University of the East

College of Law
Academic Year 2019- 2020

Realist Theory of Law

July 13, 2019

Submitted by:

Abdulsalam, RaiHanah

Belgica, Jhee Ann

Duyan, Patrisha

Maningding, Marc Justin

Tiu, Denn Marc

 Table of Contents

I. Introduction ................................................................................................... 1

II. History .......................................................................................................... 2

III. Philosophers of Theories in Realism .................................................................. 2

Justice Oliver Wendell Holmes .......................................................................... 2

Jerome Frank ................................................................................................. 3

Joseph Bingham ............................................................................................. 3

Axel Hagerström ............................................................................................ 4

IV. Cases............................................................................................................ 4

Miranda v. Abaya ........................................................................................... 4

People of the Philippines v. De Guzman ............................................................. 5

People vs Orita ............................................................................................... 6

V. Criticisms ...................................................................................................... 7

VI. Bibliography .................................................................................................. 8

 I. Introduction

Legal realism, also known as ‘pragmatic jurisprudence’, is focused on the influence of

practical experience in law as well as the question of its implementation.1 Realism as a theory
of law reached its prominence in the first half of the 20th century in America.2 This theory
argues that in deciding for cases, human factors and realities must be taken into
consideration.3 This theory of law is skeptical about the mechanical and logical model of legal
reasoning, thereby rejecting the mechanical jurisprudence and the faith that legal reasoning
is determined by means of logical deduction. 4 It brings significance into the question of
implementation and whether practical experience is considered or reflected in the law.5 In
addition, it emphasizes the effects of values, background and other social forces that affects
the judge’s idea of justice which, in turn, is reflected in the court’s decisions.6

Realism is founded by two prominent persons: John Chipman Gray and Oliver Wendell
Holmes, Jr. using John Dewey’s theory of inquiry as well as William James’ pragmatism. John
Dewey’s philosophical framework of experimental logic as a theory of inquiry states that there
is no absolute first truths that can be found, thus inquiries are needed in order to start a self-
corrective process that will lead into a clearer epistemological status of the starting point and
conclusion.7 The attitude of looking away principles as well as priori reasoning and focusing
in the consequences greatly influenced realist theory of law was adopted by realism from
William James’ pragmatism.8 Together, this shaped the approaches and principles of realism.

Realism has a great variety of principles. One of these principles is pioneered by John
Chipman Gray who defines law as the rules of conduct that determines the legal rights and
duties of citizens and are formulated by the judicial organs. By using the facts and their
corresponding rules based on their legal consequences, a judge decides the case and this is
considered as a law.9

Another principle of realism advanced by Karl N. Llewellyn believes that law is what the
state authorities do about disputes.10 According to Karl N. Llewellyn, there are nine key
features in the realist movement. These are: (1) the constant in flux of law as a judicial
creation, (2) the law, its purpose as well as its effects need to be continuously studied as it is
considered as a means to social ends, (3) the law has to be continuously studied as the society
is changing faster than the law, (4) separates ’what is’ and ‘what is ought to be’ for study
purposes, (5) emphasizes rules as generalized predictions on what the courts will do, thereby
rejecting traditional rules and concepts used to describe what courts and the people are

1
Nicolo F. Bernardo & Oscar B. Bernardo, O. B., Philawsophia: Philosophy and Theory of
Philippine Law (Quezon City: Rex Printing Company, Inc, 2017), pages 65-68
2
Susan Dimock, Classic Readings and Cases in Philosophy of Law (New York: Pearson
Education Inc., 2007), page 36-51
3
Bernardo & Bernardo, Philawsophia: Philosophy and Theory of Philippines Law, 2017,
apges 66-68
4
Ibid.
5
Bernardo & Bernardo, page 67
6
Ibid.
7
Surya Prakash Sinha, Jurisprudence: Legal Philosophy in a Nutshell (St. Paul, Minnesota:
West Publishing Co., 1993), page 258
8
Ibid.
9
Neil MacCormick, Political Frontier of Jurisprudence: John Chipman Gray on the State,
from Cornell Law Review Volume 66 (June 5, 1981) Available at:
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4249&context=clr
10
Sinha page 261

Page 1
 actually doing, (6) rejects the traditional prescriptive manner of rule-formulations as the only
factor in judicial decisions, (7) believes that grouping legal situations and cases into narrower
categories in the past is crucial, (8) evaluates portions of the law based on their effects, and
(9) insists that a sustained and programmatic attack on the problems of law is the proper
approach.11

II. History

The American legal realist movement first arose as a cohesive intellectual force in the
1920s, drawing heavily upon a number of prior thinkers and was influenced by broader
cultural forces. Yet it was only in the early years of the twentieth century that formalist
approaches to the law had been forcefully criticized by thinkers such as Roscoe Pound, John
Chipman Gray, and Benjamin Cardozo. Philosophers such as John Dewey had held up
empirical science as a model of all intelligent inquiry, and argued that law should be seen as
a practical instrument for advancing human welfare. Outside the realm of law, in fields such
as economics and history, there was a general "revolt against formalism," a reaction in favor
of more empirical ways of doing philosophy and the human sciences.12 But by far the most
important intellectual influence on the legal realists was the thought of the American jurist
and Supreme Court Justice Oliver Wendell Holmes, Jr.

