292 ‘son, Paosoree cover public officials who allow apathy or indifference to prevail, it is no wonder that the minonty groups in many places lve precariously Edwin Patterson, who has taught law for ver forty years, said that “over @ period of a good many years Thave found Pounds inventory generally Muminating fn the drafting of legislation and in predicting trends of legal development as well as interpreting legal t- Justice Benjamin R, Cardozo added the great ‘weight of his scholarship to the valuable role played ‘by the social interests end national polices in the legal ordering of society. He said, “logic and history, and ‘custom, and utliy, and the accepted standards of right ‘conduck, are the forces which singly or in combination ‘shape the progress of the law. Which of these forces Shall dominate in any ease, must depend largey upon the comparative Importance or value of the social Interests that wil be Wereby promoted or impaired. These may enjoin upon the fudge the duty of ‘cawing the line at another angle, of staking the path along new courses, of making a new point of departure from which others who come after him will set out upon thelr journey. If you ask how he is to know when one interest outweighs another, I can only newer tat he must get his knowledge just as the Iegislator gels st, ftom experience and study and reflection; in brief, from Me sel Here, indeed, 19 the point of contact between the legislator’s work and his” CHAPTER VI THE MODERN LEGAL REALIST PERSPECTIVE 46, Labela 47, Legal Realism a8 a Distinct Juristic School 48, Judicial Legal Realism ‘A Intellectual Forbears () Human Law and Human Experiehees (2) Separation of Law from Its Sources B. Constructive Skeptics () Rule Skepties L (2) Fact Skeptics {@) Opinion Skeptics >. Role of Material Facts Role of Experience and Social Advantage ole of Metalegal Stimuli (0) Formalise View (2) Modern Realist View (8) Metalegal Factors {@) Stimulus Set by the Witnesses (@) Stimulus Set by the Lawyers (@) Stimutus Set by the Judges’ Lega! ‘Attitudes and Prejudices (@ Stumutus Set by the Jucges Predictions and Preconeeptions (© Stimulus Set by Historical Events and Political Precedents @ Stimulus Set by Current Soctal Values and Economic Postulates F. The Law as the Product of the Judicial Process noe298 49, Leone Paosorsr G. Exclusion of Legislative and Executive Actions HE, The Adjudicative Process as the Prime Mover 1. The Law and its Purpose Social Legal Realism AL Souree of Law 1B! End or Purpose of Law ©. Application of Law Critical Legal Realism ‘A. Critical Legal Realism Scomed B. Polemies Against Critical Legal Realism Deconstruction of Dominant Liberal Paradigm () ‘Trashing the Tradition of the Dominant Liberal Paradigm (@) Internal Reformulation of the Dominant Liberal Paradigm (@) Rationale and Justifcation for the Censure (The Rule of Law (4) Separation of Governmental Powers (4u) Objectivism and Formalism (iy) Judicial Activism (0) Idealist and Cytcal Concepts, of Democracy (b) ‘Transformation of Liberal Legal Order @) Baste Equality (i) Democratic Republicanism D, Transformative Context of the Post-Liberal Order (2) Decentralization of Government @) Reorganization of Market Economy (9)_ Reconstruction of System of Rights E, Nature and Function of Law Lon, Reser Pessrocrn: 295, 51. Poychologcal Legal Rater ‘AL Critique. of Judicial Legal Realism CGaitique of Legal Ideology Nature of Law Basie Jural Relations POBP. 46. LABELS ‘The term "modern legal realism” has been used to deseribe the experiential outlook of this school of Jurisprudence on the traditional assumptions on the nature of the legal order. However, there are those who prefer the label “pragmatic jurisprudence” to describe the post-meta- physical view of this juristic school, This is due mainly to the influence of the philosophical move- ‘ment started by Charles S. Pierce who frst intro- duced the principle of pragmatism in 1878." William ‘James who revived it in 1896 in a series of leetures hie delivered before the Philosophy Union of the Uni versity of Califoria,? and John Dewey who reiterated {tn 1926 in his essays oa nature and experience in ‘experimental logic. Pierce, James and Dewey posited ‘that pragmatism, as a theory of knowledge, #8 based nm Pumice, Longmans, reenand Company, New ore ‘ye War Te Beane, Longmans, Green and Company. Noi Longmans, Green and Company, es York, Wil James noes thatthe pcp pragmatnm lay ety unnoieed by eee {or weaty years" unt he brought forwacd again Uns We Powers, 67 Longmans, Green and Company. New Yor. Wiliam varee Intenoed a great deal the Iga pilwophy of} 206 zou Prmosoniy fon pure experience which rejects all transcendental principles ag well as abstract concepts and ideas. AS 2 method of analysis, pragmatism maintains that if there s no concelvable practical effect of concept or ‘dea, then there i simply no point in pursuing its analysis. In other words, the meaning of concepts oF ‘ideas is to be sought in thelr practial resulls, And as a method of settling confieting or overlapping claims, demands and expectations, pragmatism insists fn examining closely the practical consequences of the perceived solution. The substance of the influ- fence of pragmatism on legal philosophy is that the Idealisic cancepts of the law is impractical fori shuts ‘out the experiential factors that make the law throb with fe, But the label pragmatism fits only as far as the legal theory of this juristie school has turned away from the abstract theories of law, Even the distinc. tuon drawn by the legal positivists between law and ‘morals does not fit the emphasis given by the mod- cern realist jurispradents on the practical consequences of the law in aetion, 47. LEGAL REALISM AS A DISTINCT ‘JURISTIC SCHOOL Edgar Bodenhelmer (1908-1991) views the legal realisis as the radical wing of the funclional school of jurisprudence because oftheir concept ofthe nature of the law.9 Julius Stone is similarly minded. He feels that the realist perspective is but a "gloss" on. “Secoewth,E,Jmamusmict: ys Ptoronn Ao Memeo or Ln, 126 Revised Elion Harvard Univer Press, Cambri, soa. Reausr Penerocrnve 297 the functional philosophy of law4 For Stone and Bodenheimer, legal realism considers the same fac- tors that functional jurisprudence deals with in the study of the nature of the law. Not quite, Unlike functional Jurisprudents, the legal realists ‘are more concemed with the actual operation of the legal order in terms of the experi= ences and interexperiences of the people in the legal ordering of society. For this reason, modem legal realists are not merely advocates of certain lenden- cles of the fametional schoo! of jurisprudence. The ‘modern legal realists have a philosophy of law quite apart from that of the functional junisprudents.® Legal realism has many forms. However, atten- ton wall be focused on Justice Olver Wendell Holmes Judicial iegal realism, John Dewey's social legal re- alism, Roberto Mangabeira Unger’ eritical legal Te- alism, and Axel Hagerstrom's paychologieal legal re- asm, 48, JUDICIAL LEGAL REALISM. ‘The theory of law styled Judicial legal realism is characterized by a healthy skepticism for the tradi tlonal perspectives of law. Like the other aspects of the modern legal realist school of jurieprudence, Judicial legal realist doubts the postvst and trans ‘scendentalist approaches to the problem ofthe na- ture of the law in terms of what itis and:what it ought to be, respectively. The positivist school of Jurisprudence is enticzed lor aver dependence on the ‘cereal Puictions, Sysney. Srna i. Lie so ner Move Bn, ik Sond ton, Brentano's Ine, New Yor,a 298 Leon Pnosori role of rules tn the legal ordering of soctety. The {eleologleal achool of jurisprudence is faulted for its fover-emphasis on the abstract postulates of the patural law. ‘The judicial legal realists want a re-examination of the problem of the nature of the law in terms of the relation of legal rules and legal facts to the realities fof the modem judicial process. A. etsscmun. Forseaas It can be said that st was the Bnglish prelate Benjamin Hoadly, Bishop of Bangor, who dropped the seed of judicial legal realism in a sermon he Gelivered in 1717 before a congregation which in- ‘hided King George I. Bishop Hoadly boldly asserted ‘hat “whoever hath an absolute authority to interpret Any written or spoken laws, it he who is traly the Tawgver to all intents and purposes, and not the persons who wrote or spoke them.” Chief Justice Jotin Marshall of the United States ‘Supreme Court was probably the first to acknowl- edge in a court decision the concept of judicial legal realism. In a seminal decision he wrote for the Court {in 1803 in the case of Marbury v. Madison,” Chief ‘Justice Marshall asserted that "itis emphatically the Province and duty of the Court to say what the law [5 One fiundred and sixty-one years later, this con- cept was relterated by the same Court in United States ». Nexon? ‘thay, 5 The Org on Spe fhe Ameren Doct of censiutonel Lewy? Harvard Law Rees 129,182. “Teraneh (08) 187 ‘Leon Reatar Penspacre 299 ‘Two great legal philosophers developed the con- cept of judicial legal realism and are the acknowl ‘edged inspirations of the realist scholars who came after tem. ‘The first is Justice Olver Wendell Hotrhes of the Supreme Court of the United States. “The Second is Professor Jon Chipman Gray, an esteemed member ofthe faculty of the School of Law of Harvard University. 1. Human Law and Human Experlence Justice Oliver Wendell Holmes did not conceal bis aversion to the natural law theory. Justice Holmes called the jurssprudents who accept this legal theory ‘a8 pecullar individuals? ‘Justice Holmes eriticized a5 nalve the Idea that the natural law maist be accepted by all on the ground. that it is selfevident.!© Justice Holmes felt. and ‘warmed his students in the short period of time he ‘was profescor of law at Harvard University, that the precepts of natural law do not lie on the surface for they are really concealed and must be dug out and examined.) And even upon perusal, Justice Holmes could not guarantee thelr plausibility. He sald that “the ablest and purest of men have differed upon the subject. The precepts of the natural law are not ‘mantfest but stil need proof and reasoning.” Justice Holmes was simply saying that the precepts of the hhatural law are 50 abstract that people are led to tne, ON, Tenahlzae 32 Harada eve. 0 (ca, Neer Tigra Ju Me toe Holmes and Non eon Ley ‘hls, 17 Cornel aw Quast 808,300 Leon, Pmosory contradictory results by them. Bven the attempt of Rudolf Stammler to submit a comproraise theory — ‘the natural law with a variable content — was se verely repudiated by Justice Holmes. Stammler’s ex planation that the application of the precepts of the hratural law in (he legal ordering of sociely varies ‘with the times did not impress Justice Holmes, In a letter to his young friend, Professor John C. H. Wu, 12 ‘who had previously called Justice Holmes’ attention {oa fresh edition of Rudolf Stammler’s book. 8 Justice Violmes dismissed Stammler’s theory of situational natural law as yet another attempt “to elaborate the ‘obvious in scholastic language! In his glitering diction, Justice Holmes stated that “the law is not a brooding omnipresence in the sky."1 By this Justice Holmes meant that the law fs not a divine parent keeping watch over a human ‘child, In diferent words, human law is human and Should not amount to more than that. ‘Therelore, for Justice Holmes, “the law should address human fexperiences — past and present.2® Since law is for Jhuman beings and about human experiences and inleresperiences, Justice Holmes, sn exasperalion, warned that “the law should not be considered as @ system of reason, not a deduction from eUhical prin ciples, correlaries ané axioms, or what nol."