The realists propose that law is not really rules, but
judicial behavior predicted by legal propositions. Realists assert that law is
judge-made. Realism is therefore not a study of rules, but of the rule maker.
It has its origins in American and Scandinavian Countries
towards the end of the 19th century. Pragmatism was the incentive for the
theorists in this school of law. To the realists law is not rules per se but
judicial behavior that laws predict. Realists do not identify with legislators
because according to them, what judges give is what the law is.
The cornerstone of their study is in the judicial process as
an interpretation of the formal rules. They can be said to be pragmatic
positivists given that their main concern is that law should be distinguished
from morals and the jurist is concerned with the law as it is and not law as it
ought to be. Realism has some overlaps with sociology, for instance, they share
an interest in the effect of social conditions of law as well as the effect of
law on society generally.
He is considered the first jurist to attempt to give a
pragmatic approach to positivism. He further is of the view that the only
source of law is a judicial decision enforced by the state. Judges decided
cases on facts and then wrote opinions of their rationale afterwards.
According to Holmes, the purpose of law is deterrence of
undesirable social consequences, i.e. law makes it clear that if one does
certain things he will be subjected to disagreeable consequences by way of
imprisonment or compulsory payment.[1]
Holmes advocated for an approach to law in which the law was
to be viewed from the point of a bad man. The bad man cares only for the
material consequences of breach of law. Such knowledge enables him to predict
judicial outcomes, as opposed to a good man who finds reasons for conduct
whether inside or outside the law in a vague sanction of conscience.
He also argues that law and morals should be thought about
separately. He is of the view that law is a witness and eternal deposit of our
moral life and that the practice of law tends to make good citizens. However,
he recommends that moral language in law should be replaced with a non-moral
one.
Holmes argues that law is not logical, but is founded on
experience. As he wrote in one of his dissents in Abrams vs. United
States[2] he regarded
the United States Constitution as ‘an experiment, as all life is an experiment.’
Holmes suggests that history and tradition override
rationality of law. He felt that the necessities over time, intuitions of
public policy, the moral and political theories have a good deal in determining
the rules by which men should be governed. The law embodies a story of a
nation’s development and cannot be dealt with as if it contained only the
axioms and corollaries of a book of mathematics.[3]
The influence of Justice Holmes became apparent on the
American Realists of later days, whose theory of law rests mainly on the
judicial process.
He was a Supreme Court judge from 1932 to 1938 he subscribed
to the integrative jurisprudence which emphasized on the importance of studying
the aims and procedures of law in relation to social condition just like O. W.
Holmes.
Justice Cardozo, like other realists, has been considered to
have given pragmatism to otherwise determinate rules of law such that the idea
of law is considered in terms of abstract rules but rather as involving
extraneous influences in the philosophical and ideological approach by the
judge.
Cardozo stressed on the necessity of judicial alertness to
social realities. He introduces his sociological idea to his realist approach
of the law and concluded that the consideration of social policies and
realities should be central to the court of judicial adjudication.
He advanced 3 approaches for the judicial process to follow
for it to reflect the necessity for ordering of social life and its changing
needs.The 3 approaches includes:
1. Philosophy method that
allows the judge to use aspect of reasoning as presented in analogy;
2. Evolution that allowed the
judge to recognize the importance of development in the work he takes part in
and the rules he is expected to apply;
3. Tradition that enables the
judge to draw from the idea of justice, morality and social welfare in the
process of reaching a judicial decision.
In addition to this methods he argued that the judge needs
to take into consideration in coming to decisions the pattern of utility and
morals which he may perceive as being important.
Cardozo added that the court process should not only be
reflective of the nature of the society but also the very nature of the judge.
In this regard, judges’ sympathies,conscious and unconscious must be taken into
consideration in the analysis of the court process. To overcome this issue, he
calls for education for judges to improve judicial temperament and maintain the
desired neutrality of the court.
Cardozo stresses the role of precedence in maintaining
stability of the law, for society to view law as being based on principle.
Precedence should be taken in consideration in analyzing the judicial process.
He further points out that any analysis which ignores the significance of
precedent is flawed ab initio[4].
By balancing between adherence to precedent and this creative
function of judges, Cardozo argues that that would ensure that the judicial
process would consequently be seen as respecting the need for stability on the
one part; and the need to change, modify and reject certain propositions in the
interests of the growth of the law on the other part.
