth and its predictability depends upon the set of facts
which are before the court for decision. It presupposes that law is intimately connected with the
society and since the society changes faster than law so there can never be certainty about law.

CRITICISM OF LEGAL REALISM:

1.

The critics allege that the exponents of realist school 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. Therefore there cant be certainty and definiteness
about the law. This is indeed overestimating the role of judges in formulation of the laws.
Undoubtedly, judges do contribute to law-making to a certain extent but it cannot be forgotten
that their main function is to interpret the law.
2.

Another criticism so often advanced against realists is that they seem to have totally

neglected that part of law which never comes before the court. Therefore it is erroneous to think

that law evolves and develops only through court decisions. In fact a great part of the law
enacted by legislature never comes before the court.
3.

The supporters of realist theory undermine the authority of the precedent and argue that

case law is often made in haste, without regard to wider implications. The courts generally give
decisions on the spot and only rarely take time for consideration. They have to rely on the
evidence and arguments presented to them in court, and do not have access to wider evidence
such as statistical data, economic forecasts, public opinion, survey etc.
4.

Realist school has exaggerated the role of human factor in judicial decisions. It is not

correct to say that judicial pronouncements are the outcome of personality and behavior of the
judges. There are a variety of other factors as well which has to take into consideration while
reaching his decisions.
Effect on Philippine Jurisprudence
The recent trends in the public interest litigation widened the scope of judicial activism to a great
extent but the judges have to formulate their decisions within the limits of constitutional frame of
the law by using their interpretative skill. In other words the judges in Philippines cannot ignore
the existing legislative statutes and enactments. They have to confine their judicial activism
within the limits of the statutory law. They are free to overrule the previous decisions on the
ground of inconsistency, incompatibility, vagueness, change of conditions etc. Thus the
Philippine legal system, though endows the judges with extensive judicial discretion, does not
make them omnipotent in the matter of formulation of law. The legislative statutes and
enactments, precedents and the rules of equity, justice and good conscience are indispensable
part of the judicial system in Philippines. ( Stat con case )
Philippine jurisprudence does not formally subscribe to the realists legal philosophy, it does lay
great stress on the functional aspect of the law and relates law to the realities of social life.
Again, it refuses to accept the realists view that Judge-made law is the only real law and other
laws are worthless, but at the same time it does not completely ignore the role of Judges and the
lawyers in shaping the law. The Philippine judges do have the liberty of interpreting law in its
contextual and social setting keeping in view the social, economic, political, cultural, historical
and geographical variations of the Philippine society. The power of review and doctrine of

overruling its earlier decisions has enabled the Supreme Court to effectuate socio-economic
contents of the constitutional mandate through the process of judicial interpretation and use of its
inherent powers. Thus, the Supreme Court although initially declared the Philippine Mining Act
of 2015 unconstitutional was still able to reverse itself to rule in favor of its constitutionality.
Then again, although it declared it constitutional, a case was still entertained by the Supreme
Court assailing the constitutionality of the same law. The Court is bound to obey the
Constitution rather than any decision of the Court, if the decision is shown to have been
mistaken. The Court further observed that where a constitutional decision affects the lives and
property of the public and where the Court finds that its earlier decision is manifestly wrong and
injurious to the public interest, it should not hesitate to overrule the same.
LAW MADE INAPPLICABLE/ OBSOLETE BECAUSE OF THE CHANGING TIMES.
(Presumption that injustice is never intended by the legislature.)
Salvacion v Central Bank
To a certain extent, legal realism is being applied to the legal system in the Philippines. These are
some circumstances when the Supreme Court devised rules to apply on certain cases. (Judicial
Legislation)
There are cases when the courts do and must legislate to fill in the gaps in the law. The Court
decided to go beyond merely ruling on the facts of the existing law and jurisprudence. (Floresca
v. Philex Mining; Republic v. CA and Molina)
1. Floresca v. Philex Mining, G.R. No. L-30642 April 30, 1985
Does the CFI (RTC) have jurisdiction over the complaint?
Pursuant to Article 9 of the Civil Code which provides that: No judge or court shall decline to
render judgment by reason of the silence, obscurity or insufficiency of the laws. It argues that
the application or interpretation placed by the Court upon a law is part of the law as of the date of
the enactment of the said law since the Courts application or interpretation merely establishes
the contemporaneous legislative intent that the construed law purports to carry into effect. Yet,
the Court argues that the Court can legislate, pursuant to Article 9 of the New Civil Code.
However, even the legislator himself recognizes that in certain instances, the courts do and must
legislate to fill in the gaps in the law; because the mind of the legislator, like all human beings,
is finite and therefore cannot envisage all possible cases to which the law may apply.
2. Republic v. CA and Molina, G.R. No. 108763, February 13, 1997

