Jurisprudential Schools of Thought by Geoffrey Sore

INSTRUCTION: What laws have been and are, may be known without a knowledge of what they ought to be. In as much as a knowledge of what ought to be is bottom on a knowledge of  antecedence cognate genere, legislation supposes jurisprudence. With regard to the above statement, discuss the ideologies and contribution of the following schools of thought about law:  Natural law, legal positivism, historical school and legal realism. ……………………………………………………………………………………………………… A.

INTRODUCTION

Over time, the subject of law has been a source of controversy and academic exchange. This controversy is due to the different beliefs of the source and role of law in the society. The main questions that arouse these conflicts are two; what is law and why law? Different scholars agree that the law is necessary for the development of society but even with this agreement there is still much conflict on the role and place of law in a developing society. For instance, Lord Devlin argues that a change in a society’s morality amounts to destroying the society or wiping it out while H.L.A Hart refutes sharply saying that a change in society’s morality is not tantamount to destroying it. To him, society is equal to its morality. Other   points of dissention by scholars of jurisprudence relate to the following issues: i. ii. ii. iii. iv. v.

Is law and morality one and should law be used to enforce morality? What What is is the the orig origin in of of law? law? Is law what what it is or is it what what it ought to be? To what extend should should law regulate regulate private affairs affairs of the individual individuals? s? Should Should law be used to to change moralit morality y or does morali morality ty change the the law to suit suit in the society.

Therefore, depending on the unique philosophies of law, the way that we determine and view different principles and different cases in real life can be incredibly different. This is the basis of  the different legal schools of thought with divergent ideologies. It is worth noting that all the schools of thought are important in one way or another in any jurisprudence. APPROACH

In discussing the question, the different schools of thought are addressed and comparisons made where necessary. It also contains my personal view and reservations of the schools of thought. Different scholars are at times discussed exclusively but only their view on the school of thought  being discussed is taken. Most of the scholars scho lars may fall in two or more of the schools of thought. Generally, I have taken the procedure procedu re of discussing the school of thoughts and not the theorists or proponents. As a result, I have not dealt with the backgrounds and biographies of the scholars  but their contribution to the topic. The different schools of thought are discussed in both the geographical, historical and social contexts. Reference materials are indicated in form of foot note.

B. THE IDEOLOGIES AND CONTRIBUTION OF THE LEGAL SCHOOLS OF THOUGHT

The different legal schools of thought are: i.

ii. iii.

iv.

v.

Natural law school of thought which is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through human reason and it is from these laws of nature that human created laws gain whatever force they have. Legal positivism holds that there is no necessary connection between law and morality and that the force of law comes from some basic social facts. Legal realism is a third theory of jurisprudence which argues that the real world practice of law is what determines what law is; the law has the force that it does because becau se of  what legislators, judges, and executives do with it. Sociological jurisprudence The legal philosophy “sociological jurisprudence” is an approach to adjudication that views law as a means to promote social welfare, requiring legislators and judges who will make law in light of  society’s constantly evolving needs and interests. Historical school of thought Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding legal disputes. Scholars have argued that Historical school of thought is the converging point of the sociological and realist thoughts.

We will now examine each school of thought in detail and highlight the major points put across  by the respective proponents. I. THE NATURAL LAW SCHOOL OF THOUGHT

Natural law has been described as a law whose content is set by nature and is thus universal 1. It refers to the unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed.  Natural law theory asserts that there are laws that that are immanent in nature. It asserts that

certain rights or values are inherent in or universally cognizable by virtue of  human reason or human nature. All legislation that takes place must therefore correspond to these laws as much as possible. To the proponents of this school of thought, a law which is unjust ought not to be law. Unjust is that which is contrary to natural law.  Natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good’. goo d’. God is the source of Natural law and a nd it is closely related to morality. From this, it can be justifiably concluded that committing a sin is breaking the law. 1

Legal encyclopedia by Lemual Shaw

 Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests interests one is focused upon. Natural law principles do not change but are immortal and must be respected by all without interrogation. Some of the proponents of the Natural N atural law school of thought include Aristotle who is often said to be the father of natural law believed in the existence of natural  justice or natural right2. His association with natural law was largely dependent on the  Nicomachean Ethics’  interpretation by Thomas Aquinas. He discusses his theory of justice in ‘ Nicomachean and begins by asking what sort of mean a just act is. Aristotle argues that there are two connotations of the word justice.