Justice Jerome Frank argued that judges do make and change
lawthus rejecting the conventional view of law. The conventional theory holds
that the decision is influenced by the rule and facts; whereas the realist
school proposes that it is the stimuli affecting the judge, together with the
personality of the judge, which influences the decision.
The conventional view suggests that the law is a complete
body of rules which is immemorial and unchangeable. Legislatures are expressly
empowered to change the law but the judges are not to make or change the law
but to apply it.[5]
Frank proposes that knowledge of legal rules has no place in
predicting the decisions of a particular judge.
He is of the view that the idea resolving legal rules of necessity
of stability of law as a basic legal myth or illusion: that law can be entirely
predictable. Behind this illusion is the childish desire to have a fixed,
father-controlled universe, free of chance and error due to human fallibility.
Legal predictability is plainly impossible.
His advice to legal practitioners was that they should
outgrow those longings for a father controlled world. The application of legal
rules necessitates a pragmatic approach, which in most cases the discretion of
the judge is paramount.
Frank pointed out that there are often innumerable errors
penetrating facts of a case, due to biased and perjured witnesses, falsified
documents, stupidity or crookedness of lawyers or judges and a trial judge
often finds himself in a very delicate predicament. As per his view, the judge
must exercise his discretion as to the facts. It is therefore a great role of
the judge in applying the legal rules to arrive at a correct decision.
In later years, Frank changed his view about the nature of
legal rules. He recognized that legal rules were general guide points for
making decisions since they contained policies and moral ideals. The standard
pictureis that judges do consult a set of rules, the rules that H. L. A. Hart
would say are the ones recognized as legally valid by a valid rule of
recognition. Having consulted these valid rules, judges then decide the issue
before them in the way indicated by the legal rules.
Legal realism is basically premised on the role precedent
especially in common law systems as the study of the principles and doctrines
in law as well as judicial behavior. This was clearly stated in the case of Mtikila
v A.G.[6].
This is a case in which Mtikila had several cases before a
particular judge, who then was transferred to another place. The judge usually
gave judgments in his favor. When he was transferred, Mtikila filed a petition
in the place where the judge had been transferred, and he was able to get
judgments in his favor.
Llewellyn argued that law is little more than putty in the
hands of a judge who is able to shape the outcome of a case based on personal
biases. Focal point of legal research should be shifted from the study of rules
to observance of real behavior of law officials.
He came up with principal features of realist approach to
law which are:
a) There should be a temporary
divorce of ‘is’ and ‘ought’ for purposes of the study of law.
b) That the ideas of law and justice
are notto be explained altogether, but the notion of justice should be put on
one side while investigating what the law is and how it works.
c) That legal rules and
concepts are insufficient in describing what the courts do and that many other
influences play a decisive part, thus to define law solely in terms of legal
rules is absurd.
d) Study of law must be done in
narrower categories that has been the case in the past. Different results can
be reached in the framework of the same rules/ concepts to different branches
of law i.e. realists feel that the point of distortion/ confusion by viewing
law in terms of legal rules is that the rules cover posts of dissimilar
situations, where in practice utterly different considerations applied.
e) Any point of law must be
evaluated in terms of its effects.
Karl Llewellyn is noted for identifying two concepts of
legal realism: institutionalism and craftsmanship in the law, and the scheme of
preferability/reckonability.
Institutions do law jobs and performance of jobs is one
aspect of the task law undertakes in government of society. While craftsmanship
in law included not only the various skills of the lawyer but also tradition,
ethics training and the manner in which legal craftsmen use their skills and
determine their style.
Llewellyn laid down three laws in describing the scheme of
reckonability which are as follows:
i)
Law of compaitibility where the application of an appropriate rules of law is
comparable with sense and reason and this increase reckonable of decisions
ii)
Law of incompatibility, where the first instance does not exist (there is no
appropriate rule compatible with sense and reason) and therefore the ground of
the decision lies outside the rule of law, here reckonability of the decision
is less.
iii)
Law of singing reason, where there is a rule with a right situation sense and a
clear scope and therefore gives a maximum reckonability of decisions.
Karl Llewellyn is therefore distinguished from early legal
realists by his techniques in studying legal process, and the scheme of
reckonability of the judicial decisions.