!7 3eyumte Ree oso Seren, Hua Trnebton Nee 28sguem Pf Companys denen 44 US. 208 22.97 {finer J camer Hoows ot Las Ty, 56. 17 hpe Pathe Las 10 Hare a Review, 487 Leon: Rewssr Pessrocive 301 Otherwise, as Jerome Frank explained It, "the law itself would ignore legal actuality, make men appear Like angels, and reduce itself to pure geometry with Ais axioms and corrolaries."18 “Justice Holmes’ warning was sorely provoked by ‘an earlier dictum of Lord Chief Justice Edward Coke of England who stated that “reason is the life of the Jaw, nay the law is nothing else but reason."! Justice Holmes conveyed the broader view, as Tollows: ‘The life ofthe law has not been foe, st hhas been experience, The felt necessities of the umes, the prevaient moral and polilieal theories, intentions of public palley avowed for unconscious, even the prejudices which Judges share with thetrfelow men, have had alot to do than the syllogism in determining the rules by which men should be gov ered 29 ‘Justice Holmes pointed in the fist sentence his credo that the law draws ils lfe from human experi fence and interexperiences. He then proceeded with the relevant classification of such experiences and Interexperiences in the second senterice, stressing that these metalegal realities have had a more profound effect than logic or reason in determining {he rules ‘and regulations governing human conduct. prank J, Me Justee Hoimes and Non Buen Legal ‘hunky, 17 Comal aw Qunteriy 72. cour, 1 haw, Setlon 21 Houses, 0,, Tae Conon Law, 1 Lie Brown and Company,302 ‘Lenas Ptosorey It should be noted that Justice Holmes did not take issue with the formal role of the major and minor ‘premises of the syllogism in reaching his eredo. He emphasized that the pragmatic process of analytical experience does not depend entirely on logic as Lord Coke had dogmatically stated it. Even the rational- {sts themselves do not analyze or argue exclusively from logic. For Justice Holmes, the application of ‘the legal rales on the material facts of a case 18 only the first of two quantities in the equation of legal realism, ‘The enumeration of the metalegal stimult ‘operating in the judicial process mentioned In the ‘second sentence of Justice Holmes’ jurisprudential ‘redo sees to that. Having placed reaton and logle in thelr proper perspectives, Justice Holmes, then, dwelt on the Pragmalic effects and consequences of the metalegal Stinull on the judges, as follows: It 4s not the wil of the sovereign that ‘makes . . . the law but what the judges, by ‘whom ft is enforced, says is nis wil. The Judges have other motives for decisions, out- ‘ide their own arbitrary will, besides the command of the sovereign. ‘And whether ‘these motives are, or are not, equally compul- sary is immaterial if they are sufliiently Ukely to prevail to alford a ground for prediction, Justice Holmes always cautioned his students rot to rely on the formalist definition of law as a System of legal rules, This, according to Holmes. ts a naive approach to the problem of the nature of the ‘Lena, Reausr Pensrecrne 303 law. Holmes explained: Ifyou really want to know the nature of Jaw you must not take st from the point of view of the good man who desires to do what 4s expected of him but from the view of the bad man who cares only for the conse- ‘quences which such knowledge enables him to predict what the courts will do to hin 21 ‘The proverbial bad man referred to by Justice Holmes 15 the person who does not care about the ‘morality or naturality of the law but worrtes a good deal about the resulls of the decison of the court on Is oF her tnterests. Ina brillant lecture which Justice Holmes delv- xed on the occasion of the dedication of Isaac Rich Hill at Ashburton Place in Boston, bousing the School of Law of Boston University, Holmes presented his concept of judicial legal realism, as follows: ‘The frst thing for @ businesslike ‘un! derstanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion Detween morality and the law, which some- times rises to the height of conscious theory, and more often and indeed constantly 1s ‘making trouble in detail without reaching the point of consetousness, You can see plainly that a bad man has as much reason 185 a good one for wishing to avoid an.en-04 Leon Piosoniy ‘counter with the public foree, and therefore you can see the practical importance of @ Gistinction between law and morally. ‘The confusions with which Tam dealing besels confessedly legal conceptions. Take the fundamental question, what constitute ‘the law? You will find some textwrters telling you .. . that itis a system of reason, that eis a deduction from principles of ethics, or admitted axioms, or what not... But f you take the view of the bad man we shall find that he does nol care two straws for the axioms or deductions, but that he does want to iow what the courts ... are Mkely to do. tn fact. Tam much of the same mind. The prophecies of what the courts will do tn fact, And nothing more pretentious, are what T ‘mean by the law.22 For Justice Holmes, then, the emphasis is on the transitive verb "do", and in that sense the law throbs with Ife and actwity not mainly because of logic or reason but more so by human experiences ‘and interexpertences, Jolin Dewey echoed this quality fof the Jaw as °a program for action to be tested in action . . . not something that can be judged on a purely intellectual basis." Despite the care that Justice Holmes took in presenting his concept of the nature of the law in terms of judicial legal realism be anticipated that st ‘2Bffames,OW., The FathofteLas, 10 HarardLaw Reve |487,499-460. Cf Arta Coute/Petintoncee/sanda, 29508, [Leon Resuse Penareonve 305 would somehow be misunderstood. Perhaps bis com- ‘cer is parlly due to the fact that he had articulated his concept of judicial legal realism tn the future tense, But he remained unperturbed in his quest for certainty and predictability in the legal ordering of Society. Thus, ina lelter to Professor John C.H. Was, ustice Holmes dismissed is ertics with the ob- Servation that their objections to his legal realism was based on their use of the term “law” in some ‘ferent sense from that in which he used it23 Lately, ‘the Judicial lega! realism of Justice Holmes has been. ceniticied by the scholastic Jurisprudents and theolo- Bans. But Holmes’ judicial legal realism bas de- fenders 2l30.25 2. Separation of the Law from its Sources Professor John Chipman Gray presenied his concept of the nature of the law in a series of lee- mocaci?, 98 Georgetown Univers Lav Joural, 52% Ore P. SSeS Deleted Aone nea pacientes aes a Eeaeieaiadiakat ws Scgane Siec ar See recy en anatase Sere alert oe soclatlgn Journal, 560, I SB ee Dero ae ied tson fe stn ry 6¢ ara aw Revi 62a. Filer Reasr and ot Cas au, 30 arvardtaw evew. 978: ERGs De atte et306 Leon. Patosone tures on Comparative Jurisprudence delivered at Harvard University. Professor Gray approached the problem of the nature of the Jaw bya complete avoldance of the ‘transcendental “ough. He emphasized that the law “is not an ideal concept but something that actually exists, It is not that which is in accordance with hhature, or religion, or morality, ti not that which fought to be but that which 18.°2° But, Ast, Professor John Chipman Gray ear tea ine meaning af the frm la” when preceded by the feat acl om he meaning wc bears ‘when preceed by ine deiste ale: "On tis Gray tates ‘Astin, indeed, dees the aw a8 btn te aggregate ofthe rules established by polled supers, and Bentham says that Taw, taken indefistey, io an abstract of caletve term, hich mane a an mean nliber more nor ess than the smo of number of indivi ws ten gets, But a he odiny fearing ren to the ive law ordinary Theano f saute pansed bythe elatre of {sate The law the whole system af ules Spplee by the courts?” Professor John Chipman Gray then posited a philosophy of law in terms of what the judicial organ 28a, JG, Toe Nove ano Sounces or Law, 84 Second ng, & Compa, New York. | | | Leon. Rewer Ponsoncrve 307 of a state lays down as definitive rules of conduct ‘Along this line, Professor Gray stated “that the law of the siate or of any organized body of men is com- pposed of the rules which the courts lay down for the determination of legal rights and duties."28 ‘Thus, like Justice Oliver Wendell Holmes, Pro: fessor Jofin Chipman Gray emphasized “sal a fortior ‘whoever has the absolute authority not only to in ferret tow but to sty what the law's, Gul the sigiver 22 Unlike Eugene Ehrlich, who insisted that the ‘courtroom is not the scene of all human lif! and, then, drew a distinction between legal norms and norms of decision.S? Professar Gray said that If an ‘iferentiation is to be drawn, then the eut should be ‘made between the law itself and the sources of the Jaw for iis absurd and nebulous to say that the law 4s already present and exising in its sourees. The point, according to Gray. 1s which body can say with uthorty and finality what the law ‘s. Thus, statutes, rules and regulations, like customs and usages, are ‘no more than the sources of the law. On this erucial point in legal philosophy, Professor Gray stated: While the command that leistaive acts ‘must be followed is precise and peremptory, the fact is that this rule, in Its working, Is almost as indefinite as those which are im- Bonar I py 86 182 Spins, Fare Peveresor mie Sce.oovor Law 2. Moi pansaton, Ruse Rusa, New York ‘Stpagucn Bop. cl, 10,41.908, eon Prosoniy posed on the courts with reference to the bother sources, for, ater all tis only words ‘hat the legislature utters, ts to say what those words mean, that Is, is for them to interpret legislative acts. Un- doubtedly there are limits upon thelr power of interpretation but these Kraits are almost {a5 undefined as those which govern them in ‘their dealing with the other sources, ‘And this 4s the reason why legislative ‘acts, statutes, are to be dealt with as sources of Law and not 2s part of the Law itsell, why they are to be coordinated with the other sources which Ihave mentioned. It has been. ‘sometimes said that the law is composed of two pars, legislative law and judge-made law. ‘The shape in which a statute is imposed on. ‘he community as a guide for conduct 1s that statute as interpreted by the courts. The courts put life into the dead words of ‘the statute $2 In another part of his work, John Chipman Gray posited the separation of the aw from its sources, In ‘us regard Gray sald: “The first sources from which courts of ‘any human society draw the law are the formal utterances of the legislative organ of the society. We can conceive of a society ‘with judicial but no legislaive organ. The courts of such a soclely would follow rules SAC. Ga. opt, 124 scat Reser Penspacrne 300 derived by them from other sources, say fom ormer decisions of their own, oF fom cus- toms.28 ‘The diference between John Chipman Griy's legal realism and Join Austin’ legal petuvam stems ffom Austin's fate to dlatinguish between te i? and the sources of the law Gray ft that the dea of tw as commands ofthe siate esl open to farther scrutiny since itis the judicial organ ea poltcaly Organized society tht gives the comand is Gus ‘meaning and limits Iageed, iti the judi organ that has the octal say as #0 what is er what snot law therem. “The cles lluotation of tua ts the different decisions given by courts of ellerent countries to the stalate of faude so that dierent peoples are uncer diferent situations. ‘Thus, ohn Chipman Gray said, “no re oF principle which the highest txbunal af country refuses to folow is Law sn that county." B, Consravenve Skemes ‘The realism in law of the group of jutispra- dents influenced by Justice Oliver Wendell Holmes and Professor John Chipman Gray is characterized by a healthy skepticism about the role of ules, ft, ap Judi options in the eg arses society. 