Philo

The Modern
Legal
Realist
Perspective
The Great Minds Behind
Law is built on
experiences
and not logic.
Justice Oliver Wendell

Holmes
(1902-1932)
Judges not only declare
the law as they
understand it but
actually make law by
their rulings, though
they are restrained by
the materials and
sources of the law, such
as the previous
Professor John Chipman
decisions of other judges
Gray and their own.
(1839-1915)
He was the
leading
proponent of
PRAGMATISM.
John Dewey
(1859-1952)
He was a
pioneer of the
legal realism
movement.
Jerome Frank
(1941-1957)
He was known
for his
philosophical
empiricism and
skepticism
David Hume
(1711-1776)
He is part of the Harvard

Law Schools Critical
Legal Studies movement
that helped disrupt the
METHODOLOGICAL
CONSENSUS in American
law schools.
Roberto Mangabeira Unger
(March 4, !947)
He founded the Uppsala

School of Philosophy,
which adopted
phenomenological and
conceptual analysis and
rejected metaphysical
suppositions and
Axel Anders Theodor subjectivism.
Hagerstrom
(1868-1939)
A well known proponent

of the Scandinavian
Legal Realism and is also
a leading legal thinker of
the Uppsala school of
jurisprudence.
Vilhelm Lundset
(1882-1955)
He gave emphasis on
the psychological
significance of legal
ideas.
Karl Olivercrona
(1897-1980)
He was a legal and

moral philosopher and
scholar of international
law.
Alf Niels Christian Ross

(1899-1979)
Labels
Modern Legal Realism
describes the
experimental outlook
of the realist school
of jurisprudence on
the traditional
assumptions on the
Labels
Pragmatic Jurisprudence
describe the post-

meta-physical view of
realist school of
jurisprudence
Labels
Pragmatic Jurisprudence
describe the post-

meta-physical view of
realist school of
jurisprudence
Legal Realism: A
Distinct Juristic
School
Legal realists as the
radical wing of the
functional school of
jurisprudence because
of their concept of the
nature of the law.
-Edgar Bodenheimer
(1908-1991)
Legal Realism: A
Distinct Juristic
School
The realist perspective is
but a gloss on the
functional philosophy of
law.
-Julius Stone
Legal Realism: A
Distinct Juristic
The Difference
School
LEGAL REALISTS are more
concerned with actual operation
of the legal order in terms of the
EXPERIENCES AND
INTEREXPERIENCES of the people
in the legal ordering of society.
Judicial Legal Realism
Human Law and Human Experience
JUSTICE OLIVER WENDELL

HOLMES
-the ablest of and purest of men have
differed upon the subject. The precepts
of the natural law are not manifest but
still need proof and reasoning
-the law is not a brooding omnipresence
in the sky
-the law should address human
-Justice Holmes WARNED
the law should not be

considered as a system of
reason, not a deduction from
ethical principles, corollaries
and axioms, or what not
The BAD MAN THEORY

If you really want to know the nature of
law you must not take it from the point of
view of the GOOD MAN who desires to
do what is expected of him BUT from
the view of the BAD MAN who cares
ONLY for the consequences which
such knowledge enables him to
predict WHAT THE COURT WILL DO
TO HIM
CONCEPT OF JUDICIAL LEGAL REALISM
a BAD MAN has as much reason as a GOOD

MAN for wishing to avoid an encounter
with the public force and therefore,
you can see the practical importance of
a distinction between law and
morality
take the VIEW OF THE BAD MAN we shall
find that he does not care two straws for the
axioms or deductions, but that he does want
Separation of the Law from Its Source
Professor John
Chipman Gray
CONCEPT OF NATURE OF LAW
THE LAW is the whole system of rules applied by the
courts.
that fortiori whoever has the absolute authority not only
to interpret the law BUT to say what the law is, is truly
the lawgiver
SEPARATION OF LAW AND ITS SOURCES
Courts of any human society draw the law

by:
The formal utterances of the
legislative organ of the society
LEGISLATIVE ACTS
It is the courts who interpret the legislative
acts.
SOCIETY WITH JUDICIAL BUT NO