One is the general justice which is seen when a man’s actions are completely virtuous in all matters in relation to others. The other is the Particular or Partial justice which is the individual virtue that is concerned with treating others equitably3. Even though this was Aristotle’s Aristotle’s view on morality and not a system of laws, his view is similar to that of modern natural law theorists. This is in the sense that argues that political po litical justice is partly derived from nature and partly a 4 matter of convention . The best evidence of Aristotle's having thought there was a natural law comes from the Rhetoric where Aristotle notes that, aside from the "particular" laws that each people has set up for itself, there is a "common" law that is according a ccording to nature5 Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one’s' own city was adverse to the case being made. Stoic natural law Stoicism was a school of Hellenistic philosophy founded in Athens by Zeno of  Citium in the early 3rd century BC. The Stoics believed that destructive emotions resulted from errors in judgment, and that a sage, or person of "moral and intellectual perfection," would not suffer such emotions 6. The development of the tradition of natural justice, as propounded by Aristotle, into one of the natural law is attributed to Stoic.

Whereas the ‘higher law’ to which Aristotle suggested one could appeal was emphatically natural, in contradistinction to being the result of divine positive legislation, the Stoic natural law was indifferent to the divine or natural source of the law: the Stoic’s natural law asserted the existence of a rational and purposeful order to the universe and the means by which a

2

3

4 5 6

Shellens, "Aristotle on Natural Law."  Nicomachean Ethics, Ethics, Bk. V, ch. 3

 Nicomachean Ethics, Ethics, Bk. V, ch. 7  Rhetoric 1373b2–8. Stanford Encyclopedia of Philosophy.

rational being lived in accordance with this order was the natural law, which spelled out action that accorded with virtue 7. Cicero 8 Cicero wrote in his De Legibus that both justice and law derive their origin from God9. For Cicero, natural law obliges us to contribute to the general good of the larger society. The purpose of positive laws is to provide for “the safety of citizens, the preservation of states, and the tranquility and happiness of human life.” In this view, “wicked and unjust statutes” are “anything but ‘laws,’” because “in the very definition of the term ‘law’ there inheres the idea and principle of choosing what is just and true.” Law, for Cicero, “ought to be a reformer of vice and an incentive to virtue.” Cicero expressed the view that “the virtues which we ought to cultivate, always tend to our own happiness, and that the best means of promoting them consists in living with men in that perfect union and charity which are cemented by mutual benefits.”  The general good includes the safety of the citizens, the preservation of  states, and the tranquility and happiness of human life. Ronald Dworkin's "Third Theory" Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature. The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states. The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according according to the Separability Separability Thesis, Thesis, there is no conceptual conceptual overlap between the notions notions of law and morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" (Hart 1994, 185-186). 7 8 9

Natural Law," International International Encyclopedia of the Social Sciences . Daily Dabble in the Classics, Cicero Cicero, De Legibus (Keyes translation), bk. 2, sec. 11.

Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for  example, judges often invoke moral principles that Dworkin believes do not derive their legal  their legal  10 authority from the social criteria of legality contained in a rule of recognition . Other forms of natural law theory today take the form of  Christian Natural law which is based on the Bible, Islamic natural law[sharia law] which is based on the Quran.