Guidelines presented by the court.

The Family Code of the Philippines provides an entirely new ground (in addition to those
enumerated in the Civil Code) to assail the validity of a marriage, namely, psychological
incapacity. In addition to resolving the present case, the court finds the need to lay down
specific guidelines in the interpretation and application of Article 36 of the Family Code. In the
present case, it appears to that there is a difficulty, if not outright refusal or neglect in the
performance of some marital obligations of the respondent spouse. Mere showing of
irreconcilable differences and conflicting personalities in no wise constitutes psychological
incapacity. Hence, the Court decided to go beyond merely ruling on the facts of this case vis-avis existing law and jurisprudence. For psychological incapacity to prosper, three characteristics
should manifest: gravity, juridical antecedence and incurability.

Note : The school of legal philosophy that challenges the orthodox view of U.S. Jurisprudence
under which law is characterized as an autonomous system of rules and principles that courts
can logically apply in an objective fashion to reach a determinate and apolitical judicial
decision
Legal realists maintain that common-law adjudication is an inherently subjective system that
produces inconsistent and sometimes incoherent results that are largely based on the political,
social, and moral predilections of state and federal judges.
Legal realism is not a unified collection of thought. Many realists, like Pound and Llewellyn,
were sharply critical of each other and presented irreconcilable theories. Yet, five strands of
thought predominate in the movement. The strands focus on power and economics in society, the
persuasion and characteristics of individual judges, society's welfare, a practical approach to a
durable result, and a synthesis of legal philosophies.
- The focus is on characteristics of individual judges and societys welfare.

Power and Economics in Society

The first strand is marked by the nihilistic view that law represents the will of society's most
powerful members. This view is articulated by Thrasymachus in Plato's Republic, when he tells
Socrates that in every government "laws are made by the ruling party in its own interest," and
"the ruling element is always the strongest." When courts speak in terms of what is right and just,
Thrasymachus said, they are speaking "in the interest of those established in power." Justice
Holmes echoed these sentiments when he wrote that the law must not be perverted to prevent the

