Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

THE REALIST SCHOOL OF LAW

Nnamdi Ebo 2Lawyer Zone  | By Nnamdi Ebo | The Realist School of Law.

THE REALIST SCHOOL.

Realism per se is the attribute of accepting the facts of life and favoring practicality and literal truth. This presupposes an inherent reality that is concerned with actual use (utility and functionality) rather than theoretical possibilities. This theory is related to Platonism (which is beyond the scope of legal method in Nigeria). Realism can be literally defined as a philosophical doctrine (accepted by adherents) that physical objects continue to exist when not perceived.

Legal Realism

Legal realism originated in the U.S. circa 1930. This theory postulates that law is based, not on formal rules or principles, but instead on judicial decisions that should derive from social interests and public policy. This doctrine is formally referred to as “American legal realism” – which flourished in the early 20th century. It was espoused by such scholars as Justice Oliver Wendell Holmes Jr., John Chipman Gray and Karl Llewellyn. These men were all legal realists of their time. As the main proponents of realism, the jurist, his cohorts and their ideas are discussed below:

Legal Realism is a third theory of jurisprudence which argues that the real world practice of  law is what determines what law is; the law has the force that it does because of what legislators, judges, and executives do with it. Similar approaches have been developed in many different ways in Sociology of law. Skeptical in tone, it held that the law should be understood and determined by the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law.

The essential tenet of legal realism is that all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections. It has become quite common today to identify Justice Oliver Wendell Holmes, Jr., as the main precursor of American Legal Realism (other influences include John Chipman Gray, justice Jerome Frank (who observed trial court decisions), Roscoe Pound, Justice Benjamin Cardozo and Karl Llewellyn who believed that the law is little more than putty knife in the hands of a judge who is able to shape the outcome of a case based on personal biases and idiosyncrasies. Any judge according to Holmes can influence judicial decisions based on his foibles, incompetence, mistakes or financial inducement and aggrandizement.

 A typical example of Holmes’ postulation happened live in the U.S. during the era of prohibition and ‘gangsterism’ in Chicago, Illinois. A U.S. gangster or mobster (of Italian descent) – Alphonse Capone (Al Capone) a.k.a. ‘Scarface’ (1899-1947) – terrorized Chicago during the prohibition era in the U.S. Al Capone was the mafia boss of all bosses and controlled bootlegging, extortion, protection racket, fraud, prostitution racket, gambling racket etc. in the city of Chicago. He was ‘arrested’ several times but let go based on his illicit influence. He employed his stupendous wealth (est.1927 – $100million), terror-tactics, brutality, intimidation and clout (connection in high places) – to intimidate the public, witnesses, city officials, police officers, FBI and corrupt judges. These judges perverted the course of justice for lucre – in favor of Scarface and his crime family. The U.S. court system epitomized by the Chicago district and circuit courts were used effectively by Scarface to perpetrate his heinous crimes – and he got away with it until nemesis caught up with him. He was finally arrested, charged and convicted in 1931 for tax evasion and sentenced to 11 years in prison.

The essence of this factual crime story is to elucidate more on the legal theory of realism espoused by the realists and its ramifications on any legal system with regards to legal philosophy as ensconced in jurisprudence. The realists in their analysis of the concept and principles of realism, focused on the court system with special reference to its legal method. In particular, they focused on how trials are conducted and the ultimate objective of reforming the judicial process, the legal method and the legal system itself.

Despite its decline in facial popularity, realists continue to influence a wide spectrum of jurisprudential schools today, including critical legal studies (scholars such as Duncan Kennedy and Roberto Unger), feminist legal theory, critical race theory, sociology of law, law and economics, law and environment etc. The main goal of the realists was the reform of the judicial system with the infusion of a well structured and streamlined legal method.

Essential beliefs of legal realism

  • Belief in the indeterminacy of law: the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. A judicial decision might be determined by what the judge had for breakfast.
  • Belief in the importance of interdisciplinary approaches to law: the importance of sociological and anthropological approaches to the study of law.
  • Belief in legal instrumentalism: the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests.

Realism in statecraft

Modern realist statesmen of Nigerian origin:

  • Alhaji Maitama Sule
  • Chief Emeka Anyaoku
  • The late Gen. Joseph Garba (Rtd.)

The ideas behind the work of diplomats and diplomatic historians remain relevant to the debate over Nigerian foreign policy, which since the military era has been characterized by a shift from the Founding Fathers’ realist school to the idealistic school of international relations. In the realist tradition, security is based on the principle of a balance of power in the West African sub-region; the reliance on morality as the sole determining factor in statecraft is considered impractical.

According to the idealist approach, on the other hand, the support of Nigeria with regards to the spread of democracy in Africa (in Cote d’Ivoire for instance) as a foreign policy is key and morals are universally valid. During the Presidency of Shehu Shagari, Nigerian diplomacy reflected the idealist school to such a degree that those in favor of the realist approach likened Shagari’s policies to social work. According to political ideologues, the concept of Nigerian diplomacy should be based on the realist approach; such moralism without regard to the realities of power and the national interest is self-defeating and will lead to the erosion of power; to Nigeria’s detriment. More elucidation will be in another book.

_________________________________________________________________________________________

Legal Method . Book CoverCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2014 Nnamdi Ebo . All Rights Reserved

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