Arnold Thurman devoted himself to social psychological
analysis of courts as an institution. Law must involve a psychological analysis
of judicial institution. He thus argued that in its actual practice, law
consists of large number emotionally colored and contradictory symbols and
ideals.
These are in fact jurisprudence philosophers who approach to
the idea of law may not be approximate to that of the American realist but they
nonetheless start from a similar premise of the role of the judge in
determination of legal rules.
Most significantly they devoted emphasis to discussion of
somewhat abstract questions pertaining to the validity of legal norms in terms
of the nature of rights and duties.
The forerunner is Hägerström, of the Scandinavian realist
movement. He wrote the Inquiries into the Nature of Law and Morals that was
translated into English by Prof Karl Olivercrona. The major thrust of
Hägerström’s views may be stated as follows:
i)
There is no goodness or badness in the world of law. These words simply
represent emotional attitudes of approval and disapproval towards certain facts
and situations.
ii)
The notion of law in the abstract rules bears no meaning, and bears no
empirical significance, unless and until they have been infringed and become
the subject matter of a judicial proceeding. Even so, the litigant’s claim to
ownership is unreal and speculative until he has proved his title.
His view of law is that it is not founded on justice but
rather based on social needs and pressures, and that any idea or feeling of
justice are guided or directed by laws as enforced. He observed the view that,
because under a certain rule, a legal duty is imposed,which would only support
a normative or metaphysical link that no amount of observation can establish as
a physical fact.
“To say that a person is under a duty is only a feeling or
sentiment that he ought to conduct himself in a certain manner (consequently
something quite objective). This subjective element the writers have been
forced to turn into the exact opposite, which is an objective duty. Similarly,
a right is a term for the favourable position enjoyed by a person in
consequence of the functioning legal machinery.”
Lundstedt extended his conceptual analysis to traditional
concepts such as, ‘wrongfulness’, ’guilt’, ‘liability’;arguing that su4ch
concepts are only operative in the subjective conscience and that the only
realistic significance to be assigned to such terms was in connection with the
corrective machinery of the state.
A. Legal realism largely influences the
legal field because of the approach it gives to legal issues. Critiques however
argue that realism does not merit to be called a school of thought in its own
right. This is mainly because realism seems to be an amalgam of positivist and
sociologist view of law.
B. Realism overlooked the importance
of rules and legal practices/ principles as it treats law as an assemblage of
unconnected court decisions. This means that there is no certainty in the law
as it is based on subjective life experiences and fantasies of judges. This is
an overestimate on the role of judges; whose main function is to interpret the
law in as much as they may contribute to the law-making process in this
pursuit.
C. Also, there are a number of legal
rules that are not subjected to adjudication before court and yet they are
regarded as law. A lot of laws, for example administrative law enacted by the
authorized bodies do not necessarily come before the court. This indicates that
law is not an act of judges. It would be therefore erroneous to reason that the
law only develops or evolves based on the extent it is practiced in court and
even the court decisions.
D. Realists undermine the authority of
precedents. They argue that decisions in court are made hastily; based majorly
on the evidence before them. They rarely take time to consider other avenues
like public opinions, surveys and statistics. The realist argument however
ignores the fact that judges refer to previously decided cases and each case is
decided uniquely depending on the facts and the issues raised.
E. This school overemphasizes on the
influence of the human nature in judicial decisions. They argue that the
decisions made by the judges are greatly influenced by their personal experiences
or preferences. However, this is incorrect because the decisions made in court
are justified by the law. The judges have to give the legal reasoning behind
every decision they make regardless of their personal views. These views are
only applicable only to the extent that is reasonable and acceptable within the
parameters of the law.
F. The realist school is
confined to the local judicial setting. Unlike other schools, the realists have
no applications on other parts of the world. They also do not consider laws
made on international forums like international laws.
G. Legal realists idea of law is therefore
criticized because of their view that law is based on the decision of a judge,
when in fact the judicial process adheres to guidelines set in legal rules. As
Dais put it, “clay is clay, before, during and after it has been molded”:
meaning that law is therefore the legal rules, and applicable even before the
judge decides it should be applicable.
In conclusion, Realists’ view that law is a product of
judicial processes is greatly criticized. According to realists, law is dependent
on the judicial process. In performing their judicial obligations, Judges apply
precedent and statutes which are already legal rules and thus law exists even before
the judge decides to regard it as law. The judicial process follows guidelines
set out in legal rules and therefore law cannot be regarded as judge made but
rather the legal rules that are in place.