natural outcome of dominant public opinion (LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539,
49 L. Ed. 937 [1905]).
Realists argued that law frequently equates the dominant power in society with pervasive
economic interests. During the incipience of the U.S. legal realism movement in the nineteenth
century, the United States was transformed from a static agrarian economy into a dynamic
industrial market. Realists asserted that U.S. Common Law facilitated this transformation in a
number of ways. Horwitz reported in The Transformation of American Law that when
interpreting an insurance contract, one judge remarked in 1802 that courts must not adopt an
interpretation that will "embarrass commerce." Instead, the judge said, courts are at liberty to
"adopt such a construction as shall most subserve the solid interests of this growing country."
To help subsidize the growth of a competitive economy in the nineteenth century, realists have
argued, U.S. judges commonly frowned on claims brought by litigants seeking monopolistic
power. For example, in Palmer v. Mulligan, 3 Cai. R. 307, 2 A.D. 270 (1805), a downstream
landowner asked the New York Supreme Court to grant him the exclusive right to use river water
for commercial activity despite any injuries that might result to upstream owners. The court
refused to grant such a right because if it did "the public would be deprived of the benefit which
always attends competition and rivalry." In a subsequent case, the New York Supreme Court held
that a landowner's right to enjoy his property could be "modified by the exigencies of the social
state" (Losee v. Buchanan, 51 N.Y. 476 [1873]). The court added, "We must have factories,
machinery, dams, canals and railroads."
At the same time the common law was facilitating economic expansion, realists claimed that it
was also helping to increase the number of exploited U.S. citizens. Realists were skeptical of the
traditional description of the U.S. economy as a free market. They felt that the economy was
regulated by common-law principles that safeguarded the interests of society's wealthiest
members. In support of this contention, realists pointed to landlord-tenant laws that entitled
lessors to evict lessees for technical breaches of their lease, LABOR LAWS that allowed
management to replace striking workers, and contract laws that permitted employers to terminate
their workers without justification.
The realists' economic analysis of law spawned two related movements in U.S. jurisprudence
that occupy polar extremes on the political spectrum. One is the conservative law and economics
movement, whose adherents, most prominent of whom is RICHARD POSNER, believe that
common-law principles must be interpreted to maximize the aggregate wealth of society without
regard to whether such wealth is distributed equally. The other is the liberal Critical Legal
Studies movement, whose adherents, called crits, believe that the law must be utilized to
redistribute wealth, power, and liberty so that every citizen is guaranteed a minimum level of
dignity and equality.
Since the mid-1900s, the crits have focused less on what they perceive as economic exploitation
in the law, and more on what they see as political exploitation. In this regard they have assailed
various U.S. courts for advancing the interests of adult, white, heterosexual males at the expense
of women, blacks, and homosexuals. The crits have commonly referenced three cases to
corroborate this point: McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262

(1987), in which the Supreme Court rejected a constitutional challenge to Capital Punishment
despite evidence that African American defendants are almost three times more likely than
whites to receive the death penalty for murdering a white person; Craig v. Boren, 429 U.S. 190,
97 S. Ct. 451, 50 L. Ed. 2d 397 (1976), in which the Supreme Court ruled that the EQUAL
PROTECTION CLAUSE of the Fourteenth Amendment provides less protection against
discrimination for women than for members of other minority groups; and Bowers v. Hardwick,
478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), in which the Supreme Court refused to
recognize a constitutional right to engage in Sodomy. However in 2003, the Supreme Court
overturned the Bowers holding in Lawrence v. Texas 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed.
2d 508.

The Persuasion and Characteristics of Individual Judges

The second strand of realist thought subscribes to the relativistic view that law is nothing more
than what a particular court says it is on a given day, and that the outcome to a legal dispute will
vary according to the political, cultural, and religious persuasion of the presiding judge. Some
realists, such as JEROME N. FRANK, another prominent thinker in U.S. jurisprudence during the
1920s and 1930s, insisted that a judge's psychological and personality characteristics also sway
the judicial decision-making process. Justice BENJAMIN N. CARDOZO of the Supreme Court went
so far as to characterize judges as legislators in robes.
The notion that judges legislate from the bench was a revolutionary idea that flew in the face of
orthodox legal thought in the eighteenth and nineteenth centuries. In The Federalist, no. 78,
Alexander Hamilton enunciated the orthodox position when he said the judiciary is the "least
dangerous branch" because it has "neither force nor will, but merely judgment." The legislature,
Hamilton said, has the power to prescribe the rights and duties by which the country is to be
regulated, and the executive has the obligation to enforce these laws through the power of the
sword. The role of the judiciary, Hamilton wrote, is simply to interpret and apply the laws passed
by the other two branches.
Hamilton's view resonated in the opinions of Chief Justice John Marshall, who wrote that "courts
are the mere instruments of the law, and can will nothing" (Osborn v. Bank of United States, 22
U.S. [9 Wheat.] 738, 6 L. Ed. 204 [1824]). Judicial power, Marshall said, should never be
exercised for the purpose of implementing the will of the judge. Instead, courts must exercise
their power solely to implement the will of legislators, who, as the elected representatives of the
American people, embody the "will of the law."
Hamilton and Marshall both believed that law is an autonomous body of knowledge independent
and distinguishable from the personal preferences of the judge applying it, and that it is possible
to interpret this body of knowledge in an objective fashion. Adherents to this theory of law are
known as formalists. In the nineteenth century, formalists asserted that state and federal law
constitute a rational system of rules and principles that judges can apply in a mechanical fashion
to reach a clear, certain, and uncontroversial resolution to a legal dispute.
Realists, such as Justice Cardozo, questioned the formalists' assumption that law could be
autonomous and objective, or produce demonstrably certain outcomes. In The Nature of the

