FACULTY OF LAW, UNIVERSITY OF COLOMBO

Jurisprudence
Realism theory of law and skepticism
 University of Colombo

Faculty of Law

Bachelors of Laws- year 2013-2014

Jurisprudence

Question :-

Based on the premise that a statute becomes law only when the court interpret it , some
American realists argue that legal uncertainty resides principally in paper rules while some
other maintain that the exclusiveness of facts cause the uncertainty.

Select two diverse judgements that involve same area/areas of law or two diverse judicial
opinions in a case and analyse the cause/s for the difference of opinion in light of the
‘skepticism’ mentioned in the statement above.

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Content

1.1 Overview of American Realism---------------------------------------- 04

1.2 The approach of Rule skepticism---------------------------------------06

1.3 The approach of Fact skepticism---------------------------------------06

2.1 Judicial precedent and the predictability of the Law----------------08

3.1 Conclusion-----------------------------------------------------------------08-10

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Overview of American Realism

Basically, Legal realists especially concern with ‘law in action’ rather than with ‘law
in paper’. And it primarily focuses on what lawyers and judges in fact do in the course of
their practice of the law. So realists believe law as ‘what the judge say it is and what is really
exists in the courts. Oliver Wendell Holmes 1was a profound believer in defining the law in
reference to what the courts actually said it was. This conception could be illustrated by his
famous statement that "the life of the law has not been logic: it has been experience '2 Gray3
went so far as to assert that even a statute is not law until a court interpret it4. Realists were
considered as first lawyers to undertake empirical social scientific research in to laws and
legal institutions.5And it is essentially the opposition of formalism which holds the
conception that judges decide cases on the basis of distinct legal rules and reasons.6

Realists aim at the greater legal certainty because the lawyers should be able to
predict for their clients the decisions lawsuits not yet commenced. Skepticism7 thinking under
the realism fundamentally complies with the uncertainty and unpredictability of the law and
generally used to cover the position that there is no such thing as certainty in human
knowledge.

1
(1841-1935)
2
(1930).2. HOLMES, THE COMMON LAW 1 (1881), file:///E:/heinonline.pdf Accessed
on 01st May 2017>>

3
John Chipman Gray (1839-1915)
4
As cited in the,M.D.A Freeman,‘Lloyd’s introduction to jurisprudence’, 6th edi, Sweet and
Naxwell,1994 pg 659
5
ibid
6
AMERICAN LEGAL REALISM Brian Leiter*

7
Skepticism, also spelled scepticism, in Western philosophy, the attitude of doubting
knowledge claims set forth in various areas. Skeptics have challenged the adequacy or reliability of
these claims by asking what principles they are based upon or what they actually establish. They have
questioned whether some such claims really are, as alleged, indubitable or necessarily true, and they
have challenged the purported rational grounds of accepted assumptions. In everyday life, practically
everyone is skeptical about some knowledge claims<https://global.britannica.com/topic/skepticism
accessed on 01st May 2017>

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 However there is a division of ideologies within the realism thinking of law
concerning the root cause for the unpredictability of the law. Jeromy Frank8 categorizes two
types of causes for the uncertainty and the indeterminate nature of the law as I. Fact
skepticism and II. Rule skepticism.9Rule skeptics pay more attention to the uncertainties of
the rules that makeup the law. Fact skepticts are concerned with the uncertainty of the
facts.10It is with these twin problematic reasons for the uncertainty and unpredictability of the
law that I will be primarily concerned here and which I will be discussing the above two
analysing it with the case Ghouse v.Ghouse11

The approach of Rule skepticism

Judge in a court trial is made up of two components firstly; the determination of the
facts and the determination of what rules should be applied to those facts.12 This is how we
could scrutinize the approach taken in the ghouse v ghouse13 in terms of rule skepticism. Rule
skeptists believe paper rules are unreliable to predict and there are ‘real rules’ behind the
‘paper rules’14 therefore it is hard to keep the certainty .This case illustrates how judges often
rely on policy principles not found in law books instead of using only statutory legal rules.