Justice Oliver Wendell Homes was an avowed proponent of judicial legal realism, thus
his metaphor of law as a “magic mirror”. He is a son of an aristocrat who later on joined the
army during the American Civil War where he suffered repeated injuries which “cured him of
social illusions” about life. After leaving the army, he decided to enter the Harvard Law School
which later on materialized giving him an illustrious career. When he joined the US Supreme
Court he became “the Great Dissenter” who penned minority opinions later adopted and cited
as jurisprudence.13

Legal realism flourished further during the 1920s and 1930s when Roscoe Pound, a
professor from Harvard Law School, and Karl Llewellyn, a professor from Yale Law School,
published a series of articles debating the nuances of the movement. Although the movement
declined after World War II, it continues to influence how judges, lawyers, and laypersons
think about the law.

Legal realism is not a unified collection of thought. Many realists, like Pound and
Llewellyn, were sharply critical of each other and presented irreconcilable theories. Yet, five
strands of thought predominate in the movement. The strands focus on power and economics
in society, the persuasion and characteristics of individual judges, society's welfare, a practical
approach to a durable result, and a synthesis of legal philosophies.

III. Philosophers of Theories in Realism

Justice Oliver Wendell Holmes

Holmes Jr. was born on March 8, 1841. He fought on the Union side in the American
Civil War for three years. He served in the Supreme Court for nearly 30 years, from 1902-

11
Ibid.
12
Neil Duxbury, Patterns of American Jurisprudence. New York: Oxford University Press,
1995, ch. 2
13
Bernardo & Bernardo 2017

Page 2
1931.14 Holmes believed that the law should be defined as a prediction, most specifically, a
prediction of how the courts behave.15 His rationale was based on an argument regarding the
opinion of a “bad man.” Bad men, Holmes argued in his paper entitled ‘The Path of the Law’,
care little for ethics or lofty conceptions of natural law; instead they care simply about staying
out of jail and avoiding paying damages. In Holmes’s mind, therefore, it was most useful to
define “the law” as a prediction of what will bring punishment or other consequences from a
court.16 He also wrote that “a bad man has as much reason as a good one for wishing to avoid
an encounter with the public force, and therefore you can see the practical importance of the
distinction between morality and law”.17 Nearly every man wants to avoid the disagreeable
consequences of disobeying the law, but not all want to obey the law only to obey it.

Jerome Frank

Jerome Frank is a Realist who considered law as a decision of the court brought about
by a set of facts, thereby producing a law about these set of facts. 18 According to Frank, laws
may vary depending on the personality of the judge who decide on a case, and factors such
as peculiar traits, disposition, biases, and habits of a judge affects his decision to the law.19

His principle divided the realists into two groups: the Rule Skeptics and the Fact
Skeptics. The Rule Skeptics focuses on the nature and uses of legal rules 20 and they believe
that a detailed study of previous court decisions can determine a pattern for greater uniformity
and predictability of legal rules.21 On the other hand, the Fact Skeptics like Frank believe that
the uncertainties of fact finding is the major cause of legal uncertainty. 22 They believe that
the courts must decide based on what facts are, which needs a nonmechanical judgment on
the part of the court.23

Joseph Bingham

Another principle of realism speaks about law being a summary of potential legal effect
as well as considerations weighed by courts in the decision of cases.24 This is the stance of
Joseph Bingham, who in his earliest writings published critical analyses regarding the common
law of property and of torts and their inherited procedural norms.25 According to him, there
are three aspects of judicial generalization that must be weighed and analyzed together with

