Oliver Wendell Holmes idea of law:

A law does not serve a purpose other than allowing to predict how man should behave in a
particular society.

Unlike in Natural Law Theories, where law has a noble purpose. There are viryues involve in law- that law
should be for the common good.

For a realist, a law should be simply a systematized prediction. This means, using a lenses of a Bad Man,
if you are ask why an individual would observe a law, the answer of the theory is that, the individuals
behave because the individual believes that the law is good or will promote happiness or beatitude- simply
because the person is concerned about the material consequences of disobeying the law. His concern
simply is whether or not the coercive power of the state will be applies to him.

It all boils down to the idea that if you think of law, we are actually referring to the decisions of the court.
Law is not law because it is good. Law is law because that’s what the court actually does.

“The prophecies of what the law will do be in fact nothing more pretentious than what I mean by
the law” –Oliver

If we think that the law is fixed and judges all over the country in a particular jurisdiction will not take
similarly, then chances are, the application of the same all will all vary/ depend on how the judge
interprets the law. At the end of the day, the decision of the court is the interpretation of the law that will
be implemented.

“The important phenomenon is the man underneath it, not the coat”-- Oliver

In a formalistic view, we view law as something as uniform. Therefore it is justice and reasonableness of
the decision that matters and not the consistency of previously held views.

Stare decisis in a formalistic view, requires that judges should resolve controversies in accordance with
how the same issue have been resolved by the court in the past. But what matters really is the
reasonableness of the decision and not in accordance with the previously held views.

No one will ever truly have a philosophic mastery over the law, who does not even consider the outside
forces.

Justification of Oliver:

“Law is nothing but mandate. What matters is not the output or product made by man but the
man itself.”

Laws are our creation. We, humans should be the masters of the law.

If in a situation a judge knows what is right, what is just, what is proper but the law constrains the judge
to come up with such a decision, which or who should prevail?
The judge who know the right decision? Or the law?

If you insist that the law because as Justice Scalia said, that is the importance of the rule of law and that
is the bedrock of democracy. Law is the representation of our sovereign will.

Disadvantage of legal activism: what is being done in realist is the counter majoritarianism.

According to Justice Scalia, Judges are appointees not elected officials. So how can a set of appointed
officials overule the decisions rather that the wish of the sovereign?

“We are a government of laws and not of men” –Dworkin

“Every jurisdiction or legal system of the world consists of a primary rules and secondary rules”— HLA Hart

What if in particular situation, there is neither primary nor secondary rules? What principle will be applied
if there is no law applicable?

Dworkin said that in an atmosphere of legal system, it is not all rules.

LEGAL FORMALISM

Based on the understanding of policy considerations. Moral standards are assumed in the making
of the law. You cannot anymore introduce other considerations outside the law because it is presumed
that it has already been considered. A JUDGE SHOULD NOT SAY WHAT THE LAW SHOULD BE BUT SHOULD
CONFINE ITSELF TO WHAT THE LAW IS.

Should the aim of judges in interpreting the statutes may include determining the intent of the legislators.
The government of laws not of man means, that the unexpressed intent of the legislators must not bind
citizens. Judges may at times constrain a little bit if the strict or literal interpretation would result into
unjust laws.

A constitution should evolve so it would be made available to adapting and changing times. But Scalia
rejects that idea. He said that the intent of the law of the past should still be the intent in the present even
subject to changing times.

If there are therefore new means of adapting to changing circumstances, then it should be change rather
than just let it evolve. Because, that is going outside of the original intent.

Christopher Columbus Langdell (formalist approach, case method of legal study)

Jurisprudence for a formalist is a deductive science (syllogism)

 Oliver Wendell Holmes idea of law:

A law does not serve a purpose other than allowing to predict how man should behave in a particular society.

Unlike in Natural Law Theories, where law has a noble purpose. There are viryues involve in law- that law should be for the common
good.

For a realist, a law should be simply a systematized prediction. This means, using a lenses of a Bad Man, if you are ask why an individual
would observe a law, the answer of the theory is that, the individuals behave because the individual believes that the law is good or will
promote happiness or beatitude- simply because the person is concerned about the material consequences of disobeying the law. His
concern simply is whether or not the coercive power of the state will be applies to him.

It all boils down to the idea that if you think of law, we are actually referring to the decisions of the court. Law is not law because it is
good. Law is law because that’s what the court actually does.

“The prophecies of what the law will do be in fact nothing more pretentious than what I mean by the law” –Oliver

If we think that the law is fixed and judges all over the country in a particular jurisdiction will not take similarly, then chances are, the
application of the same all will all vary/ depend on how the judge interprets the law. At the end of the day, the decision of the court is
the interpretation of the law that will be implemented.

“The important phenomenon is the man underneath it, not the coat”-- Oliver

In a formalistic view, we view law as something as uniform. Therefore it is justice and reasonableness of the decision that matters and
not the consistency of previously held views.

Stare decisis in a formalistic view, requires that judges should resolve controversies in accordance with how the same issue have been
resolved by the court in the past. But what matters really is the reasonableness of the decision and not in accordance with the previously
held views.

