Legal Realism Notes

LEGAL REALISM
INTRODUCTION
 LR holds the theory that law is practical and pragmatic.
 Members of this school are mostly judges: These include Cardozo, Holmes
 The two major schools of legal realism are Scandinavian and American Realism.
Focus is on American Realism.
 LR is a combination of the analytical and sociological jurisprudence to the effect that

they believe we need to know what the law is before using it and that the law has to
solve a social problem but from the view point of the courts.
 According to Holmes – “A prophecies of what the courts will do in part and nothing
more pretentious is what I mean by Law”. This means that the pronouncements of the
court is the law. Thus, a law that has not been ventilated in court is no law, even the
provisions of statute.
 In addition, there is a slight divide among the proponents in the dilemma between
precedents and interest of society. Some believe that there should be no deviation
from precedents and that judges made laws (case laws) are the law; while others
believe that precedents should not be worshipped always and that an activist judge
can deviate from precedents.
 For legal realists, there is always a gap between what is and what should be and they
are interested in what is. To them, a law is a myth until it is addressed by the court.
I. BENJAMIN CARDOZO (1870-1938)

 He is an activist judge who believes that judges make laws and a jurist with major
bias for sociological jurisprudence.
 He posits that in the judicial process, the judge must often weigh conflicting interests
and make a choice between more than one logically admissible alternatives of
decision.
 This choice is often influenced by inherited instincts, traditional beliefs, acquired

convictions and conceptions of social need.
 Thus, he must balance all his ingredients of logic, history, and customs and must
determine as wisely as he can, which weight shall tip the scale.
Lotachukwu Udenta
1
 He believed that the social welfare and justice must be followed.
II. OLIVER WENDELL HOLMES (1841-1935)

 He introduced a predictive approach to the law by opining that law is simply a
prediction of what courts will decide.
 He posited that in order to know what the law is, one should view it through the eyes
of a bad man who does not care of the method in which the court applies in reaching a
decision, but who is only concerned with what will happen to him if he commits a
certain wrong. Which in this instance is put by Holmes as “The Prophecies of what
the court will do and nothing more pretentious”
 He recognized that there are many non-legal factors which influence the law such as
morality, politics and prejudices. Thus, a realistic prediction must attend to all these
other factors.
III. KARL LLEWELLYN (1893-1962)

 He believes that the focal point of legal research should be shifted from the study of
rules to the observance of the real behaviour of law officials, particularly judges.
 To him, legal rules as founded in books and emphasized in judicial decisions do not
accord with reality and fail to describe the reasoning processes that judges adopt in
reaching their decisions.
 He believes that law has jobs to do within a society if it is to survive and achieve its
purpose, and these jobs must be effectively carried out. He identified these law jobd to
include
 Resolving disputes between members of the community.
 Prevent disruptive conflicts within the community.
 Accommodate changes in the circumstances of the community.
 Recognize the authority structure of the community.
 Establish procedural rules for performing other tasks.
IV. CRITICISM
 Undermines legal principles and rules ad treats law as a jumble of unconnected court
decisions.
 No certainties and definiteness of law as the perception of law rests upon the
subjective fantasies and life experiences of the Judge.
 This lack of uncertainty may deflate Justice. For instance: On July 2016 – Justice
Mohmmed Yinusa from the FHC was dismissed by the NJC for being notorious for
often writing more than one judgement for the highest bidder.
Lotachukwu Udenta
2
 The realists seem to totally neglect that part of the law which never comes before the
court. For example:
 Neglects the reality that there is less cope for judicial manoeuvring when statute
provides a clear cut rule or precedent. E.g. Rules of Court.
 Realist is confined to the judicial setting of America and thus does not give a
universal world view.
V. NIGERIAN CONTEXT
 In Vivian Odogwu v State: the accused was a law student in Rivers State University
who killed a law lecturer. The facts of the case were that the accused was dating the
deceased and the latter promised to marry the former and however, later breached this
promise. And in her chagrin, she went to his house in the staff quarters and killed him.
She was bundled into prison and in court, she entered a plea of not-guilty.
Based on the patriarchal nature of the Chief Judge who happened to be man, he was
so vexed about this situation that he personally assigned the case to his own court
showing clear bias. The Chief Judge also wrongly allowed the evidence of bad
character against the accused without following the stipulated criteria (ie the
prosecutor calling her a call girl). Consequently, the Chief Judge convicted the
accused of murder and sentenced her to death.
 In Awolowo v Shagari:
Lotachukwu Udenta
3

Legal Realism Notes

Uploaded by

Copyright:

Available Formats

Legal Realism Notes

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Legal Realism Notes

Uploaded by

Copyright:

Available Formats

LEGAL REALISM

 LR is a combination of the analytical and sociological jurisprudence to the effect that

I. BENJAMIN CARDOZO (1870-1938)

 This choice is often influenced by inherited instincts, traditional beliefs, acquired

II. OLIVER WENDELL HOLMES (1841-1935)

III. KARL LLEWELLYN (1893-1962)

You might also like

Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.