14
Biography.com Editors. (2019, May 4). Oliver Wendell Holmes Jr. Biography. Retrieved
July 12, 2019, from The Biography.com: https://www.biography.com/law-figure/oliver-
wendell-holmes-jr
15
Sinha pages 260-262
16
Bernardo pages 66-68
17
Oliver Wendell Holmes, Jr. (1897). The Path of the Law. Retrieved July 11, 2019, from
Constitution Society: https://www.constitution.org/lrev/owh/path_law.htm
18
Sinha page 264-266
19
Ibid.
20
Jorge Coquia, Readings in Legal Philosophy and Theory. (Manila: Rex Bookstore, Inc.,
1993)
21
Dimock page 36-51
22
Ibid.
23
Ibid.
24
Ibid.
25
Harry N. Scheiber, Taking Legal Realism Offshore: The Contributions of Joseph Walter
Bingham to American Jurisprudence and to the Reform of Modern Ocean Law, 26 Law &
Hist. Rev. 649 (2008). Available at
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1592&amp=&context=facp
ubs&amp=&sei-redir=1&referer

Page 3
other facts in order to determine their causal efficiency in inducing the decision: (1) it should
often provide a summary of history of the past decisions, (2) it predicts legal consequences
that can define the decisions, and (3) judicial generalization may be considered as elements
that cause decisions.26

Axel Hagerström

Realism has another type of theories: the Scandinavian theories of law, a philosophical
critique about the metaphysical foundations of law using psychological approach or a
combination of the behavioral and psychological approaches and rejects natural law and
analytical positivism.27 The main proponent of this type of theory is Axel Hagerström, who
believes that law is a conative impulse that affects the people’s mental processes or behaviors
by giving them a feeling of duty and thereby driving him to act in a particular way. 28 However,
this type of theory is difficult to be applied since viewing law as an expression of sociological
probability is difficult for the common human being to accept. In particular, a judge cannot
accept this theory as he cannot provide a decision by merely calculating the probable social
reactions from his actions.29

IV. Cases

Miranda v. Abaya30

Jose Miranda, an incumbent mayor of Santiago City, Isabela, filed a certificate of

candidacy for the same mayoralty post for the May 11, 1999 elections but was denied and
disqualified upon private respondent, Antonio Abaya's petition to cancel his certificate of
candidacy filed in Comelec. Beyond the deadline for the filing of candidacy, Joel Miranda filed
his certificate of candidacy as a substitute for his father whereby he won against private
respondent. Consequently, private respondent filed a petition to declare the petitioner's
certificate of candidacy as void since the certificate of Jose Miranda, whom Joel Miranda
substituted, had already been denied. Petitioner sought the court for a petition for certiorari
upon the nullification of the Comelec of his substitution.

The issue herein is whether or not the petitioner's certificate of candidacy is void. The
Court ruled that despite the petitioner's reliance on the provisions stated in Section 77 of the
Omnibus Election code whereby a person of the same political party may file his certificate of
candidacy and substitute an official disqualified candidate, the Court ruled pursuant to Section
73 of the same code that a person shall only be eligible for any elective public office if he files
a sworn certificate of candidacy within the fixed period of time. Jose Miranda's certificate had
been denied before he became an official candidate. Therefore, Joel Miranda substituted an
unofficial candidate and filed a certificate of candidacy beyond the fixed time which resulted
to the nullification of his certificate.

J. Panganiban’s dissenting opinion showed the relationship of this case with realism. The
cancellation of the petitioner's COC and his involuntary forfeiture of the mayoralty position
were based on logic. How would the petitioner run as a mayor if his certificate of candidacy
was cancelled due to his substitution of an unofficial candidate and his submission of the said
certificate beyond the deadline as required by law? It would seem that the petitioner did not

26
Sinha page 263
27
Sinha pages 273-283
28
Ibid.
29
Ibid.
30
Miranda v. Abaya, G.R. No. 136351, 28 July 1999

Page 4
substitute anyone at all but vied for a mayoralty position as if he was just a regular candidate.
However, logic is not observed under the Realist theory wherein the law should be in
accordance with the experience of the people. Joel Miranda should have been the incumbent
mayor because he was the choice of the people, and the proclamation of the vice mayor,
whom nobody voted for, as mayor of Santiago city went against the will of the people. When
a literal interpretation of the law dismisses the will of the people, it is vital that the Court
should be vigilant in preserving their sovereignty and should obey the said sovereignty in
which all government authority emanates from.

People of the Philippines v. De Guzman31

De Guzman was charged with the crime of Murder in the Information, dated
November 12, 2002, the accusatory portion of which reads:

“That on or about the 20th day of April, 2002 at around 11:00 o’clock
in the evening, in Brgy. San Francisco, Municipality of Sablayan, Province of
Occidental Mindoro, Philippines and within the jurisdiction of this Honorable
Court, the accused being then armed with a sharp bladed instrument, with
intent to kill, with treachery, did then and there willfully, unlawfully and
feloniously attack, assault and stab with the said weapon one Noriel Rosales
Urieta, thereby inflicting upon the latter serious wounds which caused his
untimely death.”
During the arraignment, De Guzman entered a plea of "Not Guilty" to the offense
charged. After pre-trial was terminated, trial on the merits ensued. The prosecution presented
the testimonies of Ignacio Flores (Flores), the childhood friend of victim Noriel Urieta (Urieta)
and the purported eyewitness to the stabbing incident; Dr. Ma. Socorro Ragos (Ragos), who
conducted a post-mortem examination on the cadaver of the victim; and Gina Urieta (Gina),
the wife of the victim. The defense, on the other hand, presented the lone testimony of De
Guzman.