No one will ever truly have a philosophic mastery over the law, who does not even consider the outside forces.

Justification of Oliver:

“Law is nothing but mandate. What matters is not the output or product made by man but the man itself.”

Laws are our creation. We, humans should be the masters of the law.

If in a situation a judge knows what is right, what is just, what is proper but the law constrains the judge to come up with such a decision,
which or who should prevail?

The judge who know the right decision? Or the law?

If you insist that the law because as Justice Scalia said, that is the importance of the rule of law and that is the bedrock of democracy.
Law is the representation of our sovereign will.

Disadvantage of legal activism: what is being done in realist is the counter majoritarianism.
According to Justice Scalia, Judges are appointees not elected officials. So how can a set of appointed officials overule the decisions
rather that the wish of the sovereign?

“We are a government of laws and not of men” –Dworkin

“Every jurisdiction or legal system of the world consists of a primary rules and secondary rules”— HLA Hart

What if in particular situation, there is neither primary nor secondary rules? What principle will be applied if there is no law applicable?

Dworkin said that in an atmosphere of legal system, it is not all rules.

LEGAL FORMALISM

Based on the understanding of policy considerations. Moral standards are assumed in the making of the law. You cannot
anymore introduce other considerations outside the law because it is presumed that it has already been considered. A JUDGE SHOULD
NOT SAY WHAT THE LAW SHOULD BE BUT SHOULD CONFINE ITSELF TO WHAT THE LAW IS.

Should the aim of judges in interpreting the statutes may include determining the intent of the legislators. The government of laws not
of man means, that the unexpressed intent of the legislators must not bind citizens. Judges may at times constrain a little bit if the strict
or literal interpretation would result into unjust laws.

A constitution should evolve so it would be made available to adapting and changing times. But Scalia rejects that idea. He said that
the intent of the law of the past should still be the intent in the present even subject to changing times.

If there are therefore new means of adapting to changing circumstances, then it should be change rather than just let it evolve. Because,
that is going outside of the original intent.

Christopher Columbus Langdell (formalist approach, case method of legal study)

Jurisprudence for a formalist is a deductive science (syllogism)

Legal Realism and O. W. Holmes, Jr.

 "The Path of the Law", by O. W. Holmes, Jr.

 Law is "a body of dogma or systematized prediction"
 "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by
the law"
 On "law" and "morality".

- The Bad Man Theory. "If you want to know the law and nothing else, you must look at it as a bad
man, who cares only for the material consequences which such knowledge enables him to predict,
 not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in
the vaguer concept of conscience." (The law is what the bad man thinks it is)

 Holmes:
"The important phenomenon is the man underneath it, not the coat; justice and reasonableness
of a decision, not its consistency with previously held views. No one will ever have a truly
philosophic mastery over the law who does not habitually consider the forces outside of it which
made it what it is."

 American Legal Realists argue that, unlike classical legal theorists, legal reasoning is not independent
from moral and political considerations.
 Holmes believes that lawyers and judges are not logicians and mathematicians."The life of the law
has not been logic; it has been experience." Necessities of the time, the prevalent moral political
theories, intuitions of public policy, and even the prejudices which judges share with their fellowmen,
better determine the rules by which men should be governed.
 Legal Realists are often criticized for favoring "Judicial Activism" (as opposed to "Judicial Restraint"),
where judges base their decisions on their personal and political considerations rather than the law.
 Legal rules and reasons figure simply as post hoc rationalizations for decisions reached on the basis
of non-legal considerations. (Brian Leiter)

Legal Formalism

 A positivist theory of law, it focuses on the role of judges, that they must be constrained in
interpreting and applying the law. It is a theory of legal justification.
 For a formalist, a law is already the product of normative and policy consideration in the formation
of the law. Hence, a judge should not say what the law should be but should confine itself to what
the law is.

Formalism and Justice Scalia

 "A Matter of Interpretation", by Scalia
 Should the aim of judges, in interpreting statutes, be to determine the intent of the legislators who
made the law!
 A government of laws, not of men, means that the "unexpressed" intent of legislators must not bind
citizens. Laws mean what they actually say, not what legislators intended them to say but did not
write into the law's text for anyone to read. (Textualism);
 "Words do have a limited range of meaning, and no interpretation that goes beyond that range is
permissible"
 Scalia attacks "Intent Theory" (vs "Textualism") and "Living Constitution (vs. "Originalism");

Formalism and Christopher Columbus Langdell

 Introduced in Harvard Law the "Case Method" of legal study

 Jurisprudence is a "deductive science"
 Judges makes decisions by deductively inferring their rulings from general principles in case law

Constructivism

 "Law's Empire", by Ronald Dworkin

 Judges decide, not because it is what the law mandates, but because it is what is required by some
standards of "morality" or "justice" that made up or formed the norm or law, the same standards
that provide for the justification of the norm.
 Law includes principles not all of which have been stated explicitly anywhere in the black letter,
positive law. Judges have those principles to rely on.
 See "Riggs vs zpalmer" (US CA Case, 1889)
 Ronald Dworkin's Theory is also called "Interpretation"
 Distinguish: Legal Realism and Constructivism