Judicial Process, a groundbreaking book first published in 1921, Cardozo argued that law is a
malleable instrument that allows judges to mold amorphous words like reasonable care,
unreasonable restraint of trade, and due process to justify any outcome they desire.
For example, courts are commonly asked to invalidate contracts on the ground that one party
exercised duress and Undue Influence in coercing another party to enter an agreement. Cardozo
noted that terms such as duress and undue influence are subject to interpretation. He argued that
judges who are inclined to shape the law in favor of society's weaker members will construe
them broadly, invalidating many contracts that stem from predatory behavior. On the other hand,
judges who are inclined to shape the law in favor of society's stronger members will construe
such words narrowly, allowing particular individuals to benefit from their guile and acumen.
Even when language is clear, Cardozo explained, the law often presents courts with competing
and contradictory principles to apply and interpret. For example, in Riggs v. Palmer, 115 N.Y.
506, 22 N.E. 188 (1889), the New York Court of Appeals was presented with the question of
whether a man could inherit under a will that named him as a beneficiary, even though he had
murdered the testator, his grandfather. The lodestar of testamentary interpretation, Cardozo
observed, is that courts must interpret a will according to the explicit intentions of the testator. In
this case, juxtaposed with this seemingly unequivocal rule was the ancient Maxim of Equity, "No
man shall profit from his own wrong." Depending on the outcome the court of appeals desired to
reach in Riggs, Cardozo concluded, the panel of three judges could have relied on either legal
axiom in support of its decision. In fact, the court was divided on the issue, with two judges
voting to disinherit the murderous grandson, and the other voting to enforce the will.

Society's Welfare
Convinced that common-law principles can be manipulated by the judiciary, Cardozo was
concerned that instability and chaos would result if every judge followed his or her own political
convictions when deciding a case. To forestall the onset of such legal disarray, Cardozo and other
realists argued that all judges must interpret the law to advance the welfare of society. In Posner's
biography of Cardozo, he quotes him as saying, "Law ought to be guided by consideration of the
effects [it will have] on social welfare." This theory of law is known as sociological
jurisprudence, and represents the third major strand of thought in the U.S. legal realism
movement. Proponents of sociological jurisprudence encouraged judges to consult communal
mores, ethics, and religion, and their own sense of justice when attempting to resolve a lawsuit in
accordance with the collective good.
Sociological jurisprudence was foreshadowed by English philosopher Jeremy Bentham, who
argued that the law must serve the interests of the greatest number of people in society. Bentham,
whose legal philosophy is known as utilitarian jurisprudence, defined the collective good in
terms of pain and pleasure. Judges should decide cases, Bentham thought, to achieve results that
will maximize the pleasure of the majority of the residents in a given community, without much
concern for the pain that might be inflicted on the balance of society.

Some realists turned Bentham's philosophy on its head, arguing that the law should serve the
interests of the most fragile members in society because they are the least represented in state
and federal legislative assemblies. This group of realists was affiliated with the U.S. Progressive
movement, which became popular during the first quarter of the twentieth century as it sought to
reform society by enacting legislation to protect certain vulnerable classes of employees,
particularly women and children, from harsh working conditions. These realists were among the
most vocal detractors from the Supreme Court's decision in Lochner, which struck down a state
law prescribing the maximum number of hours employees could work during a given week in
the baking industry.

