JURISPRUDENCE 2.9 THE REALIST SCHOOL
Rebelled against the positivist idea that law is a body of rules. They posit instead that law is what the court would do… as legislation is merely a skeletal framework and the courts provide the flesh. Dewey noted that Americans are interested in solving problems rather than thinking on a high level of abstraction. Eugo Helblack said that “whatever we in the supreme court says law is is the law. That law is the prediction of what the court would do. E.g. a catholic judge may hesitate in decreeing a divorce. That the atmosphere is more important than your case. As the judge’s discretion is affected by his disposition. Justice Holmes said that the life of the law has not been logic but experience. “in the path of law”
Gray in Th Nature and Sources of Law page 84 notes that law is what judges decide.
J.N Frank in Law and Modern Mind said that certainty cannot be achieved through rules… law cannot be divorced from judicial decisions. Law is “actual” where it has been pronounced upon and it is “probable” when it has nto been pronounced upon.
Dias notes that the realists are far too obsessed with what occurs in courts.
That if judgments were easy to forecast, then only maniacs would go to courtWhat about ICT. This rule is only strengthened by separation of powers and judicial independence. What about subsequent repeal by statute? What about laws requiring literal interpretation. I believe it is in hard knott cases. what about cases departed from.
Eugo Helblack “the constitution of the united states is what we in the judiciary pronounce.
The Realists are divided into:
- Fact Skeptics: that there is no fact but propositions. What about move to locus in quo and establishment of fact?
- Rule Skeptics: that there is no rule… rules mean nothing to judges… they have wide discretion. Felix Frankfurter. law is the prophesies of what the courts would do.
Rucling V California 342 US 165 1951. Robert Jackson.
Criticised for over0emphasising on one aspect. The court when there is the legislatureand so on.
This rule would be good in difficult cases. also relevant in cases which naturally divide people. E.g. religion and morals. E.g. abortion, Islamic banking, ethnic lines. In Agunanee V NTC, we see that the Northern court ruled in one way while the southern courts ruled in another way. This means their ideologies were differing. In such a situation, the realist argument may be successful. But in cases where the law is clear, the hands of the judges may be tied-See Awolowo V Shagari, Buhari V Yar’adua.
There are certain rules that are obeyed notwithstanding that they have not been pronounced upon by courts. E.g. custom, certain provisions of statutes, etc. does it mean they are not laws since the judiciary has not pronounced upon them?
The courts have given certain per incuriam judgments and later repeal them. As was seen in M.V Panorama Bay V Olam Nig Plc where the court overruled the previous decision in Onward Entreprises Ltd V MV Matrix and Ors Ltd for ignoring the provisions of Section 20 of the Admiralty Jurisdiction Act. Why would the court’s be overturned for not following an enactment? Why are certain judgments regarded as wrong or per-incuriam?
The school failed to recognise that it was the legislature that created the judiciary in the first place. They are not looking at the bigger picture.
In some cases, the hands of judges are tied.
This position may be strengthened by Staire Decisis but in some cases judges may decide not to follow by distinguishing the present case from other precedents. They may even overrule certain earlier decisions.
Judges usually try to put aside personal considerations-Fias.
A great deal of transactions occur outside the court and few of them may never even get to court-Dias
Advan: gives us an insight into the judicial process.
Actual decisions have been overruled. Does it mean that they were not law?
What about precedents that are binding on lower courts or the judge can use his discretion.
Although the acceptance of a fact or evidence depends on how you present it to the court. However mechanical and ICT aids can replace the warmth of human justice system-dias. Computers don’t send anybody message. They are being used to detect the commission of crimes and so on
What about contempt of the court?
The realist view is helpful in systems that allows judicial independence and discretion. Also they contribute to the work of sociologists, gave a penetrating insight into the judicial process. Karl Llelwellyn noted that law is in a state of flux and the society changes faster than law. Thus law-jobs is to do something about these dispute… therefore, the machineries (like courts, police, lawyers and so on) job is to resolve these competing claims
Advantages: theory works in USA where courts have wide discretion to invalidate unjust laws. Where the judiciary is being used to shape the law.
Where judges also have political affiliation, connection and influence.
Imported metaphysics into the realist school. They tried to answer the question of validity of laws by offering psychological explanations. That law is tu-tu. Prof Alfred Ross that law is nothing but what lawyers use to put food on their table. Hagerstrum, denies the existence of objective values. That there are not such things as goodness or badness rather emotional attitudes of approval or disapproval. Karl Croner. That law is not real. E.g. mens rea does not exist. Lawyers just use it to put food on their table. Olivercrona noted that law has a binding force but he does not knowwhether the binding force comes from the will of the state or will of the legislators or citizens. Therefore, he said that the feeling of being bound by the law is just a mirage. Alf Ross adimited the normative character of the law. Lundstedt: that nothing is valid which cannot be proved as fact
They can be referred to as neo-marxian. Roberto Ungar, Jonkan Kenedy
Realist criticised that law existed before the courts did. It is the law that even creates the courts.
What the courts pronounce cannot be known for sure until judgment is read.
Ignore the legislature who by subsequent legislation can override court’s decision.