4 m ne310 {boas Paacooy (2) Rule Skeptics ‘The telling erltque leveled against the formalist approach to the problem of the nature of the law is ‘two-fold. Firs, the rule skeptics question the notion fof the legal formalists that legal rules are precise and ‘can be applied easily in any given case. Second, the fle skeptics dispute the claim that legal rules by themselves dictate the result or decision of a case. If Tegal rules are precise and dictate the result of con: fieting or overlapping Interests why do people not Jjust apply the legal rules themselves and avold ex: ‘pensive court Mugatons? Why is it that in the ma Jority of court lgauons the outcome remains un- fertain notwithstanding the legal rules? Does this hhot suggest that indeed the role of the adjudicating bflcial is not merely to open a legal code and apply ‘mechanically the legal rules found therein? ‘The rule skeptics feel that legal formalism has shunted to the background the relevant though inar~ ticulale premises and uncormmunicated reactions of those involved in conflcis of interests, namely, the parties, the witnesses, the lawyers, the adjudicating Dillcials, and even Ube community itselc Jerome Frank criticized the slavish reliance on. legal rules as a throwback to the childish “father complex? that Is to say the omintpolenee or inal Iibtity of legal rules. While legal rules are important See eee ons Resse Penarecr: Sou Im the adjudleative process and in the prediction of ‘what the ocuris will do In fact, the belief that they will yield the correct results or effect greater certainty In law is tobe seriously doubted, For Jerome Frank, the administration of fustice in the courts deals with complex and changiig human experiences. Frank explains why the strawman or myth of legal formal- sm has been detcimental to the study of the problem of the nature of the law, as follows: ‘The modem mind is @ mind free of euld- Ish emotional drags, a mature mind. And law, if it is to meet the needs of modern civilization must adopt steel to the modern ‘mind, It must cease to embody a philoso- hy opposed to change. It must become avowedly pragmatic. To this end there must be developed a recognition and elimination of the carry-over of the childish dread of ‘and respeet for, paternal omnipotence: Dial ‘dread and respect are powerful strongholds of resistance to change, Until we becomie thoroughly cognizant of, and cease to be controlled by, the image ofthe father hidden away in the authority of the law, we shall hot reach that first step in the elvlized ‘administration of justice, the recognition that man is not made for the law but that the Jaw is made by and fer men.3? ‘Thus, for people living in a politically organized Society, it Js practical and reasonable to be able to Dredict or foretell as best they could either by Sie. 252,sia Leon, Paosoriy themselves or better yet through the professional help of lawyers, what the adjudieative organ will do oF ely do to them when they transgress the right of ‘others or the rules laid down by society for the or dering of human conduct, For example, should a ‘person insist that all his agreements be reduced in ‘writing? Obviously, the answer is, not al. If this be the ease, then which ones? The statute of frauds provides that contracts or agreements which should be in written form are unenforceable if they are not reduced in weting or in some note or memorandum therof and subscribed by the party sought to be charged or by his agent and ratiled. Oral agree: ‘ments or contracts which should have been reduced {in uniting to be enforceable by action in court will not, therefore, be enforced, Iti of no moment, then, ‘whether the rules contained in the statute of frauds fare good for the obligor or bad for the abligee so lang as they both know. or have a notion of, what the resulls of thelr conduct in the premises wil be Jerome Frank agrees with John Chipman Gray that legal rules are only sources of the law. Legal rules {ell something about dhelaw but they do not constitute the law ttsell” For the realists law ig what the court says itis in the concrete cases, As to past decisions, thelegal realists akeitelearthatthey are experiential sides to or precedents inthe prognostication of future Actions ofthe courts, This means that although a good deal of cases will be easy and can be disposed of by the application of decisive rules or judicial prece- dents, the hard cases will no doubt require a “creaive ‘approach that gees beyond the mere applications of ries or precedents."°8 eon Reser Panamera 313 (2) Fact skeptics Fact skeptics appreciate the role of appellate ‘court decisions in the prediction of what courte will do or likely do infact, ‘But fact skeptics deplore the ‘overemphasis given to appellate court decisions and, consequently, the lack of attention to the actualities happening in the trial courts, In a different manner of saying i, the fact skeptics feel that the major cause of Tegal uncertainty is “fact uncertainty, the unknowability before the decision of what the (al ‘court will find as the facts and the unkmowabiltydfter the decision ofthe way in whieh it found those facts “These concems of the fact skeptics highlight the need for greater accuracy in the fact-Anding process ‘nrelation to the task of predicting decisions with some ‘amount of certainly. Indeed, this isnot only a erietsm ofthe capability of lawyers and courts but also a clear call to the value of the personal clement in the re- construction of past events or actual facts. ‘Speaking for the United States Court of Appeals sn the case of In Re Fried §® Jerome Frank emphasized the importance of fact-finding at the trial court level. ‘The reason for this is that the matersal facts of @ contested case are elusive past events, They do not Just walk into the courtroom in pairs, one set for plaintiff and another for the defendant. Tp find the ‘material facts from the mass of past events, courts hhave lo contend with three classes of witnésses:. 1) those who consciously or unconsciously select the facts trom past events, 2) those who are either lying ‘Brae Je wet. ai : sia Loan. Pauasoney for are honestly mistaken tn narrating their recol- Teetion of past events, and 3) those who interpret the facts even when they are tesifying about them. The tulal court must, then, decide which of the test: ‘monies to rely on as to the facts of a disputed case. ‘As a consequence, Jerome Frank stated that “the choice of material facis is discretionary. Thus. a trial Judge exercises fact-discretion. It, therefore, les beyond — is incapturable by — rules and fs unruly. ‘Being unruly, it s usually unpredictable even before the lawsuit commences.” ‘And this becomes another source of diftculty in ‘the fact-finding process. When a court exercises fact- discretion in a contested case, the facts found by the ‘court are no longer objective facts but subjective facts.41 And the aiMieulty of whether the subjective facts correspond to the objective facs is compounded ‘when the contested case reaches a higher court for eview inasmuch as the testimonies reaching the ‘appellate court areow contained ina cold, impersonal ‘Wanscript of stenographie notes. As aply observed by Frank, “there is no yardstick for measuring the accu- racy ofthe fincings of the facts by a court ina contested cease" because there are no avalable means of de: termining whether the trial court is reporting cozretly what the material facts are while in the process of ‘exercising its fact-diseretion. That question can be ‘determined only by knowing what actually went on in the mind ofthe judge inthe exrecise of fact-diseretion. ‘This Is not similar to the case of witnesses on the “prank, J. Mr Juste Hanes and Neruda Legal Hyak Se Whol Cats Bon Pt, 2 nos Lae | | Leone Rest Penarecrie 315 witness stand. There are several devices provided in the rules of court which the parties and the Judge ‘may avail themselves of in determining the question of the credibility of the witnesses and the probative value of their testimonies, Cross-examination, for ‘example, ofthe trial judge as to how he exercised his, or her fact-discreton is simply out of the question. Thus, the decision of the tral Judge may be wrong although the opinion may make the decision appear to be right ‘Trial court feetfinding 1s a dificult part of the adjudicative process. And being a Suman process by Which an atzempt is made to reconstruct “a segment of an objective past it is necessarily faible" This being 80, substantive legal rights may be put in Jeo pardy when there isa “misfinding of the objective oF Actual facts, that is to say when the tral court in the ‘exereise oils fact- discretion makes a mistakein think ng what the facts are or in choosing the version reported ty the witnesses in thelr testimonies,” Simi larly, a mistake in the facts will cause an efroneous decision. AS Frank realistically puts ‘This, perhaps, appear more dearly if we crudely schematize tne formal theory of the ‘decisional process, Le. the theory hala judi cial decision or judgment is the product of a substantive" legal rule applied to the facts of the case, by saying Rix F » D, where R {isthe rule, Fthe facts, and the D the decision or judgement. On that basis, an erroneous Fwilliead tanerroneous D. As the consists of the trial court's belief as {o what were the Brant J op. et, 650,316 Leow Paosorine actual past facts, the F and, therefore, the D will be erroneous if the court reaches its F by reliance on inaccurate evidence. No matter how excellent the legal rules land the social policies they embody, specific decisions wall go astray, absent competen fact-finding. Holmes, J once said that “the only use of the forms is to present their contents. just as the only use of a pot is to present te beer and infinite meditation upon, the pot will never give you the beer.” All of which, I think, goes to show that our trial courts should assume a large responsibilty for the ascertainment, as near as may be, of the actual facts of litigated disputes, In modern realist perspective, the evaluative process assumesa very important role, Thereis hardly fan act or activity that 4s not related to certain legal facts, that is to say facts which the legal order has laid down as productive of legal effects and conse: ‘quences, As Jerome Frank puts it vividly, many have tied to advance theories of law and the legal order and yet they “have no clients to advise... who will be disagreeable if it tums out that wile the law 18 clear and predictable, thelr rights — as determined by ‘court decisions in lawsuits involving those rghts—are not" (9) Opinion skeptics This subject deals with the second equation in- volved in the concept of judicial legal realism, that is ve MPM I Mo Wee Ae 286, Hage Roe ew [Leow Resist Peasreemve ai7 to say the role and effect of metalegal stimull on the Judital personality A.court opinion contains the rationalization ofthe ectsion handed down in a case. The opinion provides the basis for understanding why and how a decison was amived at and for evaluating its signicance as 8 judicial guldeline or precedent in future stmllar or nearly similar cases.