A Practical Approach to a Durable Result

Whereas sociological jurisprudence sought to utilize the common law as an engine of social
reform, legal pragmatism, the fourth strand of realist thought, sought to employ common-law
principles to resolve legal disputes in the most practical way. Pragmatists argued that a judge
should undertake a four-step process when rendering an opinion.
First, the judge must identify the competing interests, values, and policies at stake in the lawsuit.
Second, the judge must survey the range of alternative approaches to resolving the legal issues
presented by the lawsuit. Third, the judge must weigh the likely consequences of each approach,
considering the effect a particular decision may have on not only the parties to the lawsuit but
also other individuals faced with similar legal problems. Fourth, the judge must choose a
response that will yield the most durable result in the course of the law. This pragmatic legal
philosophy is often characterized as result-oriented jurisprudence.

A Synthesis of Legal Philosophies

The fifth strand of realist thought, legal empiricism, attempted to synthesize the other four
strands into a single jurisprudence. Made famous by Holmes, legal empiricism claimed that law
is best explained as a prediction of what judges will do in a particular case. Empiricists, who
were influenced by behaviorists Ivan Pavlov and B. F. Skinner, argued that lawyers can predict
the outcome of legal disputes by examining the judicial behavior of a given court.The
empiricists' efforts to integrate the other four schools of legal realism into one coherent
philosophy was reflected by their belief that judicial behavior can be influenced by political,
economic, sociological, practical, and historical considerations, as well as personal and
psychological prejudices and idiosyncrasies. Lawyers and laypersons who spend more time
studying these elements and less time studying the labyrinth of legal rules and principles that
make up the law, the empiricists concluded, will have a better idea of how a judge will rule in a
particular case.

Floresca
WE hold that although the other petitioners had received the benefits under the
Workmen's Compensation Act, such may not preclude them from bringing an action
before the regular court because they became cognizant of the fact that Philex has
been remiss in its contractual obligations with the deceased miners only after
receiving compensation under the Act. Had petitioners been aware of said violation
of government rules and regulations by Philex, and of its negligence, they would not
have sought redress under the Workmen's Compensation Commission which
awarded a lesser amount for compensation. The choice of the first remedy was
based on ignorance or a mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded to the lower court for
further proceedings. However, should the petitioners be successful in their bid
before the lower court, the payments made under the Workmen's Compensation Act
should be deducted from the damages that may be decreed in their favor.
Contrary to the perception of the dissenting opinion, the Court does not legislate in
the instant case. The Court merely applies and gives effect to the constitutional
guarantees of social justice then secured by Section 5 of Article 11 and Section 6 of
Article XIV of the 1935 Constitution, and now by Sections 6, 7, and 9 of Article 11 of
the DECLARATION OF PRINCIPLES AND STATE POLICIES of the 1973 Constitution, as
amended, and as implemented by Articles 2176, 2177, 2178, 1173, 2201, 2216,
2231 and 2232 of the New Civil Code of 1950.
To emphasize, the 1935 Constitution declares that:
Sec. 5. The promotion of social justice to insure the well-being and economic
security of all the people should be the concern of the State (Art. II).
Sec. 6. The State shall afford protection to labor, especially to working women, and
minors, and shall regulate the relations between landowner and tenant, and
between labor and capital in industry and in agriculture. The State may provide for
compulsory arbitration (Art. XIV).
Republic vs Molina

The case at bar challenges the decision of CA affirming the marriage of the respondent Roridel
Molina to Reynaldo Molina void in the ground of psychological incapacity. The couple got
married in 1985, after a year, Reynaldo manifested signs of immaturity and irresponsibility both
as husband and a father preferring to spend more time with friends whom he squandered his
money, depends on his parents for aid and assistance and was never honest with his wife in

regard to their finances. In 1986, the couple had an intense quarrel and as a result their
relationship was estranged. Roridel quit her work and went to live with her parents in Baguio
City in 1987 and a few weeks later, Reynaldo left her and their child. Since then he abandoned
them.