II. LEGAL POSITIVISM

Legal positivism is the opposite of natural law theory. Positivists believe that law is what it is in statutes and other instruments. Positivism serves two values. First, by requiring that all law be written, positivism ensures that the government will explicitly apprise the members of society of their rights and obligations. In a legal system run in strict accordance with positivist tenets, litigants would never be unfairly surprised or burdened by the government imposition of an unwritten legal obligation that was previously unknown and nonexistent. Second, positivism curbs judicial discretion. In some cases  judges are not satisfied with the outcome of a case that would be dictated by a narrow reading of existing laws. Legal positivist holds the following in relation to law: i.

inherent or necessary necessary connection between the validity conditions of law and There is no inherent or  ethics or morality.

ii. Laws are rules made, whether deliberately or unintentionally, by human beings.

 Therefore, in legal positivism, the law is seen as being conceptually separate from moral and ethical values (though of course not separated in practice).  The positivist argument is solely about the nature of law as a human institution and not divine as propounded by natural law theorists. Some of the greatest proponents of the legal positivism school of thought include Jeremy Bentham, John Austin, Hans Kelsen, H.L.A Hart and Joseph Raz  Jeremy Bentham, In English speaking philosophy, legal positivism begins with the work of Jeremy Bentham, the utilitarian philosopher. Bentham drew a sharp distinction between people he called: •

10

Expositors - those who explained what the law in practice was; and

Dworkin 1977, p. 40.

•

Censors - those who criticized the law in practice and compared it to their notions of what it ought to be.

The philosophy of law, strictly considered, was to explain the real laws of the expositors, rather  than the criticisms of the censors. This is means that Bentham meant to explain the law as it is in  practice and not what it ought to be. That is why he criticized the critiques of the law[whom he called censors]. As a utilitarian, Bentham believed in the greatest pleasure and least pain in decision de cision making and not merely believing that law is from God and must be respected as it is without question. He lays down a set of criteria for measuring the extent of pain or pleasure that a certain decision will create. Bentham was also noted for calling natural law "nonsense upon stilts." John Austin, Austin’s positivism 11 According to John Austin, the distinguishing aspect of a legal system is the existence of a sovereign who is respected by most members of the society. The sovereign uses sanctions to uphold the law. Austin called the sovereign the ‘uncommanded commander’. He outlines the following: •

•

•

•

•

"Commands" involve an expressed wish that something be done, and "an evil" to be imposed if that wish is not complied with. Rule Rules s are are gene genera rall comm comman ands ds (app (apply lyin ing g gene genera rall lly y to a clas class) s),, as contrasted contrasted with specific or individual commands ("drink wine today" or "John Major must drink wine"). Positive law consisted of those commands laid down by a sovereign (or its agents), to be contrasted to other law- givers, like God's general commands, and the general commands of an employer.  The "sovereign" "sovereign" was defined as a person (or collection of persons) who receives habitual obedience from the bulk of the population, but who does does not not habitu habituall ally y obey obey any other other (earth (earthly) ly) perso person n or instit institut utio ion. n. Austin thought that all independent political societies, by their nature, have a sovereign. Positive law should also be contrasted with "laws by a close analogy" (which (which includes includes positiv positive e moralit morality, y, laws of honor, honor, interna internation tional al law, customary law, and constitutional law) and "laws by remote analogy 12 e.g. laws of physics

11

Austin, John (1832). The Province of Jurisprudence Determined . Ed. W.E. Rumble, 1995. Cambridge: Cambridge University Press.

12

Austin 1995: Lecture I.