‘® Thus, decisions of appellate courts are consulted in many instances before tans lating into positive acts the big and even the small determinations of conflicting ciaims, demands and ‘expectations. ‘There are some troublesome aspects of decision- ‘maicing, There are at least a set of conflicting major ‘and minor premises foreach and every issue presened by the contending parties n a itgation. Additionally. ‘awyers representing the contending parties invariably ‘manage to present the positions of thelr respective opinion of Justice Ricardo Paras of the Supreme Court of the Phulippines in Peralta v. Director of Prisons.52 ‘Aher agreeing with the materia facts stated in the ‘majority opinion, heassumed the" Tact" of good behavior of peltioner Peralta, and said: Prisoners who behave well are almost always liberated upon the expiration of the eouhar Pace Company w, Jeter. 244 US. 22, Franka Arita bser Schon 8 Yale aw orp "275 pr 285,320 eons Pauosoon minimum penal fixed tn the Judgment of Conviction, or within a reasonabie time there falter. In the present case, there being no {information that the pellioner has acted otherwise, and havingserved moretian double {he period ofthe minimum penalty that could ‘be imposed upon him. he should be released. ‘As this is the effect of the decision af the ‘majorly, I concur in the result. ‘Whether a judge considers certain facts as irre evant or assumes the existence of certain “acts” which ‘may not even be in the record of the ease, the point 4s Uhat the material facts are no more or less than What the judge say they are.® While there is a Bergsonian ‘element of intuition involved here, nevertheless, this fs both a recognition of and a concession to the de- ‘mands of change in order to adjust the legal ordering {o those shlls and variations. This means that until the adjudieatlve organ has applied the legal rue to the material facts dlsied from the mass of raw facts and ‘makes a pronouncement thereon, no law on the matter can yet be said to exit , Rous oF Exrenunct ato Socal Aovaerace It has been pointed out that the law is not the exclusive product of logic Indeed, aw is no longer ‘viewed to be a maller o simple deductive provess, The reason or tis that the law isnot concluded or ended fon the strenglhofamajor premiseand aminar premise. Sustice Holmes warned that loge has not been the life “SScpaone Bs Gnawa oF me Law, 82 Yale Unter Press New igen "Bclies.0.W, Me Pathof he Lau 10 arvardLaw view, ‘Lean Reus Pensnacrae 321 ofthe law. 5 for one can give any conclusion a logical form.5* The premises must frst have to be valid, that 1s to say based on social advantage™” before a correct ‘conclusion can be drawn. It has also been stated that {general propositions are nat suificient to decide con- flicing interests. Not only are they ambiguous, lend {ng themselves (o either side in almost any cause, but “they arealso obtuse as tobe of any use to mere fuman, beings." 3 ‘The points that there are human factors involved in the legal ordering of society. These factors are ‘unavotdable, especially nthe hard cages. and it does ‘not matter much that sometimes judicial legal realism may assume a cynical shape.® Justice Holmes felt ‘Hat this excusable aslongas considerations of¢odial advantage are taken into account. This ‘s exemplified im the case of Buck v. Bell where the demands of ‘soclal advantage, in the form of a eritical proposal for geneticwaste.igured prominent. Inthiscase. Justice Holmes really Jet his literary dagger fy. ‘The Buck case involved the conslitutionalty of a slate stertization statute. The material facts show that a feeble minded woman, an inmate of a ment ‘institution, whose own mother was also feeble: 1 Bhima: Tenahof theta, 0 Hered Reve Beane. 0.0. op. ct 47.487 i Spm lef 98, Harper i, New a 8 Homer & RN Siatmes. OW, ot ond aut. Cause Low "88H US, 200, 72 LBa. 1000, 47 Sk 58422 Leon Puosonty ‘minded, and herself the mother ofan itegitimate child ‘who was also feeble-minded. In his vote upholding the valldty ofthe sterization statute, Justic Holmes insisted that itis belter for all the world if, snstead of walling to execute degenerate osprings for erime for to let them starve for their imbeclity, society can DYevent those who are manifestly unit fom cont- ‘huing thetr kind, The principe that sustains compul- sary vaccination is broad enough to cover cutting off the falloplan tubes. Three generations of tmbeciles are enough.” ‘While Holmes opinion is ne more than a reflection of his principle of social advantage as a basis for solution of particular legal problems, no natural law Dellever would agree with Holmes for his comparison of compulsary sterilization with compulsary vaceina- tion. The jurigprudents who bellee in the natural aw would rather compare mandatory sterization with Tomicide but not with mandatory vaccination. For the naturalist jurisprudents, sterlization means the ‘mutilation of the human corpus and the destruction ofthe humanreproductivecapaclty, not heuniicative ability. Therefore, for naturalist jurisprudents, stest- zation may not be performed even ona feeble-minded person, The naturalist Jurisprudents would further argue that this cannat be done even on a feeble ‘minded person who has not committed any crime. But realist Jurisprudents, lke biologists. argue that while it may be aifcultto get rid of genetic waste entirely it Is to the advantage of sociely and even humane to diminish it as much and as quickly as possible. Otherwise, there would be no end to human ‘misery. A lethal gene does away with human waste fr sulfering in a single stroke. But a sublethal gene ‘unfortunately diminishes mental and physical health ‘Loca Resor Perspect 323, only. It causes a great deal of other losses really in terms of human resources. While hemophiliaes and Imbectles may have chuldren, #8 among them that the factor of heredity is great. And if they are en- couraged to beget children, then human misery would ‘ot be completely eliminated and “the cost in sullering. would be established as a perpetual and continuing cost, a kind of overhead of misery. However small the ‘cost might be per generation, t would increase without limit as ume went on, We can either pay the fine romply or we ean delay or aveld payment altogether = by paying in another way."®! ‘Justice Holmes did not stop applying his prin- ciple of social advantage, Its this principle that kept ‘him voting in favor of novel forms of social and econo- ‘iclegislation se longas they werenot constitutionally suspect, such as statutes setting minimum wages. maximum hours of work, compulsary insurance for bank deposits. limitations on employment contracts. ‘These, according to an observer, were measures which 4n Holines' private correspondence he would probably characterize as “social humbug” Thus, regardless of ‘is own feelings or altitudes, Justice Holmes fet that Af the people wanted to adopt some social ar economic ‘theory other than the prevailing conceptions, that was ahet oom business so lng a8 id not violate the constitution, Some of the best exposition of Holmes’ theory of social advantage are found in his judicial opinions. In Vegelain u. GuninerS? Justice Holmes predicted the cong tte we 0 Ms Pe 189. Jonathan Cape & Caa ee 924 Leon Pauesonie movement away from the early policy of condemning peaceful picketing a8 an legal labor concerted acti fy. He said: “The true ground of decision are consid- erations of social advantage, and its vain to Suppose that solutions can beattained merely by logle and general propositions ofaw which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and ‘Sill more rarely, if ever, are capable of un- answerable proof. They require a special {taining to enable anyone even to form an Intelligent opinion about them. Inthecaseof Lechner». NewYork JusticeHolmes expresed the basis of his theory of social advantage. ‘There he slated that a "constitution... is made for fundamentally difering ews.” Echoing Justice Holmes, Learned Hand said that “a constitution is a great historical compromise and not a set of durable prin- cenples." In the Lochner case sate, probed bakery employees fom working more than ten hours a dey. ‘he petnmy wee cng emi oe come wing general principle, namely. the righ of the Eoventinent to enact statutes protecting the heath Enroty and weltare of the peole on tne one hand, and the feadom of navicos! persons lo enter into cot tracts concerning thelr own ior, om he other hand. Innis string dissent, Josice Holes sa that general Dropostins or competing market theories do ct See ES TG Lol Bs uve. vor [Leon Rusuor Penerectnvs 25 decide whether a particular social welfare legtation {s constitutional ar sound economic policy. Forsustice Holmes, the lawmaking bedy should be free to choose between the competing principles. Consider the language Holmes used in this ease in expressing and applying his concept of social advantage: ‘The case Is decided upon an economic theory [advocating that the state should allow free market without interference from the state} which a large part of the country does nol entertain. If it were a question of whether I agreed with that theory, | should desire to study it further and long before aldnigup my mind. But...1stronglyelieve that my agreement or disagreement has |. nothing to do with the right of a majority to embody their opinion in law. It is setled by ‘various decisions ofthis court that state con stitutions and state laws may regulate life in many ways which .. we might think inju- éicious, or.. which interfere withthe liberty tocontraet. Sunday laws and usury laws are ‘ancient examples, A modem one is the prohibition of lotteries. The liberty of the | Gllizen to do as he ikes so long as he does rot Interfere with the liberty of others to do the same . is interfered with by -. every state or muiilpal institution which takes his ‘moneyfor purpases thought desirable, whether hhe likes itor not. The lth Amendment docs not enact Mr. Herbert Spencers Social States advocating the idea that every person Is free {o do which he or she wills, proved st does not infringe on the equal freedom of another]. ‘The decision sustaining an eight-hour law for miners is sUll recent. Some of these laws326 Leon Provore ‘embody convictions or prejudices whch judges fare likely to share. Soine may nol. But a Constitution is nol intended to embody a particular economic theory, whether of pater~ ‘alismand the organizedrelation ofthecitizen to the state or laissez fare. It's made for people of fundamentally differing views, and the accident of our nding certain opinions natural and familiar, or novel and even ‘Shocking, ought not fo conclude our judg ‘ment upon the question whether statutes ‘embodying them eantlict with the constitution, fof the United States. Inthe case of American Banana Company v. United -Frutt Company. Justice Holmes expressed his realist View of the law as the expression of the soctal force ‘and experience upon human activity in a politically ‘organized society. There he declare: Law isa statement ofthe circumstances 1m which the public foree will be brought to ‘bear upon men through the courts.