Lee Philo Ch.5.6.

7
CHAPTER 5
1.

peace, health, security of transactions, preserving social

institutions like religion, politics, economic

Introduction

Pound was born on October 27, 1870, in Lincoln,

Nebraska.
Pound attended the University of Nebraska, earning a
Bachelor of Arts degree in botany in 1888
He was a prolific writer and his major works include The
Spirit of The Common Law (1921, An Introduction to The
Philosophy of Law (1922) etc.
2. Social Engineering
The adjustment of conflicting or overlapping interest is
done at the point where it will serve the jural postulates,
implement the social interest, and express the
national policies.
Man is a social animal and needs a society for his
leaving, working and enjoying life
The force which asks for the adoption of Social
engineering is nothing but the conflict of interests of
individuals
Social means group of individual forming a society
engineering, he explained his concept by explaining the
role of engineer/architect and equating it to lawyers. Just
as an engineer chalks up a plan before starting a project
so do lawyers they must work with a goal in mind to uplift
society
3. Interest Theory
In a society everybody is motivated by their own interest
and wants that preference be given to his or her interest
over the other. Conflicts between interests arise because
of the competition of the individuals with each other
For this purpose a legal system has to
Recognize certain interest
Define the limits within which such interest are to be
legally recognized and given effect to it.
And finally the above interest should be secured
4. Pound classified various interests which are to be
protected by the law under three categories which
are the following:
INDIVIDUAL INTERESTS: These are claims or demands
involved from the stand point of the individual life which
consists of interest of personality, interest in domestic
relations and interest of substance
PUBLIC INTEREST: These are the claims or desires
asserted by the individual from the stand point of political
life which means every individual in a society has a
responsibility towards each other and to make the use of
things which are open to public use. Interest in
preservation of state
SOCIAL INTEREST: These are the claims or demands
in terms of social life which means to fulfil all the needs of
a society as a whole for the proper functioning and
maintenance of it. Interest in preservation of general

5. Jural Postulates
The guidelines on the basis of which social engineering
should be carried out.
In 1919, Pound summarized theFive postulates, They
are:
Others will not commit any intentional aggressions upon
him. E.g. Assault, battery, wrongful restraint etc.
Others will act with due care and will not cast upon him
an unreasonable risk of injury. E.g. Negligence
He can appropriate what he has created by his own
labour and what he has acquired under existing economic
order for his own use. E.g. agricultural land and usufruct
as property.
The people with whom he deals with in the general
intercourse of society will act in good faith. E.g.
Defamation
He must keep the things within his boundary and should
look after those things so that their escape should not
harm others. E.g. Ryland vs. Fletcher case
6. In 1942, Pound added three new postulates in the
list which are :
A person will have security as a job holder. E.g. ruled by
labour law, law of contract
Society will bear the burden of supporting him when he
becomes aged. E.g. 1/3rd concession in railway ticket,
ceiling of income tax range is more.
The society as a whole will bear the risk of unforeseen
misfortunes such as disablement. E.g. reservation quota
for physically disabled person in education, travel etc.
The jural postulates are to be applied both by the
legislators and judiciary for evaluating and balancing the
various interests and harmonizing them
7. Criticism
Social engineering has been criticized for the use of the
term engineering, which equates society to a factory like
mechanism
Ignores the fact that law evolves and develops in the
society according to social needs and wants
The dynamic feature of law is undermined
The Conflict of interests e.i Social and Individual.
8. Categories of Social Interest in the:
a. General Security
b. Maintenance and Protection of Social Institution
b.1. Domestic Institution
b.2. Religious Institution
b.3. Political Institution
b.4. Economic Institution
c. General Morals
d. Conservation of Human Resources
e. Conservation of Natural Resources
f. General Health
g. Human Personality and Dignity
h. Social Life
i. General Progress

Lee Philo Ch.5.6.7

j.

i.1. Cultural Progress

i.2. Moral Progress
i.3. Economic Progress
i.4. Political Progress
General Aesthetic