LEGISLATIVE ORGAN
-follow rules derived by the courts
from other sources
-former decisions of their own
courts
-customs;
For Professor Gray, the COURTS put life into the dead
words of the statute
CONSTRUCTIVE
SKEPTICS
1. Rule Skeptics
a. questions the notion of the legal
formalists that legal rules are
precise and can be applied easily
in any given case.
b. disputes the claim that legal rules

are by themselves dictate the result
or decision of a case
"The modern mind is a mind free
of childish emotional drags, a
mature mind. And Law if it is to
meet the needs of modern
civilization must adopt itself to the
modern mind. It must cease to
embody a philosophy opposed to
change. The recognition that man
is not made for the law but the law
is made by and for men".
CONSTRUCTIVE
SKEPTICS
2. Fact Skeptics
a. Fact skeptics feel that the major
cause of uncertainty is "the fact
uncertainty, the unknowability
before the decision of what the
trial court will find as the facts
and the unknowability after
the decision of the way in way
it found those facts.
CONSTRUCTIVE
SKEPTICS
2. Fact Skeptics
The formal theory of the decisional
process is the product of the
substantive legal rules applied to the
case or by saying R x F = D. where R
is the rule, F the facts, D the decision
or judgement. An erroneous F will
result in erroneous D.
CONSTRUCTIVE
SKEPTICS
3. Opinion Skeptics
A court opinion contains the rationalization of the
decision handed down in a case. The opinion
provides the basis for understanding why and
how a decision was arrived at and for evaluating
its significance a judicial guideline or precedent
in future similar or nearly similar cases. A court's
opinion may qualify a court precedent only on
that part of the opinion which directly
addresses the material facts and the decisive
legal rule to the actual issue or issues in a case
ROLE OF MATERIAL
FACTS
A court may disregard a certain
facts as irrelevant or immaterial.
Whether a judge considers certain
facts as irrelevant or assumes the
existence of certain facts which
may not be in the record of the
case. Point is material facts are
what the judge say which are.
ROLE OF EXPERIENCE AND SOCIAL
ADVANTAGE
The law is not the exclusive product of logic and
not to be viewed as a simple deductive process.
Justice Holmes warned that logic has not been
the life of the law for one can give conclusion a
logical form. The premise must have first to be
valid, that is to say based on social advantage -
social and economic legislation. It is his view of
law as the expression of the social force and
experience upon human activity. Finally, his
realist view that life of the law has not been
logic but human experience of social advantage.
ROLE OF METALEGAL STIMULI
1. Formalist concept
-decisions are said to inevitably follow
on the basis of stare decisis
2. Modern Realist
-legal rules and material facts
constitute only one of two quantities
ROLE OF METALEGAL STIMULI
2. Modern Realist
-the second quantity is composed of
the metalegal stimuli which play an
important role in the judicial process
3. Metalegal Factors
-personal values and attitudes of
judges influence their legal
interpretations and actions
Stimulus set by the Witnesses
Stimulus set by the Lawyers
Stimulus set by the Judges Legal Attitudes
and Prejudices
Stimulus set by the Judges Predilections
and Preconceptions
Stimulus set by Historical Events and
Political Precedents
Stimulus set by current Social Values and
Economic Postulates
THE LAW AS A PRODUCT OF THE
JUDICIAL PROCESS
(jR x mF) x (mlS x jP) = L
Where, jR = jural Rules
mF = material Facts
mlS = metalegal Stimuli
jP = judicial Personality
EXCLUSION OF THE LEGISLATIVE

AND EXECUTIVE FUNCTION
As John Chipman puts it, statutes
enacted by the legislature and orders
issued by the executive department
are only source of law.
THE ADJUDICATIVE PROCESS AS
THE PRIME MOVER
Until the adjudicative applies the legal

rules, says John Chipman Gray, there is
no law.
THE LAW AND ITS PURPOSE
Realist school of jurisprudence

considered the administration of justice
as the end of the law.
Social Legal Realism
Dewey advances the view that

the life of the law is the social
experience of the people and
tested and guided by social
experience.
A. Source of Law
In the book of My Philosophy of Law,
Dewey demonstrates the relationship
between custom and social process. He
likens social process to a stream and
custom to the banks. The banks govern
the course which the stream takes and
yet over a long period of time are
themselves modified by the attrition of
the running water.
B. The End or Purpose of Law
In book of My Philosophy of Law,
Dewey believes that the purpose of
a philosophy of law is to provide
extrinsic standards by which the
precepts of law may be judge.
It is a standard which is
comparatively stable, and yet is
susceptible to necessary
C. The Application of Law
What is called application is not
something that happens after a rule of
statute is laid down but is a necessary
part of them; such necessary part
indeed that in given cases we can judge
what the law is as a matter of fact only
by telling how it operates and what its
effects are in and upon human activities
that are going on.
Critical Legal Realism
Roberto Mangabeira Unger and the