©® In Abrams ©. United States? Justice Holmes articulated even more his theory of social advantage {nd the current considerations of poliey as a lever in the modem judicial process. He was skeptical too aboutman's bility to discern absolute truths. Hesald: Persecution for the expression of opin- tons seems tome perfeely log. Ifyouhave Bisa tee tous eae a teen years Jater fe relterated this view in his Jeter worsens Sr us Cnn eet Bras0 Us. 18 40 Sct. 17, 65 LEA 1173 SSeS eons Reser Pensracrie ‘ ‘no doubts of your premises or your power and want a certain result wath all your heart you naturally express your wishes in law and ‘Sweep away all opposition. To allow oppa- ston by speech seems to indicate that you ‘think the speech impotent. as when a man says that he has squared the eircie, or that ‘you donot care wholeheartedly for the result or that you doubt either your power or your ‘premises. But when men have realized that time has upset many Sighting faiths, they ‘may come to believe even more than they believe the very foundations of their own ‘conduct that the ultimate good desired 1s Deter reached by free trade in ideas — that the best test of truth #8 the power of the ‘tought to get itself accepted sn the compe- {udion of tie market and that truth is the ony ground upon which their wishes safely ean bbe carried out. That at any rales the theory ofour Constitution. Itisan experiment, Every year, not every day, we have to wager our ‘Salvation upon some prophecy based upon Imperfect knowledge. While that experiment {s part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, lunless they so imminently threaten imme late interference with the lawl and press ‘ng purposes of the law that an immediate cceckis required tosave the country. (regret that I cannot put into more impreseive words ry belief that in thetr conviction, the defend- ants were deprived of thei rights under the Constitution of the United States. 37328 Leon. Paesoony And inbis vild opinion led in Duaxe. Carrigan.6 ‘Justice Holmes again expressed his realist view that ‘he lfe of the law has not been logic but human experience in terms of social advantage. He said: ‘There ts nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of tts words to prevent the making of social experiments ‘that an important part of the community desires, in the insulated chambers afforded by the several states, even though the ex periments may seem futile or even abnoxious {fo me and to those whose judgement I most respect. EE, Rout oF MataLooaL Sra. ‘When Justice Holmes expressed bis striking con- cept of law as the “prophesies of what the courts will ddo in fact and nothing more pretentious’, and when. Joha Chipman Gray articulated his telling analysis ‘hat “the law is the whole system of rules applied by the courts and that a law or a statute's only @ source ofthe law’, they opened a broad fleld of jurisprudent- fal investigation, Justice Holmes and Professor Gray posited the idea that rather than examine what the Courts say, its better to investigate what they really do oF what they will do In fact. Thus, attention is ocused on the empirical factors which underlle the Judicial process. Stress is given to the predictory use fof court decisions in light of the infuence exerted, in fairly uniform manner, by certain metalegal factors fon the adjudicating officials, whenever they sit in ©9257 US. 912, 42.51 124, 66 LEA. 258, Loca Ress Peasrecroe 329 Judgement of the hard cases. It cannot be gainsald that metalegal factors have a considerable effect on, feven as legal rules play their part in, the judicial process, even regardless ofthe circumstances that the facts involved are similar or nearly similar, (2) Formalist Concept “The formalist concept of the judicial process ts characteristic ofthe positivist perspective oftenature of the law. Legal formalism is eriicized as a simplif cation of legal reasoning. In this rigid model, the Aecisive legal rule serves as the major premise, the ‘material facts constitute the minor premise, and the decision is reached strictly by deductive reasoning. In other words, decisions are sald ta inevitably follow on the basis of stare decisis. (@) Modern Realist Concept ‘To the modern legal ealists, the formalist concept oftheadjudicative process fs nothing but "mechanical" Jurisprudence, Justice Holmes, in particular, con- ‘demned this "black and white" approach as simplistic and warned that in the adjudicative process "what the courts will do in fact 1s not achieved only by the Interaction of theruleson thefaets.0° Taelaw, explained Justice Holmes, “is more rational and more civilized ‘when every rule tt contains is referred articlately and definitely to an end which {1 serves, and when the {grounds for desiring that end are stated or are ready to be statd in words."1O Here Holmes was positing the a, Anes Bog Conga ied Pa Comp 218 ie Ol The Patho he La, 10 Harvard Law Reve, 487,467. due Haines ve sme igetrtons of tes 36 est of the aad lga approsch330 Leon Paosorie view that there are certain metalegal stimull at work in the adjudicative process. In different words, the pplication of rules on the material facts of a case Is ‘but one of two quantities in the equation of legal realism, Since the lav, explained Justice Holmes, 1s, the statement ofthe cumstances in which the public force will be brought to bear upon men through the courts,"7! then, added Justice Benjamin N. Cordozo ‘of the United States Supreme Court, “no system of wing law ean be evolved only by ie interaction of rules fon the facts and no judge of a high court worthy of hls office will view the function of his oflice so mar rowly.*72 Justice Holmes eredo is repeated here to empha- size the ole of metalegal stimu in the judital process: ‘The life of the law has not been logit thas been experience, The felt necessities of the times, the prevalent moral and politeal ‘theories, intentions of public policy avowed or unconscious, even the prejudices which judges share with their fellow men, have had 1 good deal to do than the syllogism in de- termining the rules by which men should be governed.” ‘The role of the metalegal stimull in the Judicial process is especially tuein theadjudieation ofthe hard 7 pmarcan Banava Cargary Une Put Company. 218 vs. ggg So cba Se Soya copa ‘Univegiy Prev, few Haven, Enpaia supped “Poona Os ie Comot tne 1 LA Brown & Com ‘Local Reausr Ponsrocr 331 cases, eg, where the applicable rule or rules appear {ndeterminate; where a prior decision is to be reversed, modified, or discarded: where a prior decision is likey tobe established apart from legislation: or where a rule of principle stands to be ignored. Thus, courts have ‘ivided and wall continue to divide n deciding conic! {ng or overlapping interests even when the same legal trae is applied to the same or nearly similar facts. Indeed, courts have viewed or may view a problem one ‘way at onetime and ina different way at another time. fan illustration is necessary, take the question of whether the right of free expression, that 16 10 say speech and press, can be suppressed oF not In 1923, this issue reached the Supreme Court ‘ofthePhilippines in theleading case of People. Perez.74 With three Justices dissenting, the majority, speaking through Justice George Malcolm, held that Use words used by the accused Perez in maligning the American ‘chief executive inthe person of General Leonard Wood can he suppressed because of their dangerous ten- ‘The words used were more than a shape of ‘speech for there was “a seditious tendency in the words ‘used, which could easily produce disaffection among the people with a disposition to remain loyal to the {government and abedient tothe laws. .... Perez made 2 statement. . which tended to instigate others to cabal and to disturb the peace of the community and the safety and order ofthe government." This view ‘Was reiterated in the cases of People v. Feleo"® and People v. Nabong.?® Fars Pa 520. 7857 Ph, 485,332 Lean. Prtooor A quarter of a century later, the same question was again raised tn the Supreme Court in the case fof Primicias v, Fugoso.77 In the meanwhile, thats to ‘say by 1946, the composition of the Supreme Court ‘pad changed from a colonial court to a national court. Jin the Promicias ease, Mayor Valeriano Fugoso of the ‘ity of Manila refused to tssue a permit to the Coalesced Minority Parties to hold a public meeting for the purpose of petltoning the government for a redress of grievances, The mayor feared that the speeches to be delivered by this defeated group might lundermine the faith and confidence of the people in their government and thus breach the peace and dis- rupt public order. In refusing to see merit in this contention, the Supreme Court, speaking through ‘Sustice Feissimo Feria, discarded the dangerous-ten- ‘dency rule of the previous cases and adopted the Holmesian clear-and-present-danger rule and held that “Tear of serious injury cannot alone Justify sup- pression of free speech and assembly {arid} to Justify ‘Suppression of ree speech there must bea reasonable ‘ground to believe that the danger apprehended ts {imminent [andl thatthe evil tobe prevented isa serious ‘Three years later, the same problem was once ‘more raised in the Supreme Court in the case of Espuelas v. People” Dy a 6-0-3 vote, the Court, speaking trough Justice Cesar Bengzon, discarded the clear-and-present-danger rule and retumed to the dangerous-tendency rule, holding that “the language used tends to sUr up general discontent to the pitch of legal courses, inducing the people to resort to "SRE, Loa, Reauisr Peseroceme 333, ‘legal. methods other than those provided by the constitution in order to repress the evils which press. ‘upon their minds." Six years aller the Espuelas case, the Supreme Court was again called upon to rule on the same issue fn the case of American Bible Society v. Cty of Manila.” ‘While the problem in this case pertained to the free exercise and enjoyment of religious profession and religious worship, the Court was afforded with another opportunity to deal with the problem of Whether the right of free expression ean be supp essed or not, “An ordinance of the city required the plaint, who is engaged in translating, distributing And selling bibles and other religious Iterature‘ the Philippines, to secure a permit and pay certain license fees. in ruling that Une eity ordinance cannot be applied to the plaintif, the Court held that to require the plaintiff to secure a permit and pay license fee would impair Its fall exercise and enjoyment of religious information.®®” And so, once again, the Supreme Court moved away from the dangerous-ten- dency rule, holding that if this freedom could be restrained, sch restraint could be ustified, ike other restraints on freedom of expression, only when there 1s a clear and present danger of the substantive evil which the state has a night to prevent. ‘Ste months later, in the case of Cabansag v. Femandez.