In this case the question of law has been emerged due to the impingement of two
conflicting laws; general law and a special law. In terms of this case the truncation of the
uncertainty has been marked because of contradictory nature of two paper rules. In Ghouse v.

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“Jerome Frank, who was not only a prolific writer on matters legal, but also an eminent
corporation lawyer, a government counsel,an administrator (a Commissioner and later Chairman of
the Securities and Exchange Commission), a law teacher, and a highly respected Judge of the United
States Court of Appeals for the Second Circuit from May, 1941, until his death in January, 1957”
JEROME FRANK'S CONTRIBUTIONS TO THE PHILOSOPHY OF AMERICAN LEGAL
REALISMJULIUS PAUL, file:///E:/heinonline.pdf Accessed on 01st May 2017>>

9
N(4) 841
10
Realism in legal theory, pg 97
11
SLR-1988 Vol.1-P25
12
N(4) 843
13
Ibid
14
N(6)

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Ghouse 15
the question of law that arises for decision on the undisputed fact ‘Is a child
adopted under the provisions of the Adoption Ordinance by a Muslim Couple, entitled to
succeed to the intestate estate of his adoptive parents?’. In the case there was a inconsistency
between the special law and general law Adoption of Children Ordinance No- 24 of 194116
and the Muslim Intestate Succession Ordinance No. 10 of 1931.The Section 6(3) of the
Adoption of children Ordinance declares that ;“upon an adoption order being made the
child shall for all purposes whatsoever be deemed in law to be the child born in lawful
wedlock of the adopter” and the child gets full entitlement to acquire any right, title or
interest in any property and become entitled to any succession but the Muslim law does
not recognize adoption and it postulates consanguinity to qualify oneself for intestate
succession.17

Chief Justice Sharvananda’s opinion was; Adoption of Children Ordinance being a

general law does not abrogate the special law set out in the Muslim Intestate Succession
Ordinance .However the maxim Generalia specialibus non derogant18 applied and the claim
of an adopted child to succeed to the estate of his adoptive Muslim parent failed as the
Muslim law did not recognise adoption. This illustrates that the uncertainty of the law created
with the application of paper rules, which could be justified under the ideology of rule
skepticism. The Chief Justice Sharvananda opined to get the aid of secondary rules of
construction, focusing on the uncertainty and the complexities which might be occurred in the
literal construction of two legal systems. The vagueness of paper rules intrinsically makes the
opportunity for judges to interpret a law in diverse ways and to draw on interpretative rules to
justify and to offer a valid basis for their judgment. This might consequent to understate the
predictability of the decision since the idiosyncrasies of judges might strongly affect on the
decision where the uncertainty exists in paper rules.

15
N(11)
16
Amended by No. 54 of 1943
17
N(12)
18
Latin maxim of interpretation: the provisions of a general statute must
yield to those of a special one.

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The approach of Fact skepticism

Fact skeptics believe that; no matter how precise or definite may be the formal legal
rules and no matter what the discoverable behind the formal rules it will be impossible
because the ellusiveness of the fact on which decisions turn ,to predict future decisions in
most lawsuits not yet begun or yet tried.19 Fact skepticism fundamentally means that the
rules are formal and certain, but facts are uncertain from case to case. The illusiveness of
facts thus the various prejudices of judges and jurors often crucially affect the outcome of a
case. Focusing on the fact skepticism ideology it is clear that the root cause of the Ghouse
case20 is that the adoption has been done by 'Muslim parents'. Therefore the issue which
should be addressed is; whether being a Muslim is a matter of fact? However ,it is an evident
fact that this issue would not be emerged if the adoption had been done by non Muslim
parents. At this point it could be argued that the facts of the case too influence to create the
uncertainty of the law. Frank acknowledges that the decision of any rule results from the
application of legal rule or rules to the fact of the suit and the uncertainty occurs due to the
diversity of facts of the case.21

The District court held that the Respondent was the sole intestate heir of the deceased
by virtue of the said adoption order. However the court of appeal highly concerned that there
is a question of law and ultimately decided Muslim law does not recognise adoption claim of
an adopted child to succeed to the estate of his adoptive Muslim parent failed. District court’s
opinion illustrates that the court have focused on finding and analysing the involving facts
and their elusiveness rather than oscillating between the two legal rules. However the court of
appeal principally concerned the ambiguiness and the vagueness of two conflicting legal
systems. Therefore this shows that, for upper courts there would be nothing to concern with
facts since, they have already found by minor courts.