Critical Legal Studies Movement
(CLS)
Critical Legal Realism and its critique of the
Dominant Liberal Paradigm
The bourgeois concept of law is but the

will of the dominant elite erected into
legislation, a will whose essential
character and direction are determined
by material and economic conditions of
the existence of the dominant class.
- Karl Marx, The Communist Manifesto
Deconstruction as the technique used

by Critical Legal Realists to critique
the ideas of DLP
STEP 1: Analysis of traditions

STEP 2: Reformation
Ideas from the DLP that the CLS

strongly oppose:
1. The social order is a free society for
there is individual initiative to
undertake any business or
enterprise
2. The underlying economic thrust of
the contemporary social order in
the control, production, distribution
and exchange of goods and credit is
DECONSTRUCTION OF THE
DOMINANT LEGAL PARADIGM
Jural Constructs Abused under the
Dominant Liberal Paradigm:
1. Rule of Law
2. Separation of Powers
3. Objectivism and Formalism
Judicial Activism : Defined
A philosophy of judicial decision-

making whereby judges allow their
personal views about public policy,
among other factors, to guide their
decisions, usu. with the suggestion
that adherents of this philosophy tend
to find constitutional violations and
are willing to ignore precedent.
Judicial Activism : Explained
Conventional wisdom recognizes judicial discretion
otherwise known as judicial legislation. What
outrages the critical legal scholars is the abuse by
the courts of the text of statutes, which are not
otherwise indeterminate.
The authority of Justice Oliver Wendell Holmes is
even cited to support judicial activism. But Judge
Holmes did not posit the concept of judicial
discretion in absolute terms. HolmEs knew better.
He guardedly stated that while, courts legislate
Judicial Activism : Explained
A. JUDICIAL ACTIVISM BASED ON MOLECULAR
TO MOLAR MOTION IS CONDEMNABLE
B. THE INDETERMINACY OF A STATUTE OR
RULE APPEARS IN TWO FORMS:
1. When a statute or rule is obscure or vague.
2. When a statute or rule provides
inconclusive guidelines as to how right are to be
exercised or how obligations are to be
performed.
In the field of LABOR RELATIONS LAW:
ARTICLE 279 of the LABOR CODE OF
THE PHILIPPINES
Insular Life Assurance Employees Association
vs.
Insular Life Assurance Company Ltd.
Mercury Drug Company vs.

Case
Court of Industrial Relations Illustration
Luzon Stevedoring Corporation vs.
Court of Industrial Relations
Feati University Club vs.

E. CONGRESS SIGNAL TO THE
COURT SECTION 34 of REPUBLIC ACT NO. 6715 AMENDED
ARTICLE 279 of the LABOR CODE OF THE PHILIPPINES
s
Section 34.Article 279 of the Labor Codeis hereby

amended to read as follows:
"ARTICLE 279. Security of Tenure. - In cases of regular

employment, the employer shall not terminate the
services of an employee except for a just cause or when
authorized by this Title. An Employee who is unjustly
dismissed from work shall be entitled to reinstatement
without loss of seniority rights and other privileges and to
his full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed
III. CRITIQUE on
Popular and Liberal
Concepts of Democracy
The critique against the idealistic version of

democracy is that it is awash with inapt hope on
and misplaced confidence in the majoritarian
rule and the theory of the consent of the
governed.
According to Robert Unger:
The elite who shrewdly seeks the support

of the people through the electoral process
and other established representative
institutions may just stop doing so,
especially when the domination of the socio-
legal order has reached its maximum
intensity. When this situation is reached,
the dominant liberal paradigm becomes
IV. TRANSFORMATION
of the LIBERAL LEGAL ORDER
Two (2) important means:

1. The Norm of Basic Equality
2. The Norm of Democratic Republicanism
Transformative Context of the

Post-Liberal Order
Prime consideration to achieve legal
order
1. Must not fall hostage to any faction
2. Eliminate social divisions and
heirarchy
Transformative Context of the

Post-Liberal Order
Resistance right
Decentralization of the Government
Reorganization of the Market
Economy
Reconstruction of System of Rights
Decentralization of the
Government
Problem
Avid competition for social and
material good
Extemporaneous and irresponsible
use of governmental powers
Decentralization of the
Government
Resolution
Accountability
Dispersal of govt powers
Quick and clear resolution of
overlapping interests among the
branches of the govt
Establishment of responsible,
accountable party government

Economy
Problem
Monopoly
Cartelization

Economy
Resolution
Rotating public capital fund at
reasonable interest rates
Constraints:
1. Merger of domestic
entrepreneurs
2. Rapid population growth
Reconstruction of the System

of Rights
Problem
Concept of right and obligations
are based on elitist conditions
Dominion of the upper class over
the lower class
Social division and hierarchy
Reconstruction of the System

of Rights
Resolution
Destabilization Right
Solidarity Right
Market Right
Function of Law
Highlights the desirable relation of

law to the society
1. Redeem people from social division
and economic hierarchy
2. Law as a neutral and objective
means of social control with
emphasis on its LIBERATING
FUNCTION
Psychological Legal Realism
Jurisprudents
Axel Hagerstrom (1868-1939)

Vilhelm Lundstedt (1882-1955)
Karl Olivecrona (1893-1963)
Alf Ross (1894-1974)
A.Critique of Judicial Legal

Realism
Alf Ross
There is over-reliance on the role of

the metalegal stimuli in the Judicial
Process and overemphasis on the
vicissitudes of fact-finding in the
courts.
B. Critique of Legal Ideology
Vilhelm Lundstedt
The insistence of legal realism on
certainty and predictability in the
legal order, commendable though it
may be, is relatively less problematic
than the danger posed by legal
ideology.
Axel Hangerstorm
Ideology is nothing but a private
state of mind.
Karl Olivecrona
The propensity to objectivize
abstract values in the analysis of the
nature of the law and its component
system of Jural Relations gives the
wrong impression that such values
have real basis when there is none.
For them:
To characterize statute or rule as
just or unjust in terms of the
natural law theory, is meaningless.
The concept of the binding force of
law based on the consent of the
governed to the will of supreme
political superior remains verbal
C. Nature of Law
For psychological legal realism;

The law and its component
system of jural relations are real
because they are social facts.
C. Nature of Law
Vilhelm Lundstedt
The feeling for what is good for
society is not an abstract criterion but
a fact conscious behavior since it is
psychologically real.
C. Nature of Law
Question raised on the aforementioned
premise:
IF THE LAW AND JURAL RELATIONS ARE
SOCIAL FACTS OPEN TO PUBLIC
EVALUATION ON BASIS OF THE FEELING
FOR WHAT IS GOOD FOR SOCIETY,
THEN THERE IS STILL A JUDGMENT OF
VALUE INVOLVED, HENCE STILL BASED
ON WORD-MAGIC.
No.
C. Nature of Law
Thus, for Scandinavian legal realists;
The legal ordering should be on the

psychological mode, which is to say on
the basis of the feeling for what is
good for society.
Karl Olivecrona
The reality of law and jural relations as
social facts is based on the general human
feeling that what is good for the society is
paramount.
C. Nature of Law
The jussiveness of the law is found on

the fact that it is binding
psychologically
Since the law is a means of influencing

and regulating human behavior it follows
that the binding force of the law is no
longer illusory idea of the consent of the
governed.
C. Nature of Law
Thus, for Scandinavian legal realists;
The obligatory nature of the law, then,

becomes acceptable to society making
enforcement thereof largely
unnecessary yet obtaining the desired
results.
Alf Ross
The psychological compulsion to obey the
law as a general behavior or feeling and
attitude of complying with and respecting
D. Jural Relations
I. Definition
- The basic jural relationship of individuals
to other individuals and individuals to state.
- It represents the ultimate connection to
which all legal facts, legal things, and legal
persons are reduced.
D. Jural Relations
Right: Obligation
II. Types:
1.The Claim-Duty Relation

2.The Power-Liability Relation
3.The Privilege-Inability Relation
4.The Immunity-Disability Relation.
D. Jural Relations
III. Criticisms: THE CONCEPT OF RIGHT

AND OBLIGATION ARE VERBAL MAGIC.
Scandinavian legal realists question

the assertion that jural relations exist
due to the guarantee of legal
enforcement by the courts.
First Guarantee: GUARANTEED RIGHT

IS NOT TRULY VIOLATED.
D. Jural Relations
Illustration: The Legal Concept of

Ownership.
Premise: Perception of Ownership is

recognized by law and protected in court.
Argument: There is no right to recognize
unless ownership is violated.
D. Jural Relations
III. Criticism
Axel Hangerstorm
The very existence of the right is in real
trouble when the facts supporting
ownership are not proven in court or the
case is dismissed due to technical legal
rules in prescription of actions.
D. Jural Relations
III. Criticism
Second Guarantee: LEGALLY RISK-FREE
TO THE OWNER ACTING ST WILL TO
THE THING OWNED OR UNDER
POSSESSION.
Vilhelm Lundstedt
This positional advantage of owner is
nothing but a consequence of the
guarantee by the state of the owners
possession for it is not the right itself.
D. Jural Relations
IV. Scandinavian Beliefs: JURAL

RELATIONS MUST BE ANALYZED ON
BASIS OF PSYCHOLOGICAL REALISM.
Karl Olivecrona
The reality in jural relations is what we call

Psychological Connection between rights,
namely:
D. Jural Relations
Karl Olivecrona
The reality in jural relations is what we call

Psychological Connection between rights,
namely:
a. Authorities (Claims and Powers)

b. Exemptions (Privileges and immunities)
c. Correlative Obligations;
- Responsibilities (Duties and Liabilities)
- Debilities (Inabilities and Disabilities)
End of Slides.

Philo

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Philo

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The Modern

Justice Oliver Wendell

He is part of the Harvard

He founded the Uppsala

A well known proponent

He was a legal and

Alf Niels Christian Ross

describe the post-

describe the post-

Human Law and Human Experience

JUSTICE OLIVER WENDELL

the law should not be

The BAD MAN THEORY

CONCEPT OF JUDICIAL LEGAL REALISM

a BAD MAN has as much reason as a GOOD

SEPARATION OF LAW AND ITS SOURCES

Courts of any human society draw the law

SOCIETY WITH JUDICIAL BUT NO

b. disputes the claim that legal rules

EXCLUSION OF THE LEGISLATIVE

Until the adjudicative applies the legal

THE LAW AND ITS PURPOSE

Realist school of jurisprudence

Dewey advances the view that

Roberto Mangabeira Unger and the

The bourgeois concept of law is but the

Deconstruction as the technique used

STEP 1: Analysis of traditions

Ideas from the DLP that the CLS

A philosophy of judicial decision-

Mercury Drug Company vs.

Feati University Club vs.

Section 34.Article 279 of the Labor Codeis hereby

"ARTICLE 279. Security of Tenure. - In cases of regular

The critique against the idealistic version of

According to Robert Unger:

The elite who shrewdly seeks the support

Two (2) important means:

Transformative Context of the

Transformative Context of the

Reorganization of the Market

Reorganization of the Market

Reconstruction of the System

Reconstruction of the System

Highlights the desirable relation of

Axel Hagerstrom (1868-1939)

A.Critique of Judicial Legal

There is over-reliance on the role of

B. Critique of Legal Ideology

B. Critique of Legal Ideology

Psychological Legal Realism

B. Critique of Legal Ideology

Psychological Legal Realism

B. Critique of Legal Ideology

For psychological legal realism;

The legal ordering should be on the

The jussiveness of the law is found on

Since the law is a means of influencing

The obligatory nature of the law, then,

1.The Claim-Duty Relation

III. Criticisms: THE CONCEPT OF RIGHT

Scandinavian legal realists question

First Guarantee: GUARANTEED RIGHT