CHAPTER 6
LEGAL REALIST PERSPECTIVE
What is the legal realist perspective?
Known as Modern Legal Realism to describe the
experiential outlook of this school of jurisprudence on the
traditional assumptions on the nature of the legal order.
Also labeled as Pragmatic Jurisprudence, which when
used as a method of analysis, maintains that if there is no
conceivable practical effect of a concept or idea, then
there is simply no point in pursuing its analysis.
What is the Legal Realists Concern as a Juristic
School?
The legal realist is more concerned with the operation of
the legal order in terms of the experiences and
interexperiences of the people in the legal ordering of
society. This concern sets the legal realist apart from the
adherents of the functional juristic school
I. Judicial Legal Realism What is it like?
It is characterized by a healthy skepticism for the
traditional perspective of law.
It criticizes the positivist school of jurisprudence for
overdependence on the role of rules in the legal ordering
of society.
It faults the teleological school of jurisprudence for its
over-emphasis on the abstract postulates of the natural
law.
A. Intellectual Forbears
Benjamin Hoadly, Bishop of Bangor asserted in a
sermon before a congregation which included King
George I that, whoever hath an absolute authority to
interpret any written or spoken laws; it is he who is truly
the lawgiver to all intents and purposes, and not the
persons who wrote or spoke them.
John Marshall, US Supreme Court Chief Justice
- Was probably the first to acknowledge in a court decision
the concept of judicial legal realism as expressed on his
decision in the case of Marbury vs. Madison when he
asserted that, it is emphatically the province and duty of
the court to say what the law is.
Oliver Wendell Holmes, Justice US Supreme Court
(One of the acknowledged inspiration of realist scholars
who came after him)
His ideas on Human Law and Human Experience.
- The precepts of natural law do not lie on the surface for
they are really concealed and must be dug out and
examined.

- The precepts of natural law are so abstract that people

are led to contradictory results by them.
- The law is not a divine parent keeping watch over a
human child. Human law is human and should not amount
to more than that.
- The law should address human experiences past and
present. The law should not be considered as a system of
reason, not a deduction from ethical principles, corollaries
and axioms, or what not.
- The life of the law has not been logic, it has been
experience. The felt necessities of the times, the prevalent
moral and political theories, intentions of public policy
avowed or unconscious, even the prejudices which judges
share with their fellow men, have had a lot to do than the
syllogism in determining the rules by which men should be
governed.
- It is not the will of the sovereign that makes the law but
what the judges, by whom it is enforced, says is his will.
The judges have other motives for decisions, outside their
own arbitrary will, besides the command of the sovereign.
And whether these motives are, or are not, equally
compulsory is immaterial if they are sufficiently likely to
prevail to afford a ground for prediction. (On the
consequences of the metalegal stimuli on judges)
- If you really want to know the nature of the law, you take
it from the point of view of the bad man who cares only for
the consequences which such knowledge enables him to
predict what the courts will do to him.
- For him, what constitutes as the law are the prophecies
of what the courts will do in fact.
John Chipman Gray, Harvard Professor
(One of the acknowledged inspiration of realist scholars
who came after him)
His ideas on separation of the Law from its source. - He
emphasized that the law is not an ideal concept but
something that actually exists. It is not that which is in
accordance with nature, or religion, or morality, it is not
that which ought to be but that which is.
- In giving definition of what the law is, he stated: The law
is the whole system of rules applied by the courts. The law
of the state or of any organized body of men is composed
of the rules which the courts lay down for determination of
legal rights and duties.
- Legal rules are only sources of the law. The shape in
which a statute is imposed on the community as a guide
for conduct is the statute as interpreted by the courts. The
courts put life into the dead words of the statute. - No rule
or principle which the highest tribunal of a country refuses
to follow is law in that country.
B. Constructive Skeptics
- Characterized by a healthy skepticism about the role of
rules, facts, and judicial opinions in the legal ordering of
society.
3 Distinct Groups:
1. Rule Skeptics
2. Fact Skeptics

Lee Philo Ch.5.6.7

3. Opinion skeptics
1. Rule Skeptics
- Question the notion of the legal formalists that legal rules
are precise and can be applied easily in any given case Dispute the claim that legal rules by themselves dictate
the or decision of a case. Rule skeptics feel that legal
formalism has shunted to the background the relevant
though inarticulate premises and uncommunicated
reactions of those involved in conflicts of interests, namely
the parties, the witnesses, the lawyers, the adjudicating
officials, and even the community itself.
2. Fact Skeptics
- Appreciates the role of appellate court decisions in the
prediction of what courts will do. But they deplore the
overemphasis given to appellate court decisions and
consequently, the lack of attention to the actualities
happening in the trial courts.
For fact skeptics, the major cause of legal uncertainty is
fact uncertainty, the unknowability before the decision of
what the trial court will find as the facts and the
unknowability after the decision of the way in which it
found those facts.
To illustrate the fact skeptics point into a crude schematic
of the decisional process:
RF=D Where R is the rule, F the facts and D the decision
or judgment.
On this basis, an erroneous F will lead to an erroneous D.
No matter how excellent the legal rules and social
policies they embody, specific decisions will go astray,
absent competent fact-finding.
3. Opinion Skeptics
Mostly deals with the role and effect of metalegal stimuli
on the judicial personality. Litigants present a set of
conflicting major and minor premises for each and every
issue they argue about. In considering which of these
contradictory premises, rules and citations are correct or
reliable, appellate courts may and do make mistakes in
the process. The rationalization of a court even when on
the basis of the material facts, the relevant rule and the
actual issue or issues in a case may qualify as judicial
precedent only when it is confined from molar to molecular
motion
C. Role of Material Facts
- Whether a judge considers certain facts as irrelevant or
assumes the existence of certain facts which may not
even be in the record of the case, the point is that the
material facts are no more or less than what the judge
they are.
D. Role of Experience and Social Advantage
- Law is a statement of the circumstances in which the
public force will be brought to bear upon men through the
courts. - the law is not an exclusive product of logic. Logic
has not been the life of the law for one can give any