Dissenting judgement of Justice Wanasundara highlighted that an adoption can

involve more than a legal relationship citing the case Cohen v. Minister22 such a child has all

19
N(11) , Pg 842
20
Ghouse v. Ghouse
21

22
- [2000] FCA 1875

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the rights and all the liabilities appertaining to a child born in lawful wedlock subject to the
exceptions. And the judge disagrees with the applicability of Generalia speciliabus non
derogant rule. However, If the court applied the principle ‘best interest of the child’ to solve
the above dispute the decision would take a totally different approach and the adopted child
would be entitled to the intestate succession of the property. And the court would not concern
the consanguinity to determine the property rights of the adopted chils.Either the uncertainty
lies with facts or with the paper rules the ultimate decision lies with the hands of judiciary to
apply the principles to give effect to their decision.

Muslim law believes that adoption is inconsistent with the truth. The dissenting
opinion of justice Wanasundara’s emphasis on that was Muslim law do not recognize the de
jure adoption of children but there is nothing in the Muslim law which sets out that a Muslim
family must be confined to devolve property on the blood relationship and if the adopter had
donated or transferred upon an instrument or a deed that would be a valid transaction and
questioned the justification of happening the same thing upon intestacy. On the other
hand, adopting a child by Muslim parents, not transferring the properties to the adopted child
through a deed or a last will could be identified as facts which has created complexity to
apply the law. Facts skeptists would argue that it was the above facts of the case which made
uncertainty to apply formal paper rules. Further; this illustrates that the decisions of the courts
are buttressed by the predilections and attitudes of the judiciary depending on the facts of the
case. According to Llwellen Traditional jurisprudence failed to investigate one of the most
important aspects of America legal system; the certainty and the justice. (suri)He
acknowledges on the ‘grand style way’ which gives judges the autonomy to reshape the law
according to the wisdom .Some argues that the infirmity found in this grand style way is its
‘flexibility’ or the wide discretion which gives judges to use rules in an arbitrary manner.
(decisions in light of the life wisdom) (suri)

Judicial precedent and the predictability of the Law

As well as one of the cardinal feature of realism lies with judicial precedent. Realists’ focuses
on the judicial precedent as a main source of law but the outcome might not always be
consequent to accomplish the justice. Especially when it comes to secular matters like
Ghouse case; the understanding of the fact skepticism can justify the uncertainty which
occurs with matters concerning various cultural and secular issues. Realists never made

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explicit their philosophical presuppositions, about the nature of the law.23Hence it always
shows a comparative, uncertain and unforeseeable image which epitomizes the indeterminacy
nature of the law.

With regard to this case, even though there is a contribution of the facts of the case to
create the uncertainty, the impingement of two legal systems have affected to create the
innermost uncertainty and the complexity .Because the property rights of the adopted child
was decided by means of secondary rule of construction as the criteria to select the paper rule
which should be applied for the case. The case fundamentally exemplifies the ‘rule
skepticism’ since the debatable matter of law was selecting a law from two conflicting legal
systems.

Australian law- ‘child welfare Act’

Conclusion

What was far important was to arrive at a theory of Law, which was fortified by the
faithfulness of empirical experience. Therefore the realism is a pragmatic movement which
bring the law in to more practicable arena. And the absolute skepticism emphasises that one
does not absolutely know anything to be either true or false.

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In the case Ghouse v. Ghouse if the court used the literal interpretation of Adoption Act
would be an abrogation of Muslim law. Therefore it is evident that this has created an
uncertainty of the law when when it comes to determine what the law should be applied when
two legal systems conflicts each other. From this we could realize the confusing issues of
realism such as; Is there a certain answer to legal questions, or are there instead only
different, subjective opinions? Are past precedents of the court, statutes, and other legal

23
AMERICAN LEGAL REALISM Brian Leiter*, Forthcoming in W, Edmundson & M. Gokling
(eds.), The Blackwell Guide to Philwophy ofLow and Legal Theory (Oxford: BlackweD, 2003),
http://ssrn.com/abstract id=339562>> accessed on 01srofmay 2017>>

24

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materials sufficient to determine the correct legal outcome in a given case? Or is it instead
merely a matter of a particular judge’s political opinions.

However the general understanding is that if the court concern on the specific facts of the
case the justice could be succeeded. In most of the cases, if the judge thinks that there is a
vagueness or ambiguity of the law the judge would use other common rules or equitable
principles as the criteria or to support his judgement rather than applying the literal
interpretation of the existing law. In most of the cases the issue lies with the application of
laws to specific lawsuits, however in Ghouse case the determination of the judge gave effect
in the process of selecting the proper rule which should be applied for the case. In the case
the sole criteria for the judgement was generalia speciliabus non derogant rule. However it
leaves the doubt whether the court was succeeded in accomplishing the justice.

It is evident that the American realism fundamentally focuses in gaining a better factual
understanding of what the law of and how it works. And realism just not explain about the
law, but it focuses on the making the law better to serve the social purpose even though the
uncertainty exists.

Therefore in real scenarios a case may contain uncertainties in its facts or with the law itself.
It is up to the judiciary to determine how to fix those uncertainties by means of various rules
or common law principles. Emergence of uncertainties cannot be avoided since the facts of
the case are not always the same, and on the other hand the laws may change and amend by
the legislature from time to time. But in a common law system, the most important purpose of
the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers,
and lower court judges about the law: what it is and how it applies to a specific set of facts.25
So the uncertainty and the predictability of the law could be rectified to a particular level by
referring to judgements and by scrutinizing the application of legal rule and common law
rules on different matters. Many realists advocated the study of judicial behaviour, arguing
that to understand the law you must concentrate on the patterns of decisions revealed in
actual cases as these are the most reliable guides to, and the most accurate basis for,
prediction of what future courts will do.

25
THE NEW OLD LEGAL REALISM Tracey E. George, Mitu Gulati & Ann C. McGinley*

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To some extent this may contribute to perceive how a particular legal regime will apply in the
future, so one would expect individuals to adjust their behaviour. Fundamentally this
ideology meets with the terms of general understanding of skepticism in which the realists
never made explicit their philosophical ideologies about the nature of law.

Why judicial precedent is uncertain?

The importance of judicial opinions to legal education cannot be over-stated. It is considered

as one of the main sourses of legal studies.

Hence judges would give divergent and conflicting judgments on the same law.

In ruleskeppticism the predictions deal with only upper court decisions.

“Paternity or maternity is not established in a Muslim who purports to adopt another, nor is
the latter considered in law to be the child of the former. Adoption is not known to Muslim
Law.”26

AS Holmes acknowledges written rules do not determine the law. It is an empirical study of law
rather than sticking to the literal interpretation of paper rules

Criticism with realism

Cannot use the term ‘rule’ for dynamic principles.

Plus point

Bibliography

26
Tyabji on Muslim Law (4th Ed.) states at page 208-209, para 228 –

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Statutes

 Adoption of Children Ordinance No- 24 of 1941

 Muslim Intestate Succession Ordinance No. 10 of 1931

Case Law

 Ghouse v.Ghouse (SLR-1988 Vol.1-P25)

Books

 M.D.A Freeman,’Lioyd’s introduction to jurisprudence’

 Suri Ratnapala,’Jurisprudence’

Journal Articles

 Andew Altman,Legal realism, ‘critical legal studies and Dworkin’

 Brian Leiter,’American Legal Realism’
 Tracey E. George, Mitu Gulati & Ann C. McGinley,’The new old legal ‘
 JULIUS PAUL,JEROME FRANK'S CONTRIBUTIONS TO THE PHILOSOPHY OF
AMERICAN LEGAL REALISM

Web sites

http://heinonline.org

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