This is an appeal from the February 9, 2010 Decision of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 03458, which affirmed the May 2, 2008 Decision of the Regional Trial
Court, Branch 45, San Jose, Occidental Mindoro (RTC), in Criminal Case No. R-5285, finding
accused Hermogenes De Guzman or Mong (De Guzman) guilty beyond reasonable doubt of
the crime of Murder defined and penalized under Article 248 of the Revised Penal Code and
sentencing him to suffer the penalty of reclusion perpetua.

In this case, the issues are: (1) whether or not the trial court gravely erred in giving full
credence to the inconsistent and doubtful testimony of the prosecution’s eyewitness, (2)
whether or not the trial court gravely erred in finding the accused-appellant guilty beyond
reasonable doubt of murder despite the eyewitness' failure to positively identify the former,
and (3) whether or not the trial court gravely erred in finding that treachery attended the
subject killing.

The Court denied this appeal and acquitted De Guzman as the Court has ruled that
evidence to be believed must proceed not only from the mouth of a credible witness but must
be credible in itself as to hurdle the test of conformity with the knowledge and common
experience of mankind. In the case at bench, the testimony of Flores, the lone eyewitness of
the prosecution does not bear the earmarks of truth and, hence, not credible.

In relation to realism, this case showed the time-honored test in determining the value
of the testimony of a witness is its compatibility with human knowledge, observation and

31
People of the Philippines v. De Guzman, G.R. No. 192250 (July 11, 2012)

Page 5
common experience of man. Thus, whatever is repugnant to the standards of human
knowledge, observation and experience becomes incredible and must lie outside judicial
cognizance. Furthermore, the reaction of Flores, in hurriedly going home and leaving Urieta
alone to die, was unnatural and contrary to common human experience. The seemingly
apathetic behavior displayed by Flores in leaving Urieta without even checking his condition
to see if he was still breathing and his failure to report the matter to the police or at least
inform the victim's family about what happened on the same night were highly inconsistent
with the natural/common reaction of one who had just witnessed the stabbing of his childhood
friend. The Court cannot accept a story that defies reason and leaves much to the imagination.

The failure of Flores to lend a touch of realism to his tale leads to the conclusion that he
was either withholding an incriminating information or was not telling the truth.

People vs Orita32

In the early morning of March 20, 1983, Ceilito Orita held Cristina Abayan at knifepoint
outside the latter's home and dragged her to the second floor while a balisong was poking
against her neck. Upon entering a room, the accused forcibly inserted his penis inside the
vagina of Cristina but only a portion of it entered the sexual organ. She managed to escape
by jumping out of a window and begged for help in the nearest municipal building despite
being naked. Although failing to apprehend the accused, the two policemen who responded
to her plea sent Cristina to a hospital for a medical evaluation wherein the findings state that
the vagina did not indicate any clear signs of penetration. The Regional Trial Court declared
the accused of having committed frustrated rape but the accused appealed to the Court of
Appeals, stating that frustrated rape cannot be a stage in the execution of rape. Consequently,
the judgement of the lower court was modified by the latter. The Court of Appeals issued a
resolution and forwarded the case to the Supreme Court.

The issue in this case is whether or not the accused is guilty of frustrated rape. The
court ruled that in the testimony of rape the victim's testimony is enough provided that the
testimony is clear and free from contradiction and her sincerity is free from suspicion. The
victim not only implied that she was raped, but also convincingly state how the rape was
committed pursuant to the provisions stated under article 335 of the Revised Penal Code,
thereby confirming the guilt beyond reasonable doubt of the accused in committing the act.
Furthermore, under Article 6 of the said Code, the commission of the rape did not classify
under the frustrated stage. When an offender acted upon the canal knowledge he has over a
victim and attained all the essential means in fulfilling it, the last stage of the act completes
the consummation. Although the vagina did not show any clear signs of penetration, the
moment the accused forcibly inserted his penis inside it, the final stage in the execution of
his carnal knowledge over the victim completes the consummation. The Court declared the
accused guilty beyond reasonable doubt and modified the decision of the Regional Trial Court
wherein the punishment for Ceilito Orita is reclusion perpetua and indemnity of P30,000.00
for the damages committed against Cristina Abayan.

