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Monday, December 10, 2012
Legal Realism
“ The life of the law
has not been logic, it has been experience.”- Oliver Wendell Holmes Jr. (1841-1935)
Legal
realism or realistic jurisprudence is created by several factors:
1.
Progressive movement in the 1920’s promoted an examination
of traditional values.
2.
Development of the behavioral science.
3.
National reporter system showed variety of
approaches to legal rules.
This thought disapproves the implementation of precedent
(forget what it means? Look my sociological jurisprudence posting). It doesn’t
use the sources of law formally, but it uses a concretely happened behavior of social
actors to judge a case. So that this thought automatically doesn’t trust the
legal certainty that only prioritizes how predictable a law is.
9 points of
departure from common to the realists (Llewellyn):
1.
Law in flux, law is momentary and keeps on
moving.
2.
Law as means to social ends and not as an end in
itself.
3.
Society in flux, law moves slower than society.
4.
The temporary divorce of ‘is’ and ‘ought’ for
the purpose of study.
5.
Distrust of traditional legal rules and concepts
as descriptive of what courts or people actually do.
6.
Distrust of the theory that traditionally
prescriptive rule.
7.
The belief in groping cases and legal situations
into narrower categories (micro analysis).
8.
An insistence of evaluating the law I terms of
its effects (evaluate the effects of law).
9.
An insistence on sustained and programmatic
attack on the problems of law.
The points
is pursed into 4 things:
1.
Realism is contrary to the formal law.
2.
Law is in flux and created by judges.
3.
Law is a means to an end. It serves social
purposes that can be examined.
4.
Judges are human.
There are two kinds of legal realism:
1.
America:
- Rule-skeptics, the rule of law concept is
just rhetorical of the rule of ruler.
- Fact-skeptics, each case is unique.
2.
Scandinavia: Metaphysic skeptics, that the law
is obeyed merely because of metaphysic aspect not because of the moral
obligation of an individual.
American legal realism is focusing
on lawyers’ behaviors in applying the law meanwhile, Scandinavia legal realism
is focusing on the individuals’ psychological reactions about law enforcement.
LAW=LAW IN REALITY (LIVING LAW)
So legislation is not the real law since it is just the
potential of the law.
According to legal
realism, judge is more appropriate to be called as making the law than finding
the law. Judge has to always determine which principle is better to be applied
in a case. Legal realism as it has been explained earlier is the opposite of legal
positivism. It doesn’t believe in law created by legislation (positive law), it
believes that every case is unique and individual therefore after the case has
been experienced it becomes the law (living law).
Sociological Jurisprudence
“Experience is developed
by reason on this basis, and reason is tested by experience.”
The main concern of sociological jurisprudence is the legal
gaps (lacone) between positive law and living law. This thought tend to use
sociological approaches to law. There are 2 main sociological approaches:
Structural-Functional Approach and Conflict Approach.
Structural-Functional Approach explains why society
functions the way it does by focusing on the relationships between the various
social institutions, that make up society. It believes that society is cohesive
and shares common norms and has a definitive culture. Or we can say that this
approach believes that basically all human beings tend to be harmonious. That
human in society actually want to live together in harmony.
Conflict Approach is the opposite of Structural-Functional
Approach. It believes that every human being is actually different (adhesive).
Social structures are created through conflict between people and differing
interests and resources. Society deals with changing process that never stops.
That process creates conflict. So conflict is a symptom that sticks with the
social transformation.
Sociological jurisprudence embraces the principle of similias similibus, which means the
similar case is treated similarly. So this thought embraces precedent that
means there is an attachment of judges in deciding cases that are similar to
the previous case and has been decided.
This school of law argues that POSITIVE LAW should reflect
the LIVING LAW. The two primary questions in this thought are the relationship
between the “law in action” (living law) and the “law on the books” (positive
law); and positive law reflects and shapes the social dynamics.
LAW = JUDGE MADE LAW
(LAW IN-CONCRETO)
According to Roscoe Pound, Law in the books is not law in
action. The life of the law is in its enforcement. Pound also add the function
of law, which is as a tool of social
engineering.
