NG’ANG’A NJERI LEAH

G-62/43300/2022
leanganga@students.uonbi.ac.ke
MASTER OF LAWS (LLM PROGRAM)

“Take the fundamental question, What constitutes the law? You will find some text writers telling
you that it is something different from what is decided by the courts of Massachusetts or England,
that it is a system of reason, that it is a deduction from principles of ethics or admittedaxioms or
what not ….But if we take the view of our friend the bad man we shall find that he does not care
two straws for the axioms or deductions, but that he does want to know what the Massachusetts or
England courts are likely to do in fact. I am much of his mind. The prophecies of what the courts
will do in fact, and nothing more pretentious, are what I mean by the law.” [See Oliver Wendell
Holmes, The Path of the Law, (1897), 10 Harv. L. Rev, 457-478].

Using the above extract as your reference point evaluate the Realists’ definition of law.

Legal realism sprang up towards the end of the 19 th Century by the American and Scandinavian
countries. The American proponents included Oliver Wendell Holmes, Karl N. Llewellyn, Jerome
Frank and Benjamin Cardozo, among others, who were influenced majorly by pragmatism. The
Scandinavian proponents included Axel Hägerström, Karl Olivecrona, Lundstedt, Alf Ross and
Anders Vilhelm, among others, who strictly rejected the concept of natural law and who believed
that legal concepts, terminologies and values should be based on experience, observation and
experimentation and are thus, “real”.1

The common and main view of the above Realists is that law is judge made, that as opposed to
studying what the rules are, the study of the rule makers is what is important. The rule makers in
this instance refer to judges or judicial officers adjudicating over disputes in court. In this regard
then, law is considered to be what the judges decide, and not the abstract rules. The focus of the
realists is on the judges and not the legislators.

Realism can thus be described as understanding reality. In so doing, two approaches are undertaken;
first, the positivist approach which stresses that law should be distinguished from morals and that
the jurist is concerned with the law as is and not what it ought to be, and secondly, the sociological
approach which is interested in sociological and other factors that have impact on the law. In
extreme arguments of legal realists, no rule can exist as law independently of the courts. The
various Realists’ views were as follows;

Oliver Wendell Holmes;

1
Omony JP. Key Issues in Jurisprudence. 1st ed. Kampala: J.P. Omony; 200620082009.
http://books.google.com/books?id=035DAQAAIAAJ. Accessed November 16 2022
the material consequences and such knowledge enables him to predict the outcome of any legal
process or action.2

Holmes proposed that law was based on experience as well as logic, and that law was a prediction
of what courts will decide. This meant that the role of courts cannot be excluded from this theory of
law. He emphasized that laws must be strictly distinguished from morals, since the major concern is
what the law “is” and not “what it ought to be”.3

By stating that “…..but if we take the view of our friend the bad man we shall find that he does not
care two straws for the axioms or deductions…..the prophecies of what the courts will do in fact,
and nothing more pretentious, are what I mean by the law.” Holmes is trying to advance the notion
that as opposed to a good man who may exercise reason or rely on other factors such as ethics to
govern his conduct, the bad man only relies on the “probable consequences of his actions” in the
event that he lands in court, so as to guide what he does or does not do.

Holmes was trying to shift the focus from the predominant theory of Kelsen that existed during his
times, and was urging jurists to move their focus towards empirical or scientific studies, so as to
properly understand law. That the scientific study could only be tested on the bad man, through
observing what the bad man does, experiment with the bad man, compare the bad man’s behavior to
that of other bad men elsewhere, look at the trends and finally predict what the courts would do to
him. That would constitute the law. That on the contrary, a good man who is perceived to obey all
the written rules would never present an opportunity to carry out any scientific study of how he
behaves towards rules, since he follows each and every rule to the letter.

Holmes places a lot of importance on the judges’ decisions whilst defining what the law is. This is
because the position of the judges is at the apex of the legal system, hence whatever the highest
judge pronounces as his decision is immediately clothed with legitimacy and becomes the law. This
decision is then immediately backed up by the force of the state, for instance through jail terms,
penalties, among others.

Consequently, the bad man, and lawyers in any circumstance, are thus burdened with prophecies. It
is incumbent upon them when faced with a legal problem, to predict what the judges will
pronounce, for instance by looking at precedents, assessing how often certain pronouncements have
been made by the judges with regard to the matter at hand, whether the trial judge is a progressive

2
Omony JP. Key Issues in Jurisprudence. 1st ed. Kampala: J.P. Omony; 200620082009.
http://books.google.com/books?id=035DAQAAIAAJ. Accessed November 16 2022
3
Michael DA Freeman and Dennis Lloyd Baron Lloyd of Hampstead, Lloyd’s Introduction to Jurisprudence (Sweet &
Maxwell 2001) 1584.
one, and even the temperament of the particular judge, so as to predict what the judge will
pronounce.
Benjamin Cardozo;
Benjamin Cardozo was a judge of the supreme court of the United States from 1932-1938, and
emphasized on the study of the aims and procedures of law in relation to social conditions, and at
the same time placed much importance on the reliance on social policies and realities too. 4 He
advanced three ways in which the judiciary would cater to the society’s changing needs; first, by the
judge being able to use aspects of reasoning as presented by the analogy; second, by the judge being
allowed to recognize the importance of the processes of development in the work in which he takes
part and in the rules he is expected to apply; and lastly, the judge being allowed to draw from the
ideas of justice, morality and social welfare in the process of reaching a judicial decision. In
summary, the judge had the onus of coming up with a decision on the law based on reason,
judgement and custom where appropriate.