conclusion a logical form. The premise must first have to

be valid, that is to say based on social advantage before a
correct conclusion can be drawn. - the point is that there
are human factors involved in the legal ordering of society.
These factors are unavoidable, especially in the hard
cases.
E. Role of Metalegal Stimuli
- Attention is focused on the empirical factors which
underlie the judicial process. Stress is given on the
predictory use of court decisions in light of the influence
exerted, in fairly uniform manner, by certain metalegal
factors on the adjudicating officials.
Formalist vs. Realist Concept
Formalist Concept
- Decisions follow on the basis of stare decisis. - In this
model, the decisive legal rule serves as the major
premise, the material facts constitute the minor premise
and the decision is reached strictly by deductive
reasoning.
Realist Concept
- What the courts will do in fact is not achieved only by the
interaction of the rules on the facts. - There is a human
equation in the life and process of the law. - Metalegal
stimuli not only provides the means for creative thinking
but also the setting and justification for the play and action
of what Holmes called experience and social advantage.
Metalegal Factors
- These are factors that create conflicts of interest
affecting the judicial process. - Their importance in the
adjudicative process lies in the reality that decisional
behaviour is very likely to be affected by them, obscurely
or articulately, unconsciously or avowedly. - They are
environmental in character and personal in nature
Sources of Metalegal Factors:
a. Stimulus set by the Witness - it has been said that the
testimonies of the witnesses constitutes the axis on which
the decision of a judge may turn. - the stimulus set by the
witness on the judge is principally the result of their
statements, gestures, manners, moods, hesitation,
embarrassment, grimaces. - what is deemed reliable
testimony depends upon the unique reaction of a
particular trial judge to the particular witness in a particular
trial case.
b. Stimulus set by Lawyers - brought about by the
lawyers professional reputation and the lawyers
professional bearing.
i. Professional reputation brings to it the lawyers sincerity
and inclination for the right and fair cases and the
intrinsic validity of the lawyers theory of a case, his
arguments on the law and the material facts involved.
ii. Stimulus from professional bearing stems from the
lawyers respect and regard for his own responsibilities as
an officer of the court.

Lee Philo Ch.5.6.7

I. The Law and Its Purpose
c. Stimulus set by the Judges Legal Attitudes and
Prejudices - these are the stimulus coming from the sum
of the judges inclination or bent on the matter in dispute.
d. Stimulus set by the Judges Predilections and
Preconceptions:
i.

ii.

Through the judges legal sympathies (strong

likings which arise from a judges community
of experience, education, interests and even
temperament.
ii. Through the judges predilections how the
judge view his/her role. iii. Legal antipathies
settled aversions or dislikes for certain legal or
political theories or ideas

e. Stimulus Set by Historical Events and Political

Precedents - the prevailing sentiments under a particular
event or political precedent may affect the way a judge
rationalizes his/her decision.
f. Stimulus Set by Current Social Values and
Economic Postulates - decisional behavior of a judge
may be influenced by his or her social or economic
outlook. - judges are human beings and they cannot
isolate themselves from current social values and
economic postulates.
F. The Law as the Product of the Judicial Process
- Stresses on the importance of the ratio decidendi as a
vital factor in prognostication of the result of other similar
or nearly similar cases. (But this is only true so long as the
judicial elaboration is done interstitially) illustrated in a
crude mathematical formula: (jR mF) (mlS jP) = L
Law becomes the product of jR(jural rules), mF(material
facts), mlS(metalegal stimuli) and jP(judicial personality).
G. Exclusion
Functions

of

the

Legislative

and

Executive

- Judicial legal realism excludes the legislative and

executive organs as producing agencies of the law
because in the adjustments of conflicting or overlapping
interests and purposes, the ultimate authority in the
interpretation and application of legal rules is the judicial
organ.
- Statutes enacted by the legislature and the orders issued
by the executive department are only sources of law. This
means that all agencies of the government engaged in
decision making form part of the adjudicative organ,
regardless of their political or governmental classification.
H. The Adjudicative Process as the Prime Mover
In judicial legal realism, the process that controls the
activities of individuals or groups of individuals in a
politically organized society is the law uttered by the
courts.