Explanation:
Sociological Jurisprudence believes that the positive law should reflect the
living law. This is applied by the task of judges of making positive law always
reflect the living law. Because the law lives in its enforcement so the law
made by judge is the law that is trusted to reflect the living law. The diagram above describes the
sociological jurisprudence that simultaneously top-down and bottom up as it
reflects the living law (in society). From time to time, judges have been
creating court decisions. The decisions are bound with the precedents.
I personally think this thought is good to be implemented to
the State with many various culture or norms. It can live up the positive law
in order to fit and be in line with the living law. But we have to be careful.
Here, judges hold the important role to enforce the law as great as possible to
reflect the living law. And there is possibility that in similar cases, there
would be different factor, so it’s quite tricky if we use the precedent because
we can ignore the justice itself unconsciously.
Utilitarianism
The basis of this school of thought
is what gives benefit to human generally. It means that law is created to give
people benefit, utility, or happiness. This thought demands the State to result
benefit for its people or at least for as many people as possible in every
action taken. It prioritizes the greatest happiness of the greatest number. So it takes utility as the foundation of
morals.
LAW = “UTILITY”
Description: Law that is created and enacted to
achieve utility/benefit is applied to society, then the society will give the
feedback whether the law fits their expectation or not. If it doesn’t fit to
the most people (the pleasure expectation of society is higher), then the law
will be improved better to fit.
The Principles of Utility
1.
Recognizes the fundamental role of pain and
pleasure in human life.
2.
Approves or disapproves of an action on the
basis of the amount of pain or pleasure brought about (consequences).
3.
Equates the good with the pleasurable and evil
with pain.
4.
Asserts that pleasure and pain are capable of
quantification and hence of measure.
According to Jeremy Bentham, the intrinsic value is Pleasure
and he assumes that pleasure = happiness. He believes utilitarianism is clearly
individualistic and egalitarian and that law must serve the totality of
individuals in a community.
There are 2 types of
utilitarianism:
-
Act Utilitarianism: choose between two actions
for which one produces happiness.
-
Rule Utilitarianism: choose between two ethical
rules for which rule would produce the greatest happiness.
Similar ethical theories also exist and it might be your way
of thinking. First is Egoism, this considers happiness for me and only me.
Second is Altruism, it considers happiness for everyone except me. And
the last one is utilitarianism, which considers happiness for everyone
including me.
I have a friend who always thinks about his only benefit and
happiness and when things don’t give him pleasure, he chooses to leave it even
if it brings happiness to others. And I also have a best friend who sacrifices
her own happiness just o make other people happy. Well everyone has their own
ways of thinking and reasons, right? Now have you figured out which type are
you? ;D
Utilitarianism also tends to be pragmatism. Pragmatism is like,
”it doesn’t matter if a cat is black or white as long as it catches mice” (Deng
Xiaoping). Sounds creepy? Yeah the bad side of pragmatism is THE END justifies
THE MEANS. Whoops!
Now that we are talking about utilitarianism that insists
law to give people pleasure and so on, we must be wondering what is happiness?
And how we measure it?
Experts explain that pleasure consists of bodily pleasure
and mental/intellectual pleasure. How do we know happiness is pleasure and
which pleasure is better? It all depends on actual experience of people.
We may be able to calculate our happiness by asking
INTENSITY (how strong?), DURATION (how long does it last?), CERTAINTY (how
likely will it occur?), REMOTENESS (How soon will it occur?), FECUNDITY (will
it be followed by sensation of the same kind?), PURITY (will it not be followed
by sensation of the opposite kind?) and EXTENT (how many people will be
affected?)
Weaknesses of Utilitarianism:
1.
It ignores happiness of minority because it
prioritizes the happiness of majority. Hence it is not just anymore because
everyone doesn’t get equal happiness.
2.
It is quite difficult to measure the happiness
for it is abstract.