Jerome Frank;
Justice Jerome Frank refuted the idea that rules of law are the basis of a judge’s decision. Instead,
he argued that in any case, there are several errors that may occur due to factors such as coached or
biased witnesses, falsified documents or scrouplous lawyers or judges, and that therefore, the trial
judge must exercise his discretion on the facts of the case, and also apply the legal rules so as to
reach a proper decision.5 Later, Jerome Frank changed his views and asserted that legal rules were
the general guideposts for making decisions, because they contained important policies and moral
ideas.

Karl Llewellyn:
Karl Llewellyn also begins his theory by acknowledging that the study of what law is should be
shifted from studying rules, to observance of real behaviour by law officials. He advanced the
theory that law must be distinguished from other social institutions because law requires specialists
and procedures, effectiveness and regularity. He believed that craftmanship in law comprised not
only the lawyers’ skills, but also traditions, ethics training and the manner in which legal craftsmen
use their skills and determine their style.6

Axel Hägerström;
Axel Hägerström was the founding father of the Scandinavian realism and he believed that the idea
of law in the abstract rules bears no meaning as such and thus bears no empirical significance,
unless and until they have been infringed and become the subject matter of a judicial proceeding. 7

4
Supra n.2
5
Supra n. 2
6
Supra n.2
7
Supra n.2
He believed that there is no goodness or badness in the world of law, and that these words represent
emotional attitudes of approval and disapproval towards certain facts and situations.

Lundstedt:
Lundstedt on the other hand proposed that law is not founded on justice but rather based on social
needs and pressures, and that any idea or feelings of justice are guided by laws as enforced. That 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, and likewise, a right is a term for the favourable position enjoyed by a person in
consequence of the functioning legal machinery.8

Critique of the Legal Realism Theory:

Further, when courts are faced with disputes in which different parties apply different
interpretations of the constitution, legal realism comes into play, in the form of the judge’s decision,
and it all depends on the personal likes, dislikes, or sense of justice aroused in the mind of the judge
with reference to the facts of the case.

There is a large measure of predictability in case-law due to the general craft of decision-making in
the common law tradition, especially in instances where a “a cluster of factors” which tend to have

a major steadying influence in producing stability in the work of the courts. These include such
matters as “law-conditioned officials”; known doctrinal techniques; the limiting of issues; the
adversary arguments of counsel; and so on.9

In real life, or in our day to day activities, the law is contextual and relative, and this can be
evidenced by the fact that what could be law in Kenya could not be law in another country.

Negatives;

On the other hand, the legal realism theory is criticized for not meriting being referred to as a school
of law on its own, as it has borrowed ideas from the positivist and sociological schools of
jurisprudence.

8
Supra n.2
9
Freeman and Hampstead (n 3) 1591.
It has also been criticized as having distorted the real character of law, by insisting that law is what
the judges decide, and that judges follow statutes and precedents, which are already laws in
themselves.

Further, this school of law does not mention what becomes of the wide range of legal rules that
never come before the court for adjudication upon, such as administrative laws.

Benjamin Cardozo’s theory is bound to lead to the development of different laws meant to apply to
similar situations, due to the reliance on the different judges’ temperament, which would eventually
result into a lot of confusion, and a lack of a clear guideline for the people on whom the laws apply.

Further, judges may over rely on precedents so as to maintain neutrality of the courts and stability
of the laws, hence the changing needs of the society may not be fully catered for by these laws, or
worse still, the laws may fail to grow as society grows.

In reality, legal rules will always be the guidelines for the judicial process, and not the other way
round. It is not the judicial process that comes up with the legal rules.

In several instances, judges overrule previous judicial decisions of judges of equal jurisdiction,
hence it causes confusion as to which of these judge’s decisions to be considered as law.

Finally, the Legal Realism theory gains its validity from the bad man, as its scientific approach can
only be tested on the bad man. Therefore, in a society where the people obey the laid down rules,
this theory of law becomes obsolete.

CONCLUSION;
Despite the criticism, the Legal Realism Theory is arguably the theory that has influenced the path
of law more than any other school of jurisprudence, due to its “common sense” approach to
problems of law.10

10
Omony JP. Key Issues in Jurisprudence. 1st ed. Kampala: J.P. Omony; 200620082009.
http://books.google.com/books?id=035DAQAAIAAJ. Accessed November 16 2022