Critical Legal Realism

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 postliberal 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 farreaching 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 POSTLIBERAL 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 POSTLIBERAL 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