- The administration of justice is considered as the end of

the law.
- In realist jurisprudence, a legal rule is not necessarily
just merely because the legislative or the executive
organ has promulgated it.
II. Social Legal Realism What is it about?
Based on the philosophy of John Dewey (1859-1952).
It holds that knowledge is part of life-experience involving
the intercourse of a living being with his physical and
social environment.
Of the view that the life of the law cannot be understood
apart from its social environment but must profit from
social experience in the development of concepts, rules
and regulations
A. Source of Law
Dewey posited that law is the product of the ongoing
human activities and interactivities.
The source of law is the social experience of the people,
not the transcendental concept, since all that the people
can appreciate well are their own experiences.
B. End or Purpose of Law
The end purpose of the law is the deliberate
achievement of social contentment.
For Dewey, the law is a program of action to be tested in
action, not something that can be judged on a purely
intellectual basis.
The life of the law is the social experience of the people
and tested also by their social experience. Social
contentment is the satisfaction which comes when the
dominant active tendencies are made interests in the
maintenance and propagation of the things that make life
worth living.
C. Application of Law
The law is an instrument of social control.
Implicit in this concept is the use or threat of sanctions
for the attainment of the social ends. What is called
application is not something that happens after a rule or
statute is laid down but is a necessary part of them; such
a necessary part indeed that in given cases, we can judge
what the law is as a matter of fact only by telling how it
operates and what its effects are in and upon human
activities that are going on.
III. Critical Legal Realism
The Critical Legal Studies Movement was formally
organized at the First Conference on Critical Legal Studies
held in May of 1977 at the University of Wisconsin.
This Movement has won adherents in France, in
Germany, in Canada, in England and in the Philippines.
The task of a GOOD LAW SCHOOL is to provide a legal
education which frees the minds of professors and
students alike from the grips of the dominant liberal
paradigm and to delegitimize the improper and illicit tie
between law and politics.

Lee Philo Ch.5.6.7

A. Critical Legal Scholarship Scorned
illegitimate descendants of the modern legal realist
school of jurisprudence. -Richard Posner of the US Court
of Appeals
The kinship claimed by the critical legal scholars to the
modern school of legal realism is a grasp at legitimacy G. Edward White, Professor of Law University of Virginia
the academic left subculture. -Cornel West, Professor
of Religion Princeton University
B. Polemics against Critical Legal Realism
The Critical Legal Realism is a critique directed against
many aspects of the dominant liberal paradigm. Included
therein are the ways in which the language of impartiality,
objective due process, and value-free procedures hide
and conceal partisan operations of power and elite forms
of social victimization.
Some proponents of the dominant liberal paradigm have
branded critical legal realism as another form of radical
socialism, no different from the critical socialism of Karl
Marx. As stated by Karl Marx, the bourgeois concept of
law is but the will of the dominant elite erected into
legislation, a will whose essential character and direction
are determined by material and economic conditions of
the existence of the class.
Critical Social Realism vs. Critical Legal Realism
The difference between the two theories is that the critical
social realism of Marx is leftist oriented while the critical
legal realism of Unger is not. Unger stated that his, social
theory is an alternative to Marxism not a reaffirmation but
a staunch denial of the bourgeois plan of social division
and hierarchy.
C. Deconstruction of Dominant Liberal Paradigm
The term deconstruction is used by the Critical Legal
Studies Movement as a method or technique of:
Stinging inquiry and analysis of the tendencies, beliefs,
attitudes, and interpretations of the dominant liberal
paradigm, and
Internal reformation and development of the ideas and
concepts of the dominant liberal paradigm by the
presentation of the rationale or justification for the censure
and the offer of alternative solutions.
1. Thrashing the Traditions of the Dominant Liberal
Paradigm
The Critical Legal Realists have discovered that in the
liberal legal order, there is a free rather than a just society
characterized by widening divisions and sharpening
hierarchies and a jealous special-interest economy
marked by exploitative, individualistic, and possessive
propensities to control the social, economic, political, and
legal processes of society through the subtle use of power
and resources.
Three undesirable situations in the contemporary liberal
order were identified by the critical legal realists.
These are:
the state has become the organization of the dominant
liberal class;