® the Supreme Court, nan unprecedented hor is, se. ‘team ineoding vorsip aod the ease Were ae ones of ‘pa antian pte bythe Son304 zou Pauoeoniy ‘move, made use at the same time of the dangerous- tendency rule and the elear-and-present-danger rule. Ik is to be noted that it has long been regarded in constitutional law that these rules are quite distinct from each other. In view of these contrasting decisions, what, then, Is the law on the issue of whether freedom of speech and press can be suppressed or not? John Chipman Gray, in dealing with a similar question on the role of the metalegal stimult in the Judicial process, puts it strikingly this way ‘Take an instance from the constitutional lawofthe UnitedStates, suppose Chief Justice Marshall had been a8 ardent-a democrat (or republican, as itwas then called) as he was federalist’ Suppose instead ofaating Thomas ‘Selferson and loving the United States Bante Marshall had hated the United States Bank and loved Thomas Jefferson, how diferent ‘would be the law under which we are living Today.## Commenting on a similar predicament, Jerome Frank, in the tradition of lolmes and Gray aply stated that the answer would have varied according to the date when the question was asked, the composition ofthe Court, and the shifting opinions ofits members, ‘The point for the modern realist approach is that there are indeed ceriain unavoidable metalegal factors operating on the judicial personality of the adjudicating olfials, There ie simply a great deal of Leow Reser Peaster: 395 iference between the legal rules and the same rules, fested in action, just as there 18.4 good deal of diference between the facts parading before the tral courts and the facts found by the courts. No. study tn jurisprudence ean alford to disregard the metalegal Jlactorsin the ordering ofhuman conduct and expertenee. Undoubtedly, for the judicial legal realists, there ls 2 Jhuman equation in the life and process of the law. Legal rules and material facts constitute only one of two quantities that make up the law. ‘The second ‘quantly is composed of the metalegal stimall which play a silent but no less important role in the judital process. They provice not only the means for creative {uinking but also the setting and justifeation for the play and action of what Holmes called “experience and Social advantage.” However, judicial discretion and metalegal stimu donot actually come to playin all types of cases. There are problems involving hitman activities which do not provoke the exercise of judicial discretion, if, for example. a will, other than a holographic wil, 1s [resented for probate, having the attestation of only fone witness, then Article 808 of the Civil Code of the Philippines, which requires at least three eredible attesting witnesses, wil have to come into full appl cation, The result would be the denial ofthe will which ‘mall other respects is valid, Prediction in this class of cases as to what the courts wil do in fact is easy. (9) Metalegal Factors Examination of the metalegal factors alfeting the Judicial provess is not merely a matter of cuosiy. It ‘sa serious Jurisprudential issue, Judicial legal realistn ‘ovestigates the conflicts of interests In Ught of their336 eons Panesar setting ‘This is where the functional perspective and the ‘modern legal realist perspective fe rom each other.6° ‘Functional jurisprudence insists that courts are to think 4m terms of the jural postulates, the soclal interests derived therefrom, and the national policies expressive for indicative of such social interests, In emphastng the interest of secety, functional Jurisprudence is exit cdzed by modern legal realists for virtually disregard ing the metalegal factors that unavotdably affect the {adlelal process. ven personal values and attitudes. ‘of judges influence their legal interpretations and ac- ons. ‘There is need to deal even with the general and legal edueation, economic status, social and religous Dackground, legal and political views, intellectual inclinations, and temperamental traits of Judges. Tt ‘would be very difleult for Judges to get away from certain factors which thelr training and habits have ‘become parts afthetlives, Indeed, "ignorance, prejudice, ‘accidents of expertence, favor, indolence, eorupton, Ihave fad a good deal to do with law and how the law works in the communty."8 As living, wiling human beings Judges cannot emancipate themselves from ‘such factors. Metalegal factors affecting judilal personality are ‘not unduematters,Ubatistosay they arent derogatory fof the judicial functions unless, of course. they are Immoral. As Jerome Frank puts i, “to recognize them prank. J. What Costs Doin Fact, 26 ints Law Revie, 645, 955 i J Wo Ws 10, Hae a Raw Ne mint K. Te Bae Bus, 91. Ocean Press Publis Leon. Reser Pensrecrnve 337 1s part of wisdom.” It s not surprising that a fudge tn arriving at a decision in the hard and important cases Should be inluenced or aided by metalegal factors. ‘Taeir importance in the adjudicative process les in the really that decisional behavior is very likely to be affected by them, obscurely or articuately, uncon sclously or avowedly. Thomas Reed Powell feels that ‘ese. metalegal factors may even result in Hogieal and ‘paradonial vagaries" and "varieties" Powell espectively ‘alls them) approaches to decisions in tbe hard eases.©2 It should not be a cause of wonderment, then, that a judge will actor decide first and Justily is or her act oF decision afterwards. Since all persons are more or Jess partisan, then, “emotions, great or small. compel the judge to choose hi side... When that choice is made, historical events, social and economic facts, Judicial precedents, and legal philosophy are ‘marshalled and emphasized in such a way as to bolster the judge's wiewpoint."®7 In People of the Philippines vu. Judge Busebio Lopez the Supreme Court othe Philippines, speaking ‘rough Justice Gregorio Perfecto, recognized the role of metalegal smlt in the Judlclat process: ‘There cannat be any question that the reglementary mandate (of Rule 124, Section I] that “justice sall be impartially administered” ‘mplies that those who are called to administer SSpopa TV Vor Ceerno ae ‘ano; tama Unies Pres, New York "eum he Das oes 6, Onna Pubs New338 Loa. Pasesorer Ht must act freely from all factors that may Armpair their impardalily. Bias is one af them, 1 deprives the person shackled by it of the ‘opportunity to have a clear view of the pending {seve so a8 to form a sound Judgment and of the freedom of choice between right and wrong sm a given ltgation. However, not all bia is harmful. No judge Asrequired tobe tre rom all kinds of prejudice. To. make that requirement is to aitempt an Impossibility. No son of a woman Is free from all prejudice. Its impossible Lo find a person ‘who can be absolutely impartial on everything. All judges have thelr prejudices. Each and everyone ofthe Supreme Court entertains some ind of prejudice, whether politcal, moral, religious, artistic, economic, legal or otherwise Each one of us the child of our past personal experiences, surroundings. education, ain ‘ng, associations, and each one ofthese tends ‘to create some kind of prejudice. In the clearest expression yet of the modern realist thinkingon therole of the melalegalstimuliinthe judging process, which is quoted at length, Jerome. Frank, ‘Speaking for the Court of appeals of the United States An the case of In Re JP. Lnahan®? sald Democracy must, Indeed fail unless our courts ty eases fairly, and Unere can bene far {tial before a judge lacing n impariaty and disinlerestedness. “If, however. “bias” and 29,96 F and 080, The cae Lavate he question of whether the joie el “cen based. The Coot ed “Use pedis Leon Rents Peasrecrne “partiality” be defined to mean the total ab- sence of preconceptions in the mind of the Judge, tien no one has ever hada fair trial and ‘po one ever will The human mind, eves in ‘fancy, is no blank piece of paper. We are ‘bom with predispositions; and the process of ‘education, formal and informal, ereates atti {hides in all men which alfect them in judging “ situations, athtudes which precede reasoning 4m particular instances and which, therefore, bby definition, are prejudtoes. Without acquired slants, preconceptions, life could not go on. Every habit constitutes a prejudgment, were those prejudgments which we call habits absent in any person, were he ablged to treat ‘every event a5 an unprecedented ersls pre ‘seniingawhollynew problem, hewould goad, Interests, points of view, preferences, are the ‘essence of living. Only death yields dispas ‘Slonateness, for such dispassionateness.sig- rides utter indlference. To live isto have @ ‘ocatlon, and to have @ vocation isto bave an ‘ethics or scheme of values, and to have a point of view is to have prejudice or bias. «= An “open mind,’ tn the sense of a mind containing ‘no preconceptions whatever, would be a mind ‘capable of learning anything, would be that fof an utterly emotionless human belng, cor- responding roughly to the psychiatrist's ce- seripton of the feeble-minded. More directly to the point, every human society has a multitude of established attitudes, «unques 399 ‘aterm a fandamently false noon of te pejudie which ‘aii Judea lier”‘oned postulates. Cosmacally, they may seem. ‘parochial prejudices, but many of them rep ‘esent the community's most cherished values and ideals. Such social preconceptions, the ‘value judgments which members of any given Society take for granted and use as the un- spoken axioms of thinking, ind their way nto ‘at society's legal system, become what has been termed the valuation system of the law. ‘The Judge of our society owes a duty to ac in accordance with those basie predilections in- hheringinour legal system (although, of course rhe has the right at mes, to urge that some of them be modified or abandanec). The stand- ‘ard of dispassionateness obviously does not require the Judge (0 rid himself of the un conscious inlluence of such soclal attitudes, In aditon to those acquired soctal value Judgments, every judge. however, unavoldably ‘has many idlosyneratie earings ofthe mind” luniquely personal prejudices, which may in terfere wita his fimess ata tial. He may be stimulated by uneonscious sympathies for, or aniipathies to, some of the witnesses, lawyers or pares ina case belore him. ... In Expate Chase, 43 Ala, 003, Judge Peters said triles, however ridiculous, cease to be tries ‘when they may interfere with a safe admin {stration of the law. Frankly, to recognize the existence of such prejudices is the better part of wisdom. ... Much harm s done by the myth that merely by putting on a black robe and taking oath ofoliceas.ajudge,amanceases to be human and strips himsel! ofall pred- leetions, becomes a passionless thinking sar racine... The judge's decision turns often ‘on What he believes to be the facts of the case, ‘As a fact‘inder, he is himself a witness — a witness of the witnesses: he should therefore, Team to avoid the errors which because of prejudice often affects those witnesses. Jerome Frank felt that its foolish te loole down on or beashamed ofan otherwise natural or humian elem: ent in the judicial process. There is really no reason ‘why there Should be any pretense to be other than a hbuman being. Frank explained: ‘They have put the best things to the most ceil uses. But that personal element, whether ‘one likes it or nat, is an inherent part of the esisional process under ary form of gor ferment. Its, therefore, foly to conceal its presence in the workings ofeourts ina democ- racy. To conceal it, indeed, isto ensure that {f operates at its worst surreptitiously. Here, as elschwere, we must distinguish the desirable and the possible. The wise course ‘s openly toacknowledge