This article is focused on x-raying the stand of the realist philosophy/school of thought in law, as it relates to its superiority over other schools of thought in the field of jurisprudence, and in the Nigerian legal system.
Although a definition of law has been given previously, it is at best an ad-hoc definition. It can be said that there are as numerous definitions of law as there are lawyers. This section deals with the understanding of law according to the perspectives of different people.
These views are subscribed to by people in a particular school of thought/jurisprudence. These school of thoughts/jurisprudence can also be rightly referred to as the different theories of law.
There are a lot of theories of law but only a few popular ones would be outlined. They are:
- The positivist school
- The pure theory of law
- Natural Law School
- Historical school
- Sociological School
- Utilitarian School
- Functional School
- Realist School
The aim of this paper is to look at the various schools of thought with special reference to Realism and its superiority over other schools.
Realism; contextual definitions: Realism in its generic sense or in the art sense of it, the effort by artists to represent objects truthfully as they appear without any speculative or artificial details. This art meaning of it, goes a long way in influencing the other usages of realism even as it concerns the field of law or jurisprudence.
In law, realism is a legal movement which originated from the United States of America, which postulates or argues that law should be seen as it is or as it is done in the law court, not as it ought to be or anything else. They argue that what transpires in the law court or what the judges do to arrive at their judgements and those judgements are the law. That is case laws.
The American realist philosophy was introduced by Oliver Wendell Holmes, who is regarded as the father of the American movement. Holmes was not satisfied with the mathematical or formalized/static laws and with the notion that the general rules of law as made by the legislature could provide solutions to particular cases as they appear. Thus, he gave credence to the role of extra legal factors and other minute influences that judges consider which should be actually regarded as law. This evolution, the realist philosophy, started in 1897.
In the emerging days of the realist philosophy, it received a lot of followers who in their varying capacities gave definitions to suit their understanding of the new school. According to Jerome Frank, “law is what the court has decided in respect of any particular set of facts; prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide, and this cannot be treated as law unless the court so decides by its judicial pronouncement”. Furthermore, Roscoe Pound sees law as the accurate recording of things as they are, as contrasted with things as they are imagined to be. To cap it all, Friedman goes further to state that the realist school evaluates any part of law in terms of it’s effects.
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Table of Content
Other schools of thought in Law and their criticisms
The natural school: This school of thought has many proponents, ranging from Thomas Aquinas, Socrates, Aristotle, Cicero, John Finn, St. Augustine etcetera, who believe that there is a universal law from a supernatural being which is discovered by reason or rationalization. It also derives its assertion from the notion that nature is perfect, and humans should behave and be guided by it in their distinction between what is good and evil.
According to Thomas Aquinas (1224-1274 BC), law is an ordinance of reason for the common good, made by him(God) who has care of the community. He went ahead to state that, “the light of reason is placed by nature, and thus by God in every man to guide him in his acts”.
Furthermore, Cicero postulated that the test of law is whether it accords or follows the dictates of the law of nature.
However, this school of thought is criticized on the ground that most of its rules or postulations have no empirical ways of measuring them. That natural laws are not codified and cannot be made reference to for adequate usage. Also, it has been argued that the metaphysical disposition of natural law denies it its wide acceptance with regard to the atheistically nature of many people.
Positive school: The positivist philosophy believes in a formalized, static or mathematical form of law. They believe that law is made by a sovereign, who serves as the only source of its validity, who imposes both the law and it’s sanctions on the people while himself is exempted from the law. They presuppose that whenever the sovereign or sole authority lays down a rule or law, it is insignificant whether the law evinces the interest of the people or not; whether moral or not. Some of the proponents of this philosophy are, John Austin, Hans kelsen, H.L.A Hart.
The positive school has been criticized on the ground that, a law that goes against the will of the people leads to dictatorship, which will eventually result in civil disobedience or revolution.
Historical school: This school proposes that law is that which is made in accordance with the previous experiences of a particular people. That before a law is accepted, that it must not be alien to the people for which it is made; rather, it should be made from their history or past so as to mirror their interest.
Von Savigny(1779-1861), a proponent of this school is of the view that a particular system of law should be a reflection of the spirit of the people who evolved it; that is that a legal system should be a part of the culture of a people. To strengthen his view, he stated that ” law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality.
In criticism, it is argued that if all the legislations should conform to the past or history of the people, or be subject to the people, it will go a long way in hampering the proactive and progressive nature of the legislative body.
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Sociological school: This school has proponents like Roscoe Pound, Duguit etcetera. They are of the view that law should be made or studied in accordance with what it does or its effect in the society.
Roscoe Pound proposed that law should be functional and liberal in such a sense that it should always be ready to accommodate the societal development/changes; that law should not just be a systematic or formalized rule that is imposed on people.
This school has been criticized on the ground that no good system subjects its laws to the activities of the people; rather, the people should be guided by laws in their actions. Also, that there are no ready ways of determining the societal wave of activities at any particular time because of the usual disparity in interest.
The realist philosophy and how it is more superior in practice than other schools of thought.
The realist school is of American origin; however, its philosophy has been widely accepted in many legal systems across the world. This school had foremost proponents like Oliver Wendell Holmes, Jerome Frank, Karl Llewellyn etcetera. They are strongly of the view that law is no other thing other than the outcome of what happens in the court. They vehemently disassociated themselves from the view that law is a body of formal rules which are clearly stated and must be followed.