the law has become the rationalizing instrument of

alienation and oppression yielding concessions to the
people only when absolutely necessary in order to avoid
protests and contradictions; and
the social structure has become so divided and
hierarchied that status and position therein are being
determined by irrelevant inequalities.
Unger agrees that the tradition and propensities of the
dominant liberal paradigm reveal its class essence.
2. Internal Reformulation of the Dominant Legal
Paradigm
The critical legal realists have gone beyond their analysis
of the traditions of the dominant liberal paradigm at the
first stage of the deconstruction process. They envision a
post-liberal socio-legal order.
i. Rule of Law
Here, the noun rule is best understood with regnum,
which means reign and sovereignty of the law.
This means that conduct must conform to the formal and
impartial norms and values of the law suggested by the
phrase a government of laws, not of men.
It is not a license for extemporaneous and arbitrary
exercise of authority but a limitation on the far reaching
exercise of political power and economic authority.
ii. Separation of Governmental Powers
It involves more than a question of checks and balances
on the exercise of governmental powers. It is concerned
with the direct and indirect confrontation of core interests
and functions between the legislative and executive power
vis--vis the legislative power and vice versa.
iii. Objectivism and Formalism
These techniques have been utilized by the dominant
liberal class to mask its maintenance of the status quo.
Objectivism
It is not the cognizable extrinsicality of legal concepts
and legal rules.
It is the liberal view that the contemporary legal order,
including the built-in institutional structures that undergird
it, is already sufficient to sustain society and, therefore, no
reason exists to complain about it.
Formalism
It is not so much the application of legal rules on the
facts involved in a conflict of interests that is attacked as it
is:
Over-dependence on legal rules; and
Assumption that the legal order is non-partisan in the
adjustment of conflicting interests.
iv. Judicial Activism
Otherwise known as judicial legislation.
Critical legal scholars are deeply concerned about the
dangers of illegitimate decisions.
Judicial activism is nothing but a euphemism for avoiding
the principle of separation of governmental powers.
Justice Oliver Wendell Holmes

Lee Philo Ch.5.6.7

courts legislate interstitially; they are confined from
molar to molecular motion.
While judicial activism cannot be avoided, nevertheless,
such activity is proper only when there are interstices or
gaps in the text of the statute under question.
Courts cannot enlarge the scope of a statute to include
matters beyond its text or import.
Judicial Activism based on molecular to molar motion
CONDEMNABLE on several grounds:
1) It reflects only the personal or collective prejudices of
the judges on what the legal rule should be;
2) It is an arrogant claim by a few unelected judges of veto
power over legislation;
3) The legislators who are the representatives of the
people and politically accountable to them, not the judges
with an almost lifetime tenure, are the ones to make,
modify, change, or repeal legislation;
4) Courts should have no advantage over elected
legislators and the former are to put into effect legislation
regardless of their disagreement with the wisdom of the
legislation, except when it is unconstitutional;
5) Legislative facts and assessment of policy questions
are entirely different from judicial facts and consideration
of actual cases; and
6) Courts have no moral and legal bases to create or
contradict rules or policies merely on advisability.
The indeterminacy of laws enacted by the legislature
appears in two forms: First, when they are vague.
Second, when they provide inconclusive guidance as to
how persons are to act in the performance of their
obligations or in the exercise of their rights.
Judicial policy-making dulls the cutting edge of pure
analytical reasoning.
Analytical reasoning is replaced by political reasoning
whenever courts engage in judicial policy-making.
When the emphasis on determinate rules are diminished
in the adjudicative process the result is NOT LAW BUT
POLITICS.
v. Popular and Liberal Concepts of Democracy
The critique against the idealistic version of democracy is
that it is awash with inapt hope on and misplaced
confidence in the majoritarian rule and the theory of the
consent of the governed.
The critique against the cynical type of democracy is that
the dominant liberal paradigm has virtually gained control
of the government as well as the monopoly of the
financial, production, commercial, and monetary
involvements of the country. The dominant liberal class
would argue that it has occurred only after hard, rugged
competition.
Transformation of the Liberal Legal Order
Two basic means for transforming the liberal legal order
dominated by avid capitalism:

1) The norm of basic equality; and

2) The norm of democratic republicanism.
a. Basic Equality
Traceable to Aristotle, who posited the concept of fair
equality as a jural postulate of natural law.
It has become the basis for the distribution of the social
and material goods of society depending upon individual
effort and merit.
Dimensions of Positive Equality:
1. Equality of opportunity
2. Equality before the law
3. Equality between values given and received
4. The equable sharing of social and material goods on
the basis of efforts exerted in their production
b. Democratic Republicanism
underscores the proper relationship that should exist
between the legal order and society in general
defines the essential features of the social organization
as well as the individual rights and entitlements that the
government must protect come what may
NOT BE ONLY REPUBLICANIZED
- established and organized for
deconstructing the liberal order

the

purpose

of

BUT ALSO DEMOCRATIZED

- eradication of social divisions and hierarchies and the
return to the people of their right to rule the harmonious
co-existence of the exercise of governmental powers and
the peoples enjoyment of their basic rights and primary
entitlements is possible.
D. Transformative Content of Post-Liberal Order
Three transformative contexts:
1. The decentralization of government.
2. The reorganization of the market economy.
3. The reconstruction of the system of rights.
1. Decentralization of Government Elements:
- Accountability
- Devolution
- Effective and efficient decision-making
- Responsible and accountable party government
2. Reorganization of the Market Economy
The equitable sharing and distribution of surplus or pure
profit on the basis of effort exerted in its production.
The equitable assignment of the more or less absolute
claims to the divisible portion of the social capital to
guarantee a constant flow of new enterprise in the market
economy.
3. Reconstruction of the System of Rights
In the post-liberal socio-legal order, new concepts of
rights are introduced. These are:
- the resistance right
- the destabilization right - the solidarity right
- the market right.

Lee Philo Ch.5.6.7

i. Resistance Right
Gives every individual the fundamental sense of safety
that enables him to accept a broadened practice of
collective conflict without feeling his vital security
endangered.
One is given authority to be able to repel interferences
with his vital security in the social and economic aspects
of life.
ii. Destabilization Right
is the counterpart of the equal protection clause
enshrined in our constitution.
insures that institutions do not accumulate power that
may insulate them from challenge and accountability.
is the institutional protection of an empowered
democracy
iii. Market Right
establishes the limits of the claims which a person or
group of persons may make against capital available in
society.
enables every member of the society to question
concentration of concessions of natural resources in one
individual or group of individuals.
gives a person the conditional and provisional claim to
the divisible portions of the social capital established by
the state.
F. Function of Law
Law is an instrument to redeem the people from social
divisions and hierarchies.
Law as a neutral and objective means of social control
with emphasis on its liberating function.
Only when the law is neutral and maintains its neutrality
in the inevitable conflict of claims, demands and
expectations can everyone in society accept it as a means
of social control and feel safe and secure from illegitimate
divisions and hierarchies.
IV. Psychological Legal Realism
Pursued by a small but vigorous group of Scandinavian
jurisprudents.
Based on the works of the following:
Axel Hagerstrom (1868-1939): the acknowledge
founder of psycho-logical legal realism.
Vilhelm Lundstendt (1882-1955)
Karl Olivecrona (1893-1963)
Alf Ross (1894-1974)
A. Critique of Judicial Legal Realism
According to Ross, the perceptions of Holmes, Gray and
Frank that the law is indefinable without dealing with the
environmental and predispositional metalegal factors
operating in the judicial process suffers from the failure to
separate the issue of validity from the question of reality in
the judicial process.
There is over-reliance on the role of the metalegal stimuli
in the judicial process and overemphasis on the
vicissitudes of fact-finding in the courts.

B. Critique of Legal Ideology

Lundstedt complimented the legal realist for their efforts
to free themselves from all prejudices of legal ideology
based on abstract values.
The peril to be avoided in legal ideology is that its
intellectual patterns are abstract and vague.
Legal ideology does not have a fixed meaning but
depends on the preferences of its proponents and
interpreters.
Example, to characterize a statute or rule as just or
unjust is meaningless. Just or unjust is nothing but an
expression of a persons own opinion or preference that
he or she likes or dislikes a statute or rule.
C. Nature of Law
The law and its component system of jural relations are
real because they are social facts.
Legal activities are essential to the social order, and to
assure the legal ordering of society the law and its
component jural relations must be based on the feeling
for justice prevalent and current within society.
D. Jural Relations
Right:Obligation is the basic jural relationship of
individuals to other individuals and individuals of the state.
4 Types of Jural Relations
The claim-duty relation
The power-liability relation
The privilege-inability relation
The immunity-disability relation
In the case of right and its correlative obligation, their
reality must, respectively be, based on the feeling of
ascertaining a position of advantage and the feeling of
complying with the prestation constituting the undertaking.

CHAPTER 7
POLICY SCIENCE PERSPECTIVE
The Yale Approach
Policy oriented approach was launched at Yale University
by Prof. Harold Lasswelland Prof. Myres McDougal
Solution
To move away from Legal Positivism and Legal Realism
Policy Science
Means the discipline concerned with the formation,
clarification and realization of social values.
Systematic study of the social processes by which
POLICY IN GENERAL is developed and executed to
achieve OBJECTIVES.
POLICY SCIENCE JURISPRUDENCE
Law is an instrument of SOCIAL ORDERING.
SOCIAL VALUES, GOALS, POLICY GUIDELINES
Statute, Administrative Order, Judicial Decision
LEGALPOSITIVISM

Lee Philo Ch.5.6.7

Law is a complete set of norms and rules of action which
excludes from its specific concerns value creation,
clarification and realization.

A political mechanism for the good of the society which

reflects the will and choice of the people as a whole and
not just that of the leader.

POLICY SCIENCE
Law is adequate if it does not take into account the goal
values and policy guidelines to which the society is
committed.

A.
Forms of Authority
Refers to the distribution of the exercise of the social value
of POWER in a politically organized society.

FOUR SALIENT FEATURES

1. Reaction to apathy towards social values/Reaction
against Obsolete Concept of the Role of Law
2. Movement Away from Ontological Jurisprudence
3. Emphasis on the Rights of Man
4. Movement for the Universal Recognition of Social

1. Government
2. Pressure Organizations
3. Private Business Enterprises
4. Cultural Organizations

1. Reaction to apathy towards social values/Reaction

against Obsolete Concept of the Role of Law
Obsolete Role of Law
It explains he tendency of government to view the rights of
human beings as hindrances to the exercise of
governmental powers.
There is the inability of the policymakers to come out with
simple and basic social values for the attainment of peace
and security
2. Movement Away from Ontological Jurisprudence
Ontological Jurisprudence
Legal Positivism- No moral principles precede the law.
There is nothing immoral that is legal.
Judicial Legal Realism- That statute, rules and
ordinances are no more than sources of the law and that
the law is what the courts will do or likely do in fact stands
on shaky ground.
3. Emphasis on the Rights of Man
Recession of the Fundamental Human Rights Infinite
worth of Human Dignity.
Emphasis the fact that the efforts of human rights and
freedom has been stifled (restrain).

Facts of Control
Well known in constitutional science as
sovereignty and the control-power of the people.

popular

1. Making and changing the fundamental laws of the land

whenever a need for such change arises.
2. Making and changing laws and influencing the changes
in important decisions directly or indirectly.
3. Expressing free and genuine will in popular elections by
means of secret balloting and not by block voting.
4. Having real access to and holding of any constitutional
and political office.
5. Free criticisms on public matters or officials in the spirit
of truth and decency.
6. Holding all government officials accountable and
responsible for misconduct in office.
7. The Freedom to express opinions and ideas.
B. Aspects and Referents
As a social value, POWER has a tree-fold meaning or
aspects.
1. The capacity to secure and maintain the fundamental
rights.
2. The competence to share in the making of policy of
private groups or organizations.

4. Movement for the Universal Recognition of Social

Values
Policy science perspective views the law as an instrument
for the achievement of the social values.

3. The capacity to participate in the making of important

public decisions without any political or religious
interference.

Policy Process and Problems about Values

KNOWLEDGE

1. Value Creation
2. Value Clarification
3. Social Value Implementation

A. Purposive Forms
As a social value KNOWLEDGE has two (2) basic
purposes to wit:

THE BASIC SOCIAL VALUES

a. To dispel misunderstanding.
b. To eradicate ignorance.

POWER
1.

General Aspect

Lee Philo Ch.5.6.7

a. Means widespread understanding among people
of different cultures and backgrounds.
b. Freedom in pursuit of truth.
c. The maintenance of the right to think and the right
of private judgment.
2.
Particular Aspect
In which the social value of KNOWLEDGE has two (2)
distinct meanings to wit:
a. It signifies the emancipation of the masses through
education and the ever increasing training and instruction
at all levels according to talent and ambition.
The state has the right to regulate, supervise and aid in
the education of adults and children for his duties,
responsibilities and human relations.
b. The cognition and appreciation of how democratic ways
and processes work and the ways for it to continue to
work better.
Men cannot simply remain loyal to democratic ideas and
processes without the cognition that these are capable of
making them free.
B. Tendential Functions
There are four (4) tendential functions of KNOWLEDGE to
wit:
1. Cultural Progress
2. Moral Progress
3. Political Progress
4. Economic Progress
RESPECT
Regards for life and esteem for the dignity and worth of
human personality.

Particular Aspect: embraces the minimal substance or

means of meeting the immediate necessities and comforts
of life.
1. Immediate Neccessities Living or existing just
above the bare level of subsistence where human
needs food, clothing and shelter.
2. Immediate Comforts Improvements of the
mode of living where the immediate comforts are
considered a valid human desire.
SAFETY
General Aspect: denotes freedom from fear of disease,
pestilence and hunger as well as freedom from fear of
violence, disorder and war.
Particular Aspect: represents or signifies protection,
public health, social security, and peace and order.
a. Public Protection From simplest to complex
safety.
b. Public Health Education in health and not
physical education merely.
c. Social Security - Account aid for the unemployed
and financial assistance for the aged.
d. Peace and Order First, eradication of friction
and conflict. Second, promulgation of specific
rules with definite incentives and sanction.
LIBERTY
Due process of law was considered to mean the
guaranty of the procedural rights. Liberty means security
from restraints.
1. Relative Nature - As a social value LIBERTY is
not unrestricted.