the personal element, and then todowhatever ean praclicaly be done to get rid of tts evils and to bring about sts constructive uses. For the rst, we shall have to put up wilh i, however bad, as we do‘wath, Ineradicable sickness end death? ‘The role of the metalegal stimuli further explains ‘why legal Journals and law reviews have a somewhat Alferent task to perform everytime a new member of an S0pmuacd, MaderendAncenetagatasmatin: JonDos (company Arata 35 Note Dane Langer, 207, 4342 Lea, Paasorny ‘appellate court is appointed. Indeed, one ofthe points ‘hat should be considered in the eievalion of a person toa high judicial position sa complacent mind because this 1s @ dangerous mind, ‘The metalegal factors that may stimulae a judge fare these set by the witnesses, by the lawyers, by the Judge's legal astudes and prejudices, by the judge's ‘predilections and preconceptions, by historteal events and political precedents, and by current economic postulates and social values. ‘The frst two and last two metalegal stmt are ‘environmental in character. A judge is surrounded by them, ‘The two middle metalegal stimull make up the personal element and are predisposltional in character. ‘A judge has them even when he or she is not holding court oF deciding cases. (a) Suratus Set by the Winesses It has been sald that the witnesses in court con- stitute the axis on which the decision of tne judge may fume ‘The oral testimony is one of the means ubiized by tne contending partes in the ligation of eonficling Interests. The siimulus set by the witnesses on the Jadge s principally dhe result of thew statements, ges- ‘ures, manners, moods, hestiatlon, embarrassment, grimices. Indeed, the “Longue of the witness fs not the only organ for conveying testimony.” The demeanor of the witnesses while on the witness stand is revealing Tayo Testi Copaty s0 Beton anata {ony Rewssr Pessrecane er and slgnicant in the judicial process. But there seems oben way by which the honesty ofthe witnesses ean be asceriained by the judges. Indeed, judges have disregarded portions of testimonies yet gve eredence to the portions thereof which they believe to be consistent with the facts, But the fects are precisely the matter in dispute. Thus, even when the witnesses hhave falsified their testimonies on some particular ratters, it does not necessarily fellow that Uneir entre testimonies are discredited. Judges may and do credit. those portions ofthe testimonies of witnesses which they eer worthy’ of elie®? In the case of in Re Fried ® ‘Jerome Frank, speaking for the United States Court of| ‘Appeals, stated is thls regard that “in each lawsust that cholee of what ss deemed reliable testimony depends tupon the unique reaction of a particular tral ude t0 the particular witnesses in a particular case." ‘And sot that a witness may be trusted implicitly or be considered honest by one judge and be treated ‘a rascal by another. The fact, then, that a party as ‘witnesses is not the important thing but whether the Judge will believe those witnesses. In judicial legal realism, the truth may not always come gut, and neither is there any assurance that the Jullge, will Dlieve the witnesses even when Uney tel the eit, Pethaps there should be training of some Kind for ‘wil judges in the behavioral sciences or allow the use ofthe tools of behavioral sclence in order to help them ‘nthe evaluation of the testimonies of witnesses, ‘The reality of this type of stimulus on the Judicial personality is recognized in a rule of evidence which Thee & Motos, 28 SCRA 193 Sota pa aot. 462saa aoa Prnosoray ives great weight to the ndings of judges on the credibly of the witnesses who have appeared before them, Thus, unless there is a flagrant violation, appel- late courts do not disturb the tal judge's ndings on the matter of credbaity of witnesses. If this were the only matter tavolved in this parti= ‘cular metalegal factor, then the task ofthe courts would not be dificult. But something mare than the witness credibility in terms of whether he is a rascal or not is ‘involved. As pointed earlier, Jerome Frank skilfly ‘draws aitention to the fact that Uhere isa great deal of ‘uncertainty concerning the capacty of a witness to observe the facts or events clearly, to remember them with some degree of accuracy. to make known thelr ‘memories in a coherent manner, Frank stated that “he witnesses, being human, may male mistakes in thelr ‘original observation of the facts, in thelr memories of what they thus observed, or at the trial in their reports oftheir memories, Some witnesses delibertaly ie. many others are biased, and, because of bas, unconsciously istort their stories, ‘ial Judges who are themselves merely faible human winesses of the witnesses must guess who accurately testified about the actual past facts. A judge cannot allord to make a mistake by allowing too much latitude to a lawyer in testing the credibility of a witness in terms of the latter's motives, or partisan attitudeas toamount toa psychiairielnquiry Ito the unconscious drves of a wiiness testifying in court. When it gels to this point, the problem of the right of privacy versus the need to get at the truth arises.% Itisnot dificult tosee, then, why an unmarried Sra are et ean Waness 50 Yo Un Goural iaate MeN oa, Reausr Presoporve : 5 girl would charge a man ofrape a8 a face-saving cevice rather than admit that she vallingly submitted to the fact. Thus, a judge may make @ mistake on his or her hunch or guess and yet proceed to decide the fate of a lfe or integrity that hangs on the balance, () Stimutus Set by the Lawyers ‘The metalegal stimulus set by lawyers are generally in two directions. One has to do with pre- fessional reputation and the other with professional Dearing, With regards to professional reputation, two areas are further volved. ‘The first is the lawyers sincerity ‘and inclination for the"Hght and “fas cases, The other 4s the intrinsievallty of the lawyers theory of a case, hs arguments on the law and the material facts in ‘volved. i Concerning the influence of professional bearing, st can be said that this stems more from the lawyer's respect and regard for his own responsibiliies as an officer of the court. However, they are very rarely taken {nto account. A judge wil try her or his best to overlook them, for as long as this ean be done, without exposing the court to embarrassment and public ridicule, Tn the event that they have to be considered. jucges ty to do so without alfecting the ments af the controversy by considering such violations directly with the lawyer himself in the form of contempt elation ar suspension, from the practice oflaw. Incase of suspension @ higher court usually tales a hand, fortis is generally. ground for disbarment proceedings. (2 Stiruus Set by the Judge's Legal Attinies and. Prejudices336 Leoas Panosonn Legal atutudes and prejudices alfect judicial per sonality. This metalegal stimulus does not mean par tally nor distortion of the thinking of judge. Itshould rot be considered as a prepossession of any sort under ‘which anyone or anything is already prejidged. The legal attitudes of a judge are really the sum of his er hher inclination or bent on the matter in dispute, Ibis, ‘not abnormal fr a Judge to have such mental state or ‘disposition, nor is it unnatural Wat a Judge will have them. Indeed a judge is not any less amenable to other kinds of atitudes than any of the members of society Putting on a Judicial robe does not plate a halo over the Judge's head. Jerome Frank explained it cleary that ‘to recognize this metalegal stimulus i part of wisdom. (@) Stratus Set by the Judge's Predilectons ‘and Freconceptions ‘This type of meialegal stimulus appears sn two forms, namely, the judge's legal sympaties and legal antipathles Legal sympathies are strong lings which arise fom a judge's community of experience, education, Interests, and even temperament, Itis not regular that ‘judge should sympathize witha cause which s nearest his or er own views. Sometimes the answer to a grave for important question may depend on judicial pred lections and preconceptions.°® Indeed, Chie! Justice ‘Earl Warren of the Supreme Court of the United States “Views hls role as ‘stering the law rather than being steered by it"? oo RES Sg bran soos oa, Reasst Persone 347 Jastice Gregorio Perfoco's predilection for human rights Js wellknown in the Philippines, It ie an area where he was deeply outspoken all oo clearly relecting his legal sympathy forthe protection of eli rights and Liberties, regardless of whether or not over-protecion is error. Indeed, Justice Perfecto considered it his lofiy {duty and responsiblity fo uphold human rights against claims of legslative supremacy and adverse gavern- ‘mental action. He was unusually sensitive to sues in volving human rights, In the Supreme Court ofthe United States, Justice rank Morphy had a similar predilection. During his tenyears inthe court he established himself as the most consistent defender and eloquent advocate of human Fights. Sald he in one case: “If this Court s to err in evaluating claus that freedom of speech, freedom of the press, and freedom of religion have been invaded, far better that it errs in being overprotective of these precious rights."® Justlee Murphy cast only one vote ‘against buman rights and this occurred in the famed Gobits case®® ut twice repented it in the equally famous Opelika! and Barnette! cases. No wonder ‘Jerome Frank called Justice Murphy a civil Uberties Sustice 102 ‘The Opelika case involved the sale of religous in RE YS Ol SAYS. 885, 68 86 LE 101 ‘Serine cha Dt Gobi 810 US 666, 85. 1 Be, bo, are : 101i agi Ste Doar of Easton Samat, 10S. oot. grote or Let tesa, cee ii Stee mp The Cols Atal, 8 Ye a34 Leon Prosar tracts and pamphlets by the Jehovah's Witnesses. Justice Stanley Reed who penned the majority opinion, characterized this acuity as more of a commercial {gansaction than an exercise of religous freedom. The majority fet that the aclhty involved sociation of contributions and, hence, money-making. requiring payment of a Ueense lax. Justice Frank Murpliy Bled vigorous dissent. Aller emphasing that the solicitation fof money was made wilhout thought of gain but only in exchange for religous ilerature to deiray the evan ells expenses tosustain him in hisilenerant ministry, ‘Justice Murpiy repudiated the earlier position he took ‘mn the Gobiis case by saying that “the holding of the ‘Court sanctions a device which in our opinion sup- pressed or tends to suppress the free exercise of religious ‘practice bya minority group.” By further admitting that the Gobitis case “was also wrongly decided” Murphy asked for a more realise examination of the decision Jaiddovm in thalcase, Inthe Bamettecase, which Gnally ‘overruled the Gobi decision, Justice Murphy fled a ‘concurring opinion where hesaid in overturning his own votein the Gobis case, that “ofcal compulsion toalfirm ‘what Is contrary to one's religious beleis the antithesis freedom of worship which was achieved inthis country only afler what Jefferson characterized as the ‘severest contest in which T have ever been engaged.” Legal antiphathies, on the other hand, are settled versions or dislikes for certain legal or politcal Uneories (oF Hdeas, Again, IU §8 not inconcelvable that a Judge should oppose of distike Ghose that are farthest from his own convitions or consider propositions or values from the social class with which he ienties. An ex umple is Une antipathy of Justice Greogario Perfecto to pital punistiment, Also familar is the antipathy of ‘Sustlce Oliver Wendell Holmes to the natural law Leon Resse Peserecmve 349 tory moving him to say “that jurists who bélleve in the natural law seem to be in that naive state of mind that accepts what has been fansliar and accepted by them and their nelghbors as something What must be accepted by all men everywhere,"109 ‘To repeat for emphasis what Jerome Frank said, “the mind ofa judge's plainly nota blank sheet of paper. 