Laws are basically commands from the sovereign backed by a threat of a sanction. Sovereign can be a single person or a body of individuals. What about laws that have no sanction? Austin’s positivism, however, falls short of explanation in non-sanctioned laws like Constitutions, International Law, non-sanctioned rules, or law that gives rights. In cases of laws and rules which do not have sanctions, Austin says that even in such cases failure to adhere to the rules does indeed lead to sanctions in the form of sanctions of nullity 13. Law is thus the power to control others. This has been greatly criticized by fellow positivists especially Hart as we shall see later. Hans Kelsen and the ‘grundnorm’ Hans Kelsen came up with what he called the grundnorm. This is a purely a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and "simple" laws are based. He argues that we loaded sovereignty upon ourselves. He writes,

"We can derive from the concept of sovereignty nothing else other than what we have purposely put into its definition." 14 Hans Kelsen retains the imperativalists' monism but abandons their reductivism. On his view, law is characterized by a basic form and basic norm. This argument to some extend marries the natural law theory in that it appreciates that there is a norm on which all the other subsequent laws are derived and based. However, the grundnorm, according to Kelsen, is not from a deity. The origin of the grundnorm is unclear in Kelsen’s view. He argues that to understand these legal concepts correctly is to understand them as peculiarly normative – and not, then, as amenable to expression in factual terms. Hans Kelsen influenced many authors especially in the English speaking world notably H.L.A Hart and Joseph Raz who developed their ideas based on Kelsen’s theory but differed in several respects. H.L.A Hart Hart embraced Austin’s theory of sovereignty but differed on his concept of  command theory where he says that “it fails terribly”  in several aspects. In the book The Concept of Law, Hart outlined several key points most importantly: 13 14

En.wikipedia.org/wiki/lega En.wikipedia.org/wiki/legall positivism Hauptprobleme der Staatsrechtslehre Staatsrechtslehre (Kelsen 1911).

i. Law is not backed by punishment or the threat of it as propounded by Austin. ii. He distinguished between the internal and external points of view of  law and rules. Here, he looked at the sociological and legal aspects of  law more or less the same as Max Webber’s 15 distinction of sociological and legal perspectives of law. iii.

He says that there are rules that govern conduct such as criminal and penal laws and he called this primary laws. Then there are the laws and rules that give the the procedure by which the primary laws are enforce. An example of these is the criminal procedure rules. These he called secondary laws.

iv.

Hart goes further and asserts that there are three secondary rule 16: a. The Rule of recognition, the rule by which any member of society may check to find out what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said  by a ruler. Hart viewed the concept co ncept of rule of recognition as an evolution from Kelsen's ‘Grundnorm’, or "basic norm." b. The Rule of Change, the rule by which existing primary rules might be created, altered or deleted. Unlike the natural n atural law theorists who assert that the natural laws, which may to a large extent be compared to the primary laws, do not change, Hart feels that the laws change over time but there is a rule that guide their change. They do not just change haphazard. c. The Rule of Adjudication, the rule by which the society might determine when a rule has been broken and prescribe a remedy.

Hart rejects Kelsen's transcendentalist approach. Harts work was criticized by Ronald Dworkin in his book Taking book Taking rights seriously and he replied later in a postscript written to the second edition.

Hart wrote Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965). Hart's work on the relationship between law and morality had a significant effect on the law in the UK, helping bring about the decriminalization of homosexuality, among other things. JOSEPH RAZ

Raz was a pupil of Hart and was very fundamental in continuing Hart’s arguments after his death. He replied to some of Hart’s critiques and even at 15 16

The Protestant Ethic and the Spirit of Capitalism Capitalism .H.L.A. Hart The Concept of Law (2nd ed., Oxford, Clarendon Press, 1994) at 250

some point criticized Hart on the argument that the validity of law depends on morality17. Raz distinguishes first-order from second-order reasons for action, calling first-order reasons those which apply to subjects in the absence of  consideration of any social institutions or norms. These include, e.g., reasons of prudence, health or well-being, and some reasons of morality. Secondorder reasons are reasons about reasons, and are characteristically found where there are social institutions and norms. Raz characterizes legal norms as general kinds of institutionally-accepted second-order reasons, devoting the most attention to mandatory norms, first called ‘exclusionary’ and later ‘preemptive’ reasons not to act on first-order reasons. A familiar non-legal example will illustrate this view. Law’s authority is what gives legal norms their legal quality distinguishing them from other second-order norms. Raz’s account of law’s authority is perhaps his most distinctive contribution to legal philosophy, attracting distinguished advocates, and equally distinguished critics. IV. HISTORICAL JURISPRUDENCE

Some of the general beliefs of the historical school of thought include the following; i. ii. iii. iv.