“Utilitarianism is most
appropriate for policy decisions, as long as a strong notion of fundamental
human rights guarantees that it will not violate rights of small minorities.” –
Lawrence M. Hinman, 2003
Historical School of Law
“ We are what we
repeatedly do. Excellence then, is not an act, but a habit.” – Aristotle
(384BC-322BC)
The Key Figures:
1.
Friedrich von Savigny (1779-1861), “Law is never
created but it grows along with its society.”
2.
G.V. Puchta (1798-1846), “Law is like a living
organism. It is simply like language.”
3.
Sir Henry Maine, “Law is unikum.”
According to Savigny:
1.
There is no individual-humans, only
social-humans;
2.
Law is never created but it grows along with
society;
3.
Law is ‘supra-individuals’ (social phenomena)
related to history in its society;
4.
In primitive society, law is created without any
engineering process through the spirit of its society (Volksgeist);
5.
The Volksgeist is maintained with the supports
of political and technical elements.
Savigny believes that law is one
of several factors in the life of a nation such as language, custom, moral, and
constitution. So law is something ‘supra-individual’ or a symptom of society.
LAW = CULTURAL EXPRESSION/ REFLECTION OF THE SPIRIT OF NATION
Description: Law is never created.
It grows along with its society and is in line with the norms. Simply said law
is the spirit of its nation. It is simultaneously flowing in circle.
Law is like a language. There is
no moment of absolute cessation. It grows with the growth of society and
strengthens with the strength of the people, and finally dies away as the
nation loses its nationality.
The weakness is the positive law
is blurred (or maybe it’s a good one? LOL), and the progress of law is
depending on the society itself. It can be improved as long as is in line with
the spirit of the nation.
So it is hard to develop the law when the influence
from outside or external factor pushes and pulls the law.
The good point is, the law will
always fit the society because it is the spirit of the society itself.
The example of this thought is
customary law. I actually like this thought so I’ll keep it on my mind :)
I hope you can get what I was
trying to say, sorry for the mistakes! :*
Legal Positivism
“ We never know other’s
will until it is expressed to us”
Legal Positivism has 5 main ideas:
1. Laws are commands of human being;
2. There is no necessary connection between law and morals ( or 'law as it is' and 'law as it ought to be');
3. The analysis ( or study of meanings of legal concept is worth pursuing) ;
4. the legal system is a close logical system in which correct legal decisions can be deduced by logical means from predetermined legal rules without references to social aim, policies, moral standard;
5. Moral judgements cannot be established or defended as statements or fact by rational argument, evidence or proof (non-cognitivism in ethics).
there are 2 types of legal positivism:
1. analytical jurisprudence
according to John Austin,
LAW = COMMAND OF THE SOVEREIGN
the expression of an act of wishing -> the will theory of law
according to Bentham and austin, law exists when population has developed the custom of "obidience" to a certain command. this kind of obidience sets forth the law.
A law is completely enacted only when the words constituting it are so precise that it maybe applied merely with the help of a dictionary.
so, command is the expression of wish and the sanctions are very essential (it has been in everyone's mind). Austin believes that legal norm is not dynamic and basis for legal validity depends on the factual situation.
2. the pure norm theory
according to Hans Kelsen, law should be separated from moral.
Positive law = what the law it is. Moral = what the law ought to be.
In Kelsen's perspective, law lives in "das sollen" and not in "das sain". It focuses on the norm, not the real conduct. Norms consists of basic norm and individual norm. This pure theory discribes positive law as an objectively valid order and states that this interpretation is possible only under the condition that a basic norm is presupposed. The legal system is organized in a hierarchical structure.
It is pure because it believes that law has to be clear from non- juridical aspects such as ethics, sociology, politics and history.
According to Kelsen, command is a normative character and the sanctions of law are essential but it follows the norm (casuistic). Legal norm is dynamic and the basic norm depends on the Grundnorm.
well legal realism states that the legal responsibility is determined by the norm, not by the logical relationship between norm and facts.
Legal Positivism = Formal Jurisprudence
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