The Legal Realist focuses more on the importance of the
judicial process and not the abstract laws formulated by the legislators. They
argue that the courts are central to the realistic approach of what law really
is. Abstract law is not really law unless a dispute has arose on it, matter
brought to court and a judge made an interpretation and ruling on the same.
Article 159(1) of the constitution of Kenya states that
Judicial Authority is derived from the people and vests in and shall be
exercised by the courts and tribunals established under the constitution. The
fact that authority has been exclusively vested in judicial presiding officers
and nobody else, not even the law making legislature, underscores the realists’
assertion that law is not really rules and directives but judicial behavior
which is determined by legal propositions.
Another avenue where the realist school of thought suffices
is Article 159(2) (d) of the Constitution. In exercising judicial authority,
the courts are to ensure justice is duly administered without undue regard to
procedural technicalities[7]. This poses
the fact that a judge can override the existing legal provisions stipulating
procedure with a legitimate aim of ensuring justice is achieved. The judge can
overlook procedural stipulations in the various statutes[8] to ensure that
a just end is achieved.
Article 22 (3)(d) of the Constitution of Kenya, 2010 grants
the office of the Chief Justice the authority to make rules providing for court
proceedings in the enforcement of the Bill of Rights to satisfy the
criteria that the court while observing the rule of natural justice shall
not be unreasonably be restricted by procedural technicalities. This
supports the realists’ idea that the courts are essentially the determiners of
what law is.
Further, Article 22(4) provides that absence of rules of
procedure does not limit the right of any person to commence court proceedings
for enforcement of the Bill Of Rights to have the matter heard and determined
by a court.
The realists emphasize on the autonomous power of the judge
to determine what law is. This therefore means that it is the judge’s discretion
to decide what law is, in his conscience. Article 160(5) of the ConstitutionandSection
6 of the Judicature Act provide categorically that a judge is not liable in an
action or suit in respect of anything done or omitted in good faith in the
lawful performance of a judicial function. This elevates the role of a judge to
a law maker who is answerable to no one.
Extreme realists strongly advocate for fact that no rule can
exist as law independently of court. This is best demonstrated by the setting
of the Rules Committee[9] to formulate
rules for conduct of civil proceedings in the High Court and lower courts. This
makes an inevitable inference that the Civil Procedure Act cannot solely
address the issue of civil practice. It needs the input of the judges who have
to study it and formulate the Civil Procedure Rules to fully operationalize it
hence satisfying the realists assertion that law cannot exists as law independent
of courts.
Under article 1 (3) (c) of the Constitution sovereign power
vests in the people of Kenya and delegated to the judiciary which therefore
gives credence to the realists sociological aspect.
Article 58 (5) of the Constitution grants the Supreme Court
power to determine the declaration of a state of emergency and any law made
pursuant to the declaration. This backs the realists’ assertion that law should
have a judicial input to become law.
Article 140 of the Constitution grants the Supreme Court the
exclusive mandate of determining the validity of a presidential election and
its decision shall be final. This in essence connotes the validity of laws
governing a presidential election is subject to interpretation by the Supreme
Court.
Under article 163 the Supreme Court has been granted powers
to give an advisory opinion to any state organ or county government with
respect to any matter concerning the county government. In Supreme Court
Advisory opinion concerning the roles of senate and national assembly; the
court ruled in the dispute between national assembly and senate concerning the
county revenue allocation bill, the two houses shall form a mediation
committee.
Under 165 (3) (d) of the Constitution, the high court
has jurisdiction to determine any question whether any law or act is
inconsistent with the constitution; the between county laws and national laws
under section 191 or any matter on constitutional powers in respect of county
governments and levels of government. This in essence means validity of nay law
is subject to interpretation of the high court.
Section 3 of the Judicature Act
provides that the jurisdiction of the High Court, the Court of Appeal and of
all subordinate courts shall be exercised in conformity with (a) the
Constitution; (b) subject thereto, ….. the substance of the common law, the
doctrines of equity and the statutes of general application in force in England
on the 12th August,1897, and the procedure and practice observed in courts of
justice in England at that date.Benjamin Cardozo, an American realist stresses
the importance of precedents as a source of law in the judicial process but
warns of the strict adherence due to the dynamic nature of the society and what
is considered right or wrong may change over time.