Emphas Emphasis is on the the evol evoluti utionar onary y proce process ss of of law law Concentratio Concentration n on the the origin origin of of the the legal legal system system Law derives its legitimacy and authority authority from standards that have stood the test of time Follows Follows decisio decisions ns of earli earlier er cases. cases.

 The historical school of jurists was founded by Friedrich Karl von Savigny (1779–1861). Its central idea was that a nation's customary law is its truly living law and that the task of jurisprudence is to uncover this law and describe in historical studies its social provenience. As in other schools of  thought, acceptance of this approach did not necessarily mean agreement on its theoretical or practical consequences. Historical jurisprudence identified law with the consciousness, or spirit, of a specific people. Law is "found" by the jurist and not "made" by the state or its organs. Law is a national or folk and not a political phenomenon; it is a social and not an individual production; like language, it cannot be abstracted from a particular people and its genius; it is a historical necessity

17

Joseph Raz The Authority of Law: Essays on Law and Morality (Oxford, Clarendon Press, 1979) at 47-50

and not an expression of will or reason, and therefore it cannot be transplanted 18. Henry Maine Modern historical jurisprudence in England was born with the publication in London of  Maine's Ancient Law in 1861, the year of Savigny’s death. Until then historical research in law had been neglected, but from that time on, the field was was assiduously cultivated. In reaction against natural law and under the influence of Thomas Hobbes, the tendency in England had been to regard law as the command of the state, and the task of the jurist was conceived as a concern with the analysis of positive law without regard to historical or ethical considerations.

Maine shifted away from this traditional belief and attempted to apply Historical method to Jurisprudence 19 . Maine rejected the natural law, rationalistic, and a priority approaches to the nature of law. In his book, Early History of Institutions (London, 1875), he observed that the law of a people as comprised of opinions, beliefs, and superstitions produced by institutions and human nature as they affected one another. Indeed, English common law seemed better to exemplify Savigny's views than did the law of Germany, which drew heavily on Roman law. Maine, however, departed radically from Savigny's monistic approach to law and its sources. He saw in law more than a people's customs; he observed and took into account the creative and reforming work of Parliament, and so he was led to recognize legislation as an instrument of legal growth. And he found that equity and legal fictions played creative roles in the common law. Maine differed from Savigny also in believing that custom might historically follow an act of judgment, so that the jurist could be seen to have had a creative role in making the law, even though he claimed only to have found it. Maine also noted the part played in early societies by the codification of  customary law. In revealing the ideals operative in a society at a particular stage of its development and in relating them to social conditions, Maine stimulated the development of the use of the sociological method in  jurisprudence. It thus became apparent that just as law cannot be divorced from history, so, too, it cannot be divorced from philosophy and sociology. Maine’s work had liberalizing effect on jurisprudence unlike Savigny who was very conservative. Other English scholars associated in varying degree with the historical school of jurisprudence are James Bryce (1838–1922), Frederic 18 19

www.bookrags.com/research/histori www.bookrags.com/research/historical-school-of-juris cal-school-of-jurisprudence-eoph prudence-eoph Ancient law, 1861

W. Maitland (1850–1906), Frederick Pollock (1845–1937), and Paul Vinogradoff (1854–1925). Perhaps the greatness of historical jurisprudence lay in the fact that it provided its own seed of dissolution; for once it is admitted that law is historically conditioned, it is as impossible to limit the conception of law to a Volksgeist [ as as to the commands of the sovereign; all forms of social control and all sources of law emerge as subjects for legitimate consideration and study. Historical Historical jurisprudence as a convergent point of naturalists and positivists In these respects he Positivists and naturalists tend to converge in the area of historical jurisprudence. Historical jurisprudence is marked by judges who consider history, h istory, tradition, and custom when deciding a legal dispute. Strictly speaking, history does not completely fall within the definition of either positivism or  natural law. Historical events, like the Civil War, are not legislative enactments, although they may be the product of governmental gov ernmental policy. Moreover, historical events embody eternal  principles of morality, although they may be the product of clashing moral views. Yet, historical events shape both morality and law. Thus, many positivists and naturalists find a place for  historical jurisprudence in their legal philosophy. For example, Justice Holmes was considered a positivist to the extent that he believed that courts cou rts should defer to legislative judgment unless a particular statute clearly violates an express  provision of the Constitution. But he qualified this stance when a given statute "infringe[s] on fundamental principles as they have been understood by the traditions of our people and our law" (LOCHNER  V.  NEW YORK , 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]). In such instances, Holmes felt, courts were justified in striking down a particular written law. considered an adherent of sociological jurisprudence by some and a realist  by others, was another Supreme Court justice who incorporated history into his legal philosophy. When evaluating the merits of a claim brought under the DUE PROCESS Clauses of the Fifth and Fourteenth Amendments, Cardozo denied relief to claims that were not "implicit in the concept of ordered liberty" and the "principle[s] of justice [that are] so rooted in the traditions and conscience of our people as to be ranked as fundamental20" BENJAMIN N. CARDOZO,

IV. SOCIOLOGICAL JURISPRUDENCE

Sociological jurisprudence is an approach to legal adjudication that views law as a means to promote social welfare, requiring legislators and judges who 20

 Palko v. Connecticut , 302 U.S. 319, 58 S. Ct. 149, 82 L

will make law in light of society’s constantly evolving needs and interests. As the society evolves, different challenges emerge and as such, the law should be used as a tool to address the challenges for the well being of the society. Sociological jurisprudence has its roots in Europe but was also described by Roscoe Pound in 1906 in his article “The Scope and Purpose of Sociological  Jurisprudence,” 21 Another important scholar associated with sociological  jurisprudence is Cardozo who elaborated this new jurisprudence in his Storrs Lectures at Yale 22. Pound’s and Cardozo’s development of sociological jurisprudence was part of  the general movement in American social thought that Morton White described in The Revolt against Formalism (1949). This was a departure from the tendency of formalizing everything and setting rules that lead people like robots. Legal formalism taught that law was an apolitical science modeled on the physical and mathematical sciences. Formalist jurists believed that judges and legal scholars could empirically study legal cases, induce the abstract legal principles that governed how appellate courts decided them, and deductively apply these principles in all subsequent controversies. For formalists, law was geometrically shaped. In contrast, sociological jurisprudence was the legal expression of  Progressive reform in American politics. America had changed in terms of  industry, commerce, politics and other other fields. The progressive reformist therefore arose to change the thinking of the people. Sociological  jurisprudence sought moderate reform that would make law more responsive to the needs of consumers and workers. Sociological jurists used pragmatism as a basis to criticize legal formalism as a “mechanical” jurisprudence that incorrectly preferred law’s logical form to its ability to promote social well-being. Pragmatism is best exemplified by  Justice Holmes's statement that courts "decide cases first, and determine the principle afterwards. 23" Sociological jurists thought of law not as an end in itself, but as a “means to an end,” to fulfill human needs and values. As pragmatists, sociological 21 22 23

Harvard Law Review, 1911–12. The Nature of the Judicial Process (1921). law.jrank.org/pages/7914/Jurisprud law.jrank.org/pages/7914/Jurisprudence-Realism ence-Realism.html .html

 jurists conceived law as an evolving set of principles, whose application should always be responsive to the ever-changing context in which they were applied. Sociological jurists approached law as the conscious pursuit of  social welfare, as social engineering not doctrinal geometry. Sociological jurisprudence also was the legal expression of the pragmatic turn in American philosophy. In the early twentieth century, the pragmatists William James and John Dewey believed that ideas were “right” or “true” if they functioned well when put into practice. Sociological jurisprudence involved a three-part program: 1. Appreciating that the purpose of law was to satisfy the needs of the

community and its desires, there was the study of the social facts of  the society. 2.  The second part involved studying and analyzing the actual social

effects of legal rules and laws. The sociological jurists believed that law legal rules should be considered from the point of view of how they functioned. Law must influence social life in a positive way. 3.  Third, sociological jurists insisted that every legal case required

individualized consideration to take account of the diverse circumstances of each dispute. Law should be premised not on strictly drawn rules but on ambiguous standards, such as “good faith” and “reasonableness.” These standards made prediction of the outcome of  the cases less certain, but fairer. Decline of the sociological jurisprudence When, during the Great Depression, legal formalism was finally displaced as America’s dominant approach to law, sociological jurisprudence was itself under attack by the two newer  schools: legal realism and legal process. Legal realists criticized sociological jurisprudence for  its restraint in appraising legal formalism: society changed more rapidly and was more heterogeneous. Consequently, legal doctrine always lagged behind social need and could not satisfy the desires of society as a whole. Legal realists also thought that abstract legal doctrine hardly ever determined legal disputes. It was naive to believe, as the sociological jurists did, that if legal doctrine were properly updated and clearly stated, judges could apply it faithfully in subsequent controversies.

Legal process jurists believed that the sociological jurists correctly viewed law as involving debatable policy choices. Accordingly, judges should generally defer to legislative, administrative, and executive policymakers. Judges should rarely and circumspectly make law. In general, they should intervene only to establish correct procedures for legislative, administrative or executive lawmaking.

V. LEGAL REALISM

 The term legal realism was coined by  Jerome Frank , a US judge. The essential tenet of legal realism is that all law is made by human beings and is therefore subject to human foibles, frailties and imperfections. It comprises of a family of theories of the nature of law developed in America and the Scandinavia.  No single set of beliefs was shared by all legal realists, but many of the realists shared one or  more of the following ideas: i.

Belief Belief in the indetermina indeterminacy cy of law. law. Many of the legal realis realists ts believed believed that that the law law in the the  books (statutes, cases, etc.) did not determine the results of legal disputes. It is the attitude, mood or generally the state of those who enforce the law that determines de termines the 24 outcome of legal disputes. Jerome Frank  emphasized the psychological

foundation of judicial decision making, arguing that a judge's decision may be influenced by mundane things like what he or she ate for breakfast. Frank believed that it is deceptive for the legal profession to perpetuate the myth that the law is clearly knowable or precisely predictable, when it is so plastic and mutable. ii. Belief Belief in the importance importance of interdis interdiscipli ciplinary nary approaches approaches to law. law. Many of the realis realists ts were interested in sociological and anthropological approaches to the study of law25. Law is looked at in different disciplines and not just a legal approach. iii. Belief in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests. If there is an issue that has to be addressed in the society, it can be done through legislation of the relevant laws. Legal realists advance two general claims although stated in different terms and words; 1) Law is indeterminate and judges, accordingly, must and do often draw on extralegal considerations to resolve the disputes before them. 2) The best answer to the question "What is (the) law?" is "Whatever judges or o ther relevant officials do". The heyday of the legal realist movement came in the 1920s through the early 1940s. Following the end of World War II, as its leading figures retired or became less active, legal realism gradually started to fade away. 24

en.wikipedia.org/wiki/Legal_realism

25

Karl Llewellyn, The Cheyenne Way

Legal realism operates on a premise that is adhered to by the common mwananchi who often believe that what the judges say and hold is the law. Even many individuals who have legal training hold that "the law," whatever that may be, is concerned with and is intrinsically tied to the real-world outcomes of particular cases. Accepting this premise moves jurisprudence or the study of law in the abstract, away from hypothetical predictions and closer to empirical reflections of fact. In most cases, however, they are unconscious of their belief in legal realism. It can then be justifiably argued that legal realism is the most subscribed to legal theory. Judges must resolve disputes by balancing the interests of the parties and ultimately drawing draw ing an arbitrary line on one side of the dispute.  This line is typically drawn in accordance with the political, economic, and psychological proclivities of the judge 26. Concerning the second holding above, realists believed that because judges decide cases based on their political affiliation, the law tends always to lag behind social change. For example, the realists of the late nineteenth century saw a dramatic rise in the disparity between the wealth and working conditions of rich and poor U.S. citizens following the industrial revolution. To protect society's poorest and weakest members, many states began drafting legislation that established a minimum wage and maximum working hours for various classes of exploited workers. This legislation was part of the U.S. Progressive movement, which reflected many of the realists' concerns.

Comparing with the development of the common law, especially through precedents, one can argue that it was developed from such background. What the law Lords ruled in cases became the law, however unjust the decisions may be. This is what prompted the development the law of Equity. Some of the proponents of legal realism are; Oliver Wendell Holmes. He was an American judge who to a large extent influenced a change in the thinking about law. In one of his writings, The Common law, he asserts that ‘‘the life of the law has not been logic; it has been experience.'

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law.jrank.org/pages/7914/Jurisprud law.jrank.org/pages/7914/Jurisprudence-Realism ence-Realism.html .html

In a dissenting opinion in the case of  Lochner v. New York (1905)27, Holmes declared that the law should develop along with society and that the 14th Amendment did not deny states a right to experiment with social legislation. He also argued for judicial restraint, asserting that the Court should not interpret the Constitution according to its own social philosophy. According to Holmes, 'men make their own laws;... these laws do not flow from some mysterious omnipresence in the sky, and ... judges are not independent mouthpieces of the infinite 28., Holmes defined the law in accordance with his pragmatic judicial philosophy. Rather than a set of abstract, rational, mathematical, or in any way unworldly set of principals, Holmes said that “ the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”. Accordingly, Holmes thought that only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law will be in a position to fulfill his functions properly. As a justice of US Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in the  judicial process. According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics. He writes: "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. As a moral skeptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of 'a bad man' who cares only from material consequences of the courts' decisions, and not from the point of view of good man, who find his reasons for conduct "in the vaguer sanctions of his conscience. This means that the law is what the courts will decide since law is not a pure science or mathematics with specific formulae of arriving at a conclusion. It should be noted that Holmes was also concerned with the moral question of law. He observed that the law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men.

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198 US 45,76 (1905)  Justice Holmes, Natural Law and the Supreme Court , (1960) p.49.

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 Jeffrey Rosen, a professor at the George Washington University, has described Holmes as a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold 29. Roscoe Pound30. Another scholar associated with American realism is Roscoe Pound. He was the dean of Harvard law school. He views American courts as relying on sociological theories,  political ends, or other objectives, and in so doing, divorcing the practice of o f law from the rule of  law and the rule of law from the enduring ideal of law itself. He elaborates this in his book ‘The ideal element of Law’.

law.’  He Louis Brandeis. He said that Roscoe ‘had ‘had done nothing but adding a chapter to our law.’ He observed that everywhere, the law has a tendency to lag behind the facts of life. Therefore he  planned chip away at the assumption that the principles of law should be unchanging" and "break  the traditional hold on legal thinking and work to harmonize the law with the needs of the community31.

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Jeffrey Rosen, "Brandeis's Seat, Kagan's Responsibility". Responsibility". New York Times, July 2, 2010. The ideal element of Law, The library online oll.libertyfund.org/ oll.libertyfund.org/ Piott, Steven L.  American Reformers, 1870-1920 , Rowman & Littlefield (2006)