1s a store of legal sympathies and legal antipathues acquired in the process of maturing and education.” But these metalegal stimull come into operatian only because certain issues strike familiar notes thereby selling the Judicial tone that distinguishes a judge a to whether heisa conservative ora liberal. This explains also why Judges issue dissenting and concurring opinions int court decisions, (©) Stutus Set by Historical Events and Poltical Precedents ‘The metalegal stimull set by historical events and ‘politcal precedents, while generally transient are, none: ‘theless, decisvein the udical process. This specially ‘truein lie great constitutional questions, e.g. delegation of legislative power, vested righ, due process of law, ‘equal protection of the law, cil bert. ‘An thustration of the struggle that goes'on in the Judging process in which this particular metalegal Tacfor played decisive role 1s furnished by the re rnowned Gobius case. The Supreme Court of the United Slates, in an 8-0-1 decision, ruled that seool 2 thoriies could lawfully require the tracktonalllag salute, an, HN, ONY, Te Nea Lou 81 Hand La Re350 ‘Leon Pacsony regardless of honest and conscientious objections that to salute the flag and reate the pledge of loyalty and allegiance to dhe Republic for which the flg stands is fan aflront to one's religious conselence and freedom. The ‘majority, speaking through Justice Felix Frankfurter, stated the core of their position by saying that “the Question remains whether school children, lke the Gobitis children, must be excused from conduct required of all the other children in the promotion of hhational cohesion. We are dealing with an interest Inferior to none in the hierarchy oflegal values. National ‘unity 1s the basis of national security. The ullumate Foundation ofa free society isthe binding ie of cohesive ‘seniiment. The fags the symbol of our national unity. transcending all internal dilferences, however large. ‘within the framewok of the consltuon.” nas, inthis ‘ase, the interests in national unity and security were ‘used (ofusify Lhe requirement of fag salute even to the ‘point of compulsion, on the theory that national security fand unily demanded certain sacnfiees of individual Tights, including possibly religous freedom, “The matter involved inthe Gobits case was not new ata to Justice Felix Frankfurter. When Justice Franke fuarler was slil professor of law at Harvard University, he had already expressed his views on the matter. In ‘2 memorandum prepared by Professor Frankfurter for Newion D. Baker, Secrelary of War of the United ‘Slates, Professor Frankfurter articulated his belief (hat eonscientious objectors . .. who stand in uncompro- rising opposition (o combatant or non-combalant Service should be convicted and confined.” Inthe Goblis case, only Justice ater Chief Justice) Harlan F. Stone Gissented, And his dissent was understandable. The matter involved in the ease was not new to Justice Stone tliher. Ina paper published before his elevation to the ‘Loony Reausr Peasrecrv 351 Supreme Court, Professar Stone stated that “all human experience teaches us that 2 moral Issue cannot be suppressed or settled by making ils supporters mar~ ‘yrs. 710" TLis noteworthy that Justice Stone's dissent I the Gobutes case also begins with an appeal to the Jesson of human experience. He said, “history teaches us that there have been few infringement of personal Uberty by the state... which have not been direted as they are now at peuiueally helpless minorities, Im retrospect, it 1s nat difficult to see where the philosophy of tae Gobiis decision was later overturned by the same jurists who were faced with a sumllar set of material fets and the same rules of constitutional law that they had encountered in the fist flag salute case. While it was forged in the name of national unity ‘and securiy at a time when the nation was faced with ‘a clear and present danger. t was dane at theexpense tr suppression of the free exereise and enjoyment of religious worship by coercing the Gobitis euldren to ‘express something or folow an act which they did not hhonestly and sincerely believed in. The coereion took the form of erimial prosecution and, upon earnaetion, Imprisonment of the parents of children of school age ‘who reluse to send their children to school, There was a direct affront on thelr integnty as human beings, mounting fo an invasion of “Une sphere af intellect nid spirit" And compulsion to make them do unvilingly what they did not conscientiously believed in as an article of tei fait is a technique that has always been 1othe canecenour Objet 21 Clunbls Uns oon 20 "BRIE. at 68, up owe po te ale snes as an spelen then annoy ge pecs952 {oa Panosomir considered constitutionally suspect. ‘Where then ean the explanation be found that the CGobkis decision was a mistake. Perhaps in the metz legal stimulus that simply moved the members of the Court to arrive at such a decision. ‘That this seems to bbe the case may be gleaned from the reference made by Justice Felix Frankfurter, who wrote the majority view, tothe “lime of emergency” that envelope the frst ‘ase from beginning to end and from the marked hest- {ancy and uncertainty of the Court in stating that re Ligious freedom may be sacrieed atthe altar ofnatonal security and unity ‘The “time of emergency” referred to was the crisis, {in which the free world found self during the middle of 1940. About two weeks belore Apri 25, 1940, when ‘he ease was argued belore the Supreme Court, the mighty Geman armies had completed thelr bitalrieg land occupation of Denmark and had began the invasion, fof Norway by mneans of sea and alt-bome divisions. Hardly 2 week aller April 25, the Germans broke Norweglan resistance driving King Haakon VII and his ‘goverment to London, TWo weeks alter the oral ar [Bumenis in court, that on May 10, the victorious German armies began the invasion of Belgum, the Netherlands, and Luxemburg, drvingwest othe English Channel at Abbeville, eutting of the British and Belgan. ‘armies in the North from the bull of the French armies {nthe South, And on May 26, only a week belore June 8, the date when the decision was promulgated. the Belgian armies discouraged, disargarized and without supplies, were ordered by King Leopold Ml to cease Aghling. resulting in te fall of France to te enemy after close to halla milion soldiers of the British and French ‘armies, hopelessly exposed in the North by the capita I Leon. Reaver Pensrecrnv 1 383 lationoftne Belgians, withdrewto the beaches of Dunikirk on May28, fora desperate evacuation across thechaninel to Bngland, which continued for five days, ending on ‘June 3, the very day the decision of the Supreme Court ‘was promulgated ‘The Gobitis claim to religous freedom and its exercise simply colided with the interest of a nation already deeply involved in the Second World War. ‘The ‘American way of life itself was at stake in the outcome ‘of such “ume of emergency.” The slakes were indeed bigh. The“Lime and circumstances” were precarious for the Allied cause and one ean see it reected right in the first paragraph of the decision prepared by Justice Frarisfurer. Thal the times of emergency” played afar eater metalegal role dian is admitted in the decision {s supported by Justice Frankfurter’ letter, dated May 27, 1940, to Justice Stone, the lone dissenter, the day ‘after the news ofthe debacle of the Belglan armies and ‘2 week before the release ofthe decision om dune 3. In ‘hat letter. Justice Franklurter ied to justify the positon taken by the majority. He said: it seems to me that we do not trench on an undebatable territory of libertarian immunity to penmit the senool authorities a Judgment as to the effect of this exemption in the ‘particular Setung of our tine and cécursiances. "108 ‘The maforty decision came as a shock and was ‘widely and sharply erticized. Soon the members of the ‘Supreme Court who had partiipated inthe case began tohave misgivings. Thus when Jones. Opelicareached the Supreme Court, Justices Black, Douglas. and Te pas supple The ll ex of the teri tn Maa, ‘x, Sse to Fcson, 21720, Coed Une Pes354 eons Paosore ‘Murphy dissented stating that they had become con vineed that the Gobitis case “was wrongly decided" ‘Together with Justice Stone, there were now four ‘members of the S-mman Court who no longer supported the Gobitis decision, a precarious balance in favor of Justice Frankfurter. When Justice Wile B. Rutledge Teplaced Justice James F. Brynes after the laters retirement, Justice Frankfurter lost his edge beeause ‘ustice Rutledge joined the four dissenters. Now form ing the majority they overruled the Gobits case in the second flag salute case of West Virginia State Board of [Education Bametie.!0” This time Justice Frankfurter ‘was on the dissenting side. The majority held that an ltempt to restriet religious liberty, thats fo say freedom, of worship can be Justied only by showing that there fs aclear, not doubtul, and present, not remote. danger to te state which the slate may lawfully protect. Once ‘the danger to the slate was over and the exigencies of national unity and security seemed less exigent, even fsssuming that the Jehovah's Witnesses had an ob: {Jectvely wrong cansclence on the sigicance of taking ‘lag Salute, the Court reasoned that the “clear and present danger” rule is just a8 applicable where the government compels alimance of a belief as where it Seeks to suppress one. In overtuming the Gobits eeision, the new majority concluded: Lastly, and this is the very heart of the Gobitis opinion t reasons that national unity is the basls of national security that the au thorities have the right to select appropriate ‘means for its attainment and bence reaches ‘the conclusion that such compulsory measures towards ‘national unity’ are constitutional, 18.624, 87 LEA, 1698, 69 SL 1178 Leone Ressst Pensrecine ‘Upon the versty of this assumption depends our answer in this case ‘National unuty as an end... . is not in question. ‘The problem is whether under our Constitution compulsion as here employed is 2 permissible means of iis achievement, Struggles to coerce uniformity of sent- ‘ment n support ofsome end thought essential to their ume and country have been waged by ‘many good as well as by evil men, Nationalism {sa relatively recent phenomenon but at ot fumes and places the ends [varie Fi Probably no deeper division of our people could proceed romany provocation than from iding necessary to choose what doctrineand winase programs public educational officials shall compel youth to unite in embracing, Ukimate fatty of such attempts to compel coherence ‘isthe lesson of every such elort.... Those ‘who begin coercive elimination of dissent soon find themselves. exterminating dissenters Compulsory unification of opinions achieves only the unanimity of the graveyard The cases mate dif not because tne Drindