By Miriam Maina LLB
Abstract.
The
objective of this essay is to assess the Realist school of thought and its
dependence on the judge as the ultimate law maker, based on particularly the
contributions made by Justice Benjamin Cardozo. More importantly, it seeks to
elaborate to what extent it agrees with the theories advanced by the said jurist,
and what different prepositions can be put forward, and the authorities
informing these differing opinions. Finally, it will look into the
inconsistencies that water down the probative value in other jurisprudential
schools of thought, and distinctly, the positivist approach taken by Hans
Kelsen. The objectives stated above will be tackled in two sections, where the
first will develop the realist school of thought exclusively, and the second
will look into Kelsen’s approach and the inconsistencies thereto.
Introduction
The
realist school of thought advances the idea that the law is not codified rules,
directives and principles. [1]The
law here is the prophesies of what the court will do in fact[2],
i.e. the behavior of the judiciary. Subsequently, this school does not analyze
legislation as done in other schools such as the positivist school, but lays
emphasis on the judge as the law maker.
Section I: Justice
Benjamin Cardozo’s contribution to Realism, and to what extent this paper agrees
with these contributions
Like
other realists, Justice Cardozo advanced the view that the law did not only
comprise of determinate rules, but rather it was highly contingent upon
extraneous influences of the particular judge. According to him, the judicial
processes that interpreted the law are not supposed to stand in isolation, but
should be alive to social realities. In fact, these social realities ought to
be central to the art of judicial adjudication. This position develops both the
realist and sociological schools of thought. Justice Cardozo also favors the
approach that every judicial system should not only reflect the nature of the
present society, but also that of the judge. He argues that the judge’s
sympathies, conscious and unconscious should be taken into account when
analyzing a court process. This input is invaluable to the realist school, but
a differing opinion is inevitable especially regarding the extent to which
factors such as the sympathies of the judge should reflect in a judicial
process.
It
is a widely recognized fact that an impartial ruling should be based on no
other factor other than the law and the facts of the particular circumstance.
Nonetheless, judges are given an extent of discretion to apply the law
liberally in order to enable them arrive at the best answers for the legal
questions at hand. The predicament that arises then from Cardozo’s work is, at
what point and to what extent should these sympathies affect a judicial
finding? Should a judge’s ruling be hinged upon his political, social, and/or
economic preferences or affiliations? In solving this dilemma, issues of
consideration should be the peculiarities and uniqueness of each situation that
is brought for adjudication before the courts. In that regard, the law should
be applied with the intent of providing the best available answer for the
present legal questions.
This
paper concedes to the fact that the “right answer” to every scenario is not
written down in any particular legislation or scholarly works, and hence the
need for discretion and limited deviation from the realm of the law to other
considerations. However, it is vital that this deviation is controlled. It is
hereby argued that Ronald Dworkin put forward the most befitting antidote to
this complexity. In progressing his “Right answer” theory, he cautions that there
exists a right answer to every legal problem, and this answer is informed by
reason, and requirements of fairness and justice as dimensions of morality.
This yardstick considerably limits the said discretion, and in the alternative
lays down the preconditions to govern discretion.
Section II;
Inconsistencies in Kelsen’s Pure Theory of Law.
Hans
Kelsen, a positivist, put forward his pure theory of Law, arguing that the law
ought to be eliminated from everything that is strictly not law; its aim is to
free the science of law from alien elements[3].
This “alien elements” could include politics, economics, morality, justice etc.
This theory has the effect of placing the law in a vacuum, where it should
supposedly regulate and govern society, without getting acquainted with
societal attributes and qualities. In other words, society should dance to the
law’s tune, instead of the other way round. But weren’t social and societal
interactions the reason why the law arose? And as such, the law should fit into
society and not society fitting into the law. Put differently, separating the
law from the inherent characteristics of society makes it rigid and blind
adherence to such law has the inevitable consequence of injustices.
Basing
this argument on the realist approach developed earlier, it is the role of the
judge therefore to determine when to apply the law in it pure form i.e. without
consideration of “foreign” factors, and when to be liberal and allow influences
of justice and morality to reflect in his judicial conclusions.
Conclusion.
A
judge’s discretion has to be guided by certain considerations, for instance
justice and reason, especially when the law and facts at hand are uncertain.
This is to ensure that the results of judicial processes yield solutions to the
legal questions that arise.
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