A. Regard for Life and Limb

The free and unharmed possession of the complete body.
B. Regard for Human Personality
1.Positive Phase where there is freedom from any kind of
discrimination on grounds of race, sex, language, religion,
political opinion, or the society has a great deal to do with
the degree of respect a person may bestow or expect from
another.
2.Negative Phase Individual initiative, choice and
determination are hindered or inferred with (e.g. outlawing
subversive organizations)
As much as possible, respect for human right and
freedoms should be always restored.
INCOME
General Aspect: denotes freedom from want and the
conservation of the natural resources.
1. Freedom from want
2. Conservation of Natural Resources

In Rubi vs. Provincial Board, it was held that liberty

cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the faculties with which
he has been endowed by his Creator subject only to such
restraints as are necessary for the common welfare.
2. Purposive Affirmation - LIBERTY is manifested
in the ability of a person to do things which are
essential to realize his or her conscience,
opportunities.
3. Forms
1. Active Mode legal authority, which may either be
legal claim or legal power.
2. Passive mode legal exemption, which may either be
a legal immunity or la legal privilege.
4. Tension or Problem Area
The social values of Liberty, Respect and Equality form
the problem-area in the legal ordering of society.

Lee Philo Ch.5.6.7

Unrestricted or unreasonable interferences by the
government or by influential groups can destroy these
social values. Yet still the government is nonetheless
essential to their maintenance, augmentation, and even
preservation.
Liberties guaranteed by the constitution, imply the
existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of
unrestrained abuses.
Who should win in a conflict between individual rights
and the claim of the government to national security?
Therefore, the BALANCE to strive for is to consider the
government as an organ committed to the protection of
the social values.
5. Constituent Parts
a. Personal Liberty
b. Religious Liberty
b.1. Freedom of Conscience
b.2. Freedom of Worship
b.3. Freedom of Religion

Invalid view of Equality: equality means similarity of all

matters of social relationship.
Positive Aspect: the point is that this social value is worth
striving for in the areas or parts where they are attainable
all men are equal.
Each persons well-being and happiness is as secure
and inviolate as that of every other person
Everyone has a rightful claim to equal treatment and
protection of the law, regardless of any inconsequential
and insignificant disparity.
Constituent Parts
John Rawls
1. The equal right of everyone to the total system of basic
liberty.
2. Fair equality in opportunities to offices and positions in
order to heighten the chances of those with lesser chance
or opening.
Equitable sharing of social goods as well as material
goods to the greatest possible of the least favored
EQUALITY and Balance Before the Law
a. All individuals have a rightful and lawful expectation to
the same treatment and protection of laws without
regard to persons involved.

c. Civil Liberty
b. All individual owe equal obedience to the laws.
d. Political Liberty
e. Economic Liberty
f.

National Liberty

6. Paradox of Effective Liberty

Contradiction in the recognition of the social value
liberty.
Despite the inclusion of liberty in constitutions and
decisions of higher courts, violations are still notoriously
frequent.
Conditions often violated: economic insecurity, moral
degradation, violence, and wars.
With the right national policies,certain conditions like
peace and order,social security and financial stability will
enable liberty to thrive.

EQUALITY
Negative Aspect:
1) Equality is not absolute similarity.
2) Equality is not an assurance that everyone shall, as a
matter of fact, be the same in all relations
Jural Inequality: material and relevant to the legal
ordering.

1. SIMPLE TYPE religion or sex is irrelevant in the

exercise of suffrage.
2. DISTRIBUTIVE TYPE the apportionment of benefits
and burdens that can be shared among the members
EQUALITY and Balance of Opportunity
Equal condition and equal access to the effective
expression of individual merit toward success or even
failure.
EQUALITY and Balance of Rights and Freedoms
Every human being is endowed with certain primal or
original rights and freedoms, to wit:
1. Right to life, liberty, security and property
2. Right to religion
3. Right to education and free exercise of the mind
4. Right to free expression
EQUALITY and Balance of Political Value
Every individual must count for one and only one in
political participation without regard to person.
LAW
-Can truly be an instrument of global, regional and
national control when it is committed to the complete
achievement of the social values that constitute the
professed ends of democratic societies.

Lee Philo Ch.5.6.7

An advocacy of consistent, compatible and principled
policies, legislation and decisions on the basis of social
values.
-Vital instrument for ordering conduct through the
formation, clarification and realization of the social values
where the patterns of authority are conjoined with the
patterns of control.
Where decisions or solutions are authoritative but not
controlling, then there is no law but only pretense, and
where decisions or solutions are controlling but not
authoritative, then there is no law but only naked power.
Important Contribution to Legal Philosophy Statutes
not in agreement with the social values are neither
authoritative nor controlling, in much the same manner as
the naturalist jurisprudents view statutes which are
contrary to the precepts of natural law to be no law at all.
Importance of the Policy Science Jurisprudence
A bad decision is simply one that is not in accordance
with the social values.
END IN VIEW
Attainment of peace, order and security
Freedom is found when there is one world state which is
democratically organized, or to the degree that democratic
states are able to prevent interference by despotic power.
(Lasswell and McDougal)