Practically, it seems that it is only the realist school that truly defines what the law is. This notwithstanding, the school recognizes the influence and contributions of other schools of thought in their attempt to define law, through the usages of judges who are shaped by the society they found themselves. However, they still insist on the inadequacy of other schools definitions of what law is.
In reality, anything that stands as law without judicial ratification through its judgement is actually tentative and only impersonates the real law as it is. To buttress this argument further, there are many situations where a supposed law was out rightly relegated to the background or discarded by the courts just because they didn’t meet the criteria of justice as is required. In such situations, what becomes of the legislature or positive philosophy?
However, scenarios like the above does not in any way mean that the court now usurps the powers of the legislature, but that it only acts as a check on the powers of the legislature in order to ensure that the interest of justice is represented at all times. But this evinces the question, whether the court is all knowing since it appears that it has the final say on every legislation?
The answer is in the negative. The reason being that the court does not always give judgements in accordance with the personal backgrounds or beliefs of the judges; rather, it is usually guided by the legislations which helps it in deciphering the legal possibilities of the legislations in relation to the particular case at the time. And even if the court gives judgements in line with the personal beliefs of the judges, there are always rooms for appeal.
With regard to the natural law theory, there have been criticisms on the ground that it imposes the belief in some supernatural being on individuals, while at the same time making the dangerous assumption that all human beings are reasonable at all times in order to differentiate between what is good and evil. It is also criticized in that there are no ways of knowing what the law is at all times.
In comparison, realist philosophy has always provided clear and measurable ways of identifying what the law is at all times through case laws put in law reports. And even if there are no means of measuring what the law is, the court is always ready and willing to answer any question as regards the validity of a legislations or behavior. Also, on the presumption of all time reasonableness by the natural law school, the realists find it abnormal. When either an insane or a sane person is brought before a court to determining the legality of their of actions, the court in regard with the circumstances decides the law and this goes on to affect other insane and sane persons at large.
With regard to the positivist theory which has been criticized on the ground of being too formal and rigid to the extent of not protecting the interest of the citizens, and in other cases only displaying the whims and caprices of law makers; the realist school seems to be more representative. In that it does not impose the law out rightly on the people; rather, it brings in the people, who are present to see how their laws are made through their argument.
With regard to the historical theory which argues that the law should be a representation of the past experiences of the people as seen in customary laws; there is no gainsaying that there are loopholes in their assertion. This is on the ground that there are no measurable ways of knowing what the law is as is exampled in vague customary laws. And their definition of what the law should be tends to make the law unprogressive and non developmental.
In respect to the sociological school’s position that law should be seen in the light of its effect in the society, that it should always be ready to accommodate the societal changes. The question is, how does one determine the day to day societal changes?
And who would do the determination or finding? In the realist philosophy, there is accommodation for the citizens or parties to bring their differences or questions as regards societal changes to the court, to served as a determiner on their rightfulness or wrongfulness.
Realist philosophical superiority as evidenced in the Nigerian legal system
To further concretize or solidify the assertion that the realist law philosophy is the theory of law that appears to accommodate a thing of every other school of thought, thus becoming the most relevant and feasible theory of law, there have been instances in Nigeria where the realist school showed its superiority.
In Uzodimma v COP (1982) 3 NCLR 325, the appellant was tried and convicted of stealing by an area court which refused to grant him a counsel to defend him because section 390 of the CPC denies lawyers right to appear before it. On appeal, the high court of Benue state declared section 390 null and void on the ground that it denies one the freedom or right to be represented by a legal practitioner of his choice.
Also, in Attorney General of Info State v AG federation and 35 Ors (2002) 1036, 1083-1084, the supreme court declared sections 26(3) and 35 of the independent corrupt practices and other related offences Act 2000 unconstitutional, null and void.
In Ukeje v Ukeje (2014) 11 NWLR (PT.1418) 384, the supreme court declared a historic antecedent of non inclusiveness of the females in the distribution of property of the Igbo culture violative of the right to no discrimination. This culture in line with the historical theory should be law.
It is now obvious that the realist theory in a practical scenery has a tinge of supremacy over other theories of law. This school has a thing of other schools of thought, as seen in the possibility that judges would believe in a supernatural being and be guided by reasonableness in their decisions as stated by the natural theory. And that the judges may be guided by the formalized legislations as propounded by the positivists in arriving at their judgements, and may also be influenced by their historical or sociological environment in giving judgement.
However, with all these possible entanglements, it is imperative to mention that the realist theory of law will still be practicable in itself even without any influence by any or other theories of law. This feat cannot be achieved by other schools of thought, and instead of calling their theories law definitions, legal theories would be better.
C.C., Ochiabutor, and “introduction to legal method in Nigeria” (United kingdom: wild fire publishing House,2012)
About the Authors
Casmir Ugwu is a 300 level law student of the University of Nigeria, Enugu Campus, who is aspiring to build a niche/ fortress in legal writing. This article was birthed as a result of my unconventional thoughts, and strong belief in the realist jurisprudence, and law in its totality. The article tends to help researchers in the field of jurisprudence have a picture of the numerous criticisms of the various schools of thought. This is not one, but I am also a freelancer.
Owen is a 300l Law student with penchant for writing and research, he hails from Anambra state Nigeria, His skill and tact in solving research problems have gained him numerous positions which include but not limited to Research Assistant, International Legal league.