When a superior court[10]
renders a decision upholding a just end at the expense of procedural
technicality, then drawing from the precedent principle in common law, lower
courts are bound by that decision hence it attains the force of law[11].
This was evident in Rep. vs. Wilfred Onyango Nganyi & Ano.[12]
, where the judge termed the lodging of an appeal with uncertified copies of
proceedings from a lower court not a fatal issue not going to the root of the
appeal. Since this was a ruling of the high court, the lower courts are duly
bound to adhere to it hence it is judge-made law.
Conclusion
According to realists, the court process is a reflection of
the very nature of the judge. The conscience, character and morality of the
judge explains different decisions by different judges on the same matter. This
further explains why some decisions are set aside or overruled on appeal. The
above supports their affirmation on the need to shift the legal research from
study of rules to observance of the real behavior of judicial officers.
Despite criticisms of the viability of the realist school of
thought and whether it should even be a school of law or not, their concept and
realistic nature of law has been adeptly reflected in today’s Kenyan
jurisprudence.
List of statutes
1. Constitution of Kenya, 2010
2. Civil Procedure Act Cap. 21
Laws of Kenya.
3. Criminal Procedure Code Cap
75 Laws of Kenya.
4. Evidence Act Cap. 80 Laws
of Kenya.
5. Appellate Jurisdiction Act
Cap 9 Laws of Kenya.
6. Judicature Act Cap 8 Laws
of Kenya.
List of cases
1. Abrams vs. United States of
America, 250, U.S. 616 (1919)
2. Christopher Mtikila v A.G.,
Civil Case No. 5 of 1993.High court of Tanzania (unreported).
3. Republic vs. Wilfred
Onyango Nganyi & Another, Crim. App. No. 96 of 2005
BIBLIOGRAPHY
1. Frank, J. (1970). Law and
the Modern Mind. New Brunswick, N.J.: Transaction Publishers.
2. Hägerström, A. (1953). Inquiries
into the Nature of Law and Morals. Stockholm: Almqvist & Wiksell.
3. Harris, J. (2004). Legal
Philosophies. Oxford: Oxford University Press.
4. Holmes, O. W. (1881). The
Common Law. Boston Little: Brown & Company.
5. Paul, O. J. (2006). Key
Issues in Jurisprudence: An In-Depth Discourse on Jurisprudence Problems.
Kampala: LawAfrica.
[1] Oliver Wendell
Holmes, Jr. (1881). The Common Law: Boston Little, Brown and Company.
[2]Abrams vs. United
States of America, 250, U.S. 616 (1919)
[3] Holmes, Oliver
Wendell, Jr. (1881) The Common Law: (n 1 above).
[4] Justice Cardozo
however warns against strict adherence to precedence, noting that ‘the rules of
law which grew up in a remote generation may serve another generation badly.’
[5]The conventional view
suggests that the law is a complete body of rules which is immemorial and
unchangeable. Legislatures have express power to change the law. Judges are
limited to applying the law, and are not to make or change the law. Thus the
law, ready-made, pre-exists the judicial decisions. Judges’ function is purely
passive: speaking law. They are not to make law, otherwise they would be guilt
of usurpation of power.
[6] Mtikila vs. A.G.
(1991) High Court Tanzania (unreported)
[7]Article 159 (2) (d)
of the Constitution of Kenya.
[8] Some of the statutes
providing for procedure in Kenyan courts are the Civil Procedure Act, The
Criminal Procedure Code, The Evidence Act and the Appellate Jurisdiction Act.
[9] The Rules Committee
is established in section 81 of the Civil Procedure Act comprising among others
the judges appointed by the Chief Justice to formulate rules guiding conduct of
proceedings under the act.
[10] Superior courts in
Kenya are the Supreme Court, Court of Appeal and the High Court, The
Environment and Land Court and the Industrial Court.
[11] The doctrine of
precedent is buttressed in section 3 of the Judicature Act Cap 8 which
stipulates the hierarchy of laws on Kenya. Common law as a source strictly
advocates precedent as one of its main pillars.
[12] Criminal Appeal
No. 96 of 2005
Notes courtesy of KUSOL 2014 Jurisprudence Class, Group 11
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