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Pragmatic Jurisprudence Explained

Get Real Theory focuses on pragmatically implementing laws based on practical experience rather than technicalities. It tells legal practitioners to consider real human factors overlooked by strict law. Legal realists oppose legal positivism and formalism, focusing instead on empirical examination of how law influences human behavior. Notable proponents include Oliver Wendell Holmes Jr., who argued judges are influenced by fairness and policy rather than deductive logic. Holmes' "Bad Man" perspective views law from consequences rather than morality. This instrumental view of law separating legal and moral elements influenced refuting mechanical legal reasoning.

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John Hoover Arrojado
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436 views2 pages

Pragmatic Jurisprudence Explained

Get Real Theory focuses on pragmatically implementing laws based on practical experience rather than technicalities. It tells legal practitioners to consider real human factors overlooked by strict law. Legal realists oppose legal positivism and formalism, focusing instead on empirical examination of how law influences human behavior. Notable proponents include Oliver Wendell Holmes Jr., who argued judges are influenced by fairness and policy rather than deductive logic. Holmes' "Bad Man" perspective views law from consequences rather than morality. This instrumental view of law separating legal and moral elements influenced refuting mechanical legal reasoning.

Uploaded by

John Hoover Arrojado
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Get Real Theory

Get Real Theory is a postulate of which intends to pragmatize the application of laws. It
tells the law and the law practitioners to get real, and asks whether the law can be
implemented and verified by means of practical experience.

The Realist school, the Legal Realism, or sometimes called the Pragmatic Jurisprudence
and any of their similar school of thoughts, in a broad sense, focuses on human realities
that are overlooked by hard law, technicalities, and abstract policies. They conceive
legal phenomena as psychical phenomena, and notably, as a form of moral motivation
of human behaviour. (Bad Man Perspective vs. Good Man Perspective)

Legal realists are opposed to most versions of contemporary legal positivism, the legal
formalism, and the natural law traditions.

Proponent / Forerunners:
Roscoe Pound, John Chipman Gray, and Benjamin Cardozo are among the few
proponents, who forcefully criticize formalist approaches. John Dewey had held up
empirical science as a model of all intelligent inquiry. He argued that the law should be
seen as a practical instrument for advancing human welfare. But the most notable
proponent is Supreme Court Justice Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr. contributions


Prediction Theory of Law
Utilitarian approach to legal reasoning
His insistence that judges, in deciding cases are not simply deducing legal conclusions
with exonerable, machine-like logic, but are influenced by ideas of fairness, public
policy, and other personal and conventional values.

Bad Man Model of Law


It states that in crafting a law or deciding a case, always think from the perspective of
the Bad Man, and not the Good Man. Because the bad man will only care for the
consequences of the law, and what the courts will do to him, the rest is irrelevant.

Holmes explained that nearly every man wants to avoid disobeying the law when
confronted with disagreeable consequences, and not all will obey the law for its sake
even if without consequences.

The Bad man perspective is a better way to ensure that everyone will obey.
Key Themes

1. A distrust of the Judicial technique of seeming to deduce legal conclusions from


so-called rules of law. The realists believe that judges neither do nor should
decide cases formalistically. Law is incurably indeterminate.
2. A belief in the instrumental nature of law. The realists believe that the law does
and should serve social ends.
3. A desire to separate legal from moral elements of the law. The realists were
legal positivists who believed that law should be treated scientifically/empirically.
A clear distinction should be drawn between what the law is, and what should it
be.

Criticisms:

1. Realists exaggerated the extent to which the law is riddled with gaps,
contradiction and so forth.
2. Most legal questions have a clear simple, clear cut answers.
3. Attempt to separate law and morality.

Influence and relevance:

To refute formalist or mechanical application of notions of laws and legal reasoning, as


it is widely accepted today that law is not, and cannot be, an exact science, and that it
is important to examine what judges are actually doing in deciding cases.

Example: Ebralinag et al. vs. Amolo et al. (the Jehovah’s Witness members refusal to
attend the flag ceremony case)

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