CRITICAL LEGAL REALISM

Group 13
Cruz, Keneth Joyce S.
Ventura, Meynard Abram M.
 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.
 CRITICAL LEGAL REALISM
• The Critical Legal Realism was introduced in the
Philippines in 1988 as part of the course in Legal
Theory in the College of Law of the University of
the Philippines.
CHALLENGE to the TRADITION of the
DOMINANT LIBERAL PARADIGM
• 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.
CRITICAL LEGAL SCHOLARSHIP
SCORNED
 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
POLEMICS VS. CRITICAL LEGAL
REALISM
 POLEMICS VS. 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.”
 POLEMICS VS. CRITICAL LEGAL
REALISM
• 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.
DECONSTRUCTION OF DOMINANT
LEGAL PARADIGM
 DECONSTRUCTION OF DOMINANT
LEGAL PARADIGM
• The term “deconstruction” is used by the Critical Legal
Studies Movement as a method or technique of:
▫ 1) stinging inquiry and analysis of the tendencies, beliefs,
attitudes, and interpretations of the dominant liberal
paradigm, and
▫ 2) 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.
 TRASHING THE TRADITION OF THE
DOMINANT LEGAL 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.
TRASHING THE TRADITION OF THE
DOMINANT LEGAL PARADIGM
• Three undesirable situations in the contemporary liberal order were
identified by the critical legal realists.
• These are:
▫ 1) the state has become the organization of the dominant liberal class;

▫ 2) 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

▫ 3) 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.
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.
RATIONALE AND JUSTIFICATION
FOR THE CENSURE
 THE 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.
 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-à-vis the legislative power and
vice versa.
 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:
1) over-dependence on legal rules; and
2) assumption that the legal order is non-partisan in the
adjustment of conflicting interests.
 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.
 JUDICIAL ACTIVISM
Justice Oliver Wendell Holmes
• “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 an politically accountable to them, not the
judges with an almost lifetime tenure, are the ones
to make, modify, change, or repeal legislation;
 JUDICIAL ACTIVISM
based on molecular to molar motion
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.
 JUDICIAL ACTIVISM

• 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 ACTIVISM
• Judicial policy-making dulls the cutting edge of
pure analytical reasoning.
• Analytical reasoning is replaced by political
reasoning whenever courts engage in udicial
policy-making.
• When the emphasis on determinate rules are
diminished in the adjudicative process the result
is NOT LAW BUT POLITICS.
IDEALISTIC AND CYNICAL 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.
IDEALISTIC AND CYNICAL CONCEPTS OF
DEMOCRACY
• 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
 TRANSFORMATION OF THE LIBERAL
LEGAL ORDER

• two basic means for transforming the liberal

legal order dominated by avid capitalism:
1) the norm of positive equality; and
2) the norm of democratic republicanism.
 POSITIVE 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.
 POSITIVE EQUALITY
….NOT HYPOTHETICAL BUT CATEGORICAL
EGALITARIANISM.
-- Justice Jose P. Laurel

• DIMENSIONS OF POSITIVE EQUALITY:

• 1) equality of opportunity;
• 2) equality before the law;
• 3) equality between values given and received; and
• 4) the equable sharing of social and material goods
on the basis of efforts exerted in their production
 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
 DEMOCRATIC REPUBLICANISM
• NOT BE ONLY REPUBLICANIZED
▫ established and organized for the purpose of
deconstructing the liberal order
• 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 people’s enjoyment of
their basic rights and primary entitlements is possible.
TRANSFORMATIVE CONTENT OF
POST-LIBERAL ORDER
TRANSFORMATIVE CONTENT OF POST-
LIBERAL ORDER
• two considerations that must be taken into
account in the conceptualization of the
transformed socio-legal order:
▫ 1) the post-liberal socio-legal order must not fall
hostage to any faction therein; and
▫ 2) the transformed socio-legal order must always
be alert for opportunities to eliminate divisions
and hierarchies in society
TRANSFORMATIVE CONTENT OF POST-
LIBERAL ORDER

• Three transformative contexts:

1) the decentralization of government;
2) the reorganization of the market economy; and
3) the reconstruction of the system of rights
DECENTRALIZATION OF GOVERNMENT
• ELEMENTS:
1) accountability
2) devolution
3) effective and efficient decision-making
4) responsible and accountable party
government
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.”
RECONSTRUCTION OF THE SYSTEM OF
RIGHTS
• In the post-liberal socio-legal order, new
concepts of rights are introduced. These are:
1) the “resistance right”;
2) the “destabilization right”;
3) the “solidarity right”, and
4) the “market right.”
“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.
“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
“solidarity right”

• gives every member of the society the right to

exact the performance of the entire interests or
responsibilities of a group in order to enjoy
along with others the unified life of society.
“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.
NATURE AND FUNCTON OF LAW
NATURE AND FUNCTION OF THE 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