Salvacion v Central Bank

FACTS: Greg Bartelli, an American tourist, was arrested for committing four counts
of rape and serious illegal detention against Karen Salvacion. Police recovered from
him several dollar checks and a dollar account in the China Banking Corp. He was,
however, able to escape from prison. In a civil case filed against him, the trial court
awarded Salvacion moral, exemplary and attorneys fees amounting to almost
P1,000,000.00.
Salvacion tried to execute the judgment on the dollar deposit of Bartelli with the
China Banking Corp. but the latter refused arguing that Section 11 of Central Bank
Circular No. 960 exempts foreign currency deposits from attachment, garnishment,
or any other order or process of any court, legislative body, government agency or
any administrative body whatsoever. Salvacion therefore filed this action for
declaratory relief in the Supreme Court.
ISSUE: Should Section 113 of Central Bank Circular No. 960 and Section 8 of
Republic Act No. 6426, as amended by PD 1246, otherwise known as the Foreign
Currency Deposit Act be made applicable to a foreign transient?
HELD: NO.
The provisions of Section 113 of Central Bank Circular No. 960 and PD No. 1246,
insofar as it amends Section 8 of Republic Act No. 6426, are hereby held to be
INAPPLICABLE to this case because of its peculiar circumstances. Respondents are
hereby required to comply with the writ of execution issued in the civil case and to
release to petitioners the dollar deposit of Bartelli in such amount as would satisfy
the judgment.
Supreme Court ruled that the questioned law makes futile the favorable judgment
and award of damages that Salvacion and her parents fully deserve. It then
proceeded to show that the economic basis for the enactment of RA No. 6426 is not
anymore present; and even if it still exists, the questioned law still denies those
entitled to due process of law for being unreasonable and oppressive. The intention
of the law may be good when enacted. The law failed to anticipate the iniquitous
effects producing outright injustice and inequality such as the case before us.
The SC adopted the comment of the Solicitor General who argued that the Offshore
Banking System and the Foreign Currency Deposit System were designed to draw

deposits from foreign lenders and investors and, subsequently, to give the latter
protection. However, the foreign currency deposit made by a transient or a tourist is
not the kind of deposit encouraged by PD Nos. 1034 and 1035 and given incentives
and protection by said laws because such depositor stays only for a few days in the
country and, therefore, will maintain his deposit in the bank only for a short time.
Considering that Bartelli is just a tourist or a transient, he is not entitled to the
protection of Section 113 of Central Bank Circular No. 960 and PD No. 1246 against
attachment, garnishment or other court processes.
Further, the SC said: In fine, the application of the law depends on the extent of its
justice. Eventually, if we rule that the questioned Section 113 of Central Bank
Circular No. 960 which exempts from attachment, garnishment, or any other order
or process of any court, legislative body, government agency or any administrative
body whatsoever, is applicable to a foreign transient, injustice would result
especially to a citizen aggrieved by a foreign guest like accused Greg Bartelli. This
would negate Article 10 of the New Civil Code which provides that in case of doubt
in the interpretation or application of laws, it is presumed that the lawmaking body
intended right and justice to prevail.
___________
NOTES:
On February 4, 1989, Greg Bartelli y Northcott, an American tourist, coaxed and
lured petitioner Karen Salvacion, then 12 years old to go with him to his apartment.
Therein, Greg Bartelli detained Karen Salvacion for four days, or up to February 7,
1989 and was able to rape the child once on February 4, and three times each day
on February 5, 6, and 7, 1989. On February 7, 1989, after policemen and people
living nearby, rescued Karen, Greg Bartelli was arrested and detained at the Makati
Municipal Jail. The policemen recovered from Bartelli the following items: 1.) Dollar
Check No. 368, Control No. 021000678-1166111303, US 3,903.20; 2.) COCOBANK
Bank Book No. 104-108758-8 (Peso Acct.); 3.) Dollar Account China Banking
Corp., US$/A#54105028-2; 4.) ID-122-30-8877; 5.) Philippine Money (P234.00) cash;
6.) Door Keys 6 pieces; 7.) Stuffed Doll (Teddy Bear) used in seducing the
complainant.