In relation to the Realist theory, the Court recognizes that in rape cases, only the
persons involved can provide details about the commitment of the crime. The court ruled that
in the testimony of rape the victim's testimony is enough provided that the testimony is clear
and free from contradiction and her sincerity is free from suspicion.

The Court relied upon their insight regarding the human nature of a person in instances
when a presence of danger presented itself. This has been evident in the trial court judge’s

32
People v. Orita, G.R. 88724 (April 3, 1990)

Page 6
view of the Cristina Abayan’s act wherein she jumped out of a second-floor window. As cited
in this case:

“Common experience will tell us that in occasion of conflagration

especially occuring (sic) in high buildings, many have been saved by jumping
from some considerable heights without being injured. How much more for
a frightened barrio girl, like the offended party to whom honor appears to be
more valuable than her life or limbs?”
The victim’s act of running to the municipal building while being completely naked in a
desperate mean to distance herself from the danger and to seek aid was also considered by
the Court as a natural consequence instilled in her mind when the accused sexually violated
her at knifepoint. No sane person who is not in the presence of danger would do the same.
The Court also considered this act as an enough indication that something not ordinary
happened to her unless she is mentally deranged, in which she is not. The acts done by
Cristina Abayan was a natural consequence of rape committed by Ceilito Orita.

V. Criticisms

According to Sinha, one of the criticisms of Legal Realism is its failure to provide for a
universal definition of law as it can only be applied to those states whose method is case law,
wherein the judicial branch is not overwhelmed by legislative forces. 33 Also, by maintaining
that the law would stand still if rules decided cases, they have failed to consider that law
adapts itself to the changes in the environment by checking and discovering the meaning of
the legislator’s statutes and judge’s opinions would have meant. 34

33
Sinha pages 266-272
34
Ibid.

Page 7
 VI. Bibliography

Bernardo, N. F., & Bernardo, O. B. (2017). Philawsophia: Philosophy and Theory of Philippine
Law. Quezon City: Rex Printing Compan, Inc.
Biography.com Editors. (2019, May 4). Oliver Wendell Holmes Jr. Biography. Retrieved July
12, 2019, from The Biography.com: https://www.biography.com/law-figure/oliver-
wendell-holmes-jr
Coquia, J. (2005). Readings in Legal Philosophy and Theory. Manila: Rex Bookstore, Inc.
Dimock, S. (2007). Classic Readings and Cases in Philosophy of Law. New York: Pearson
Education Inc.
Duxbury, N. (1995). Patterns of American Jurisprudence. New York: Oxford University Press
Holmes, Jr., O. (1897). The Path of the Law. Retrieved July 11, 2019, from Constitution
Society: https://www.constitution.org/lrev/owh/path_law.htm
MacCormick, N. (1981). Political Frontier of Jurisprudence: John Chipman Gray on the State,
from Cornell Law Review Volume 66. Available at:
https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4249&context=clr
Miranda v. Abaya, G.R. No. 136351, 28 July 1999. Retrieved July 10, 2019, from The Lawphil
Project: https://www.lawphil.net/judjuris/juri2012/oct2012/gr_196804_2012.html
People v. Orita, G.R. 88724, April 3, 1990, Retrieved July 15, 2019, from The Lawphil Project:
https://www.lawphil.net/judjuris/juri1990/apr1990/gr_88724_1990.html
People of the Philippines v. De Guzman, G.R. No. 192250, July 11, 2012. Retrieved July 10,
2019, from The Lawphil Project:
https://www.lawphil.net/judjuris/juri2012/jul2012/gr_192250_2012.html
Peralta v. People, G.R. No 221991, August 30, 2017, Retrieved July 10, 2019, from Chan
Robles Virtual Law Library:
http://www.chanrobles.com/cralaw/2017augustdecisions.php?id=650
Sinha, S. (1993). Jurisprudence: Legal Philosophy in a Nutshell. St. Paul, Minnesota: West
Publishing Co.
Scheiber, H. (2008). Taking Legal Realism Offshore: The Contributions of Joseph Walter
Bingham to American Jurisprudence and to the Reform of Modern Ocean Law, 26
Law & Hist. Rev. 649 (2008). Available at
https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1592&amp=&conte
xt=facpubs&amp=&sei-redir=1&referer
Tua v. Mangrobang, G.R. No. 170701, January 22, 2014. Retrieved July 11, 2019, from The
Lawphil Project:
https://www.lawphil.net/judjuris/juri2014/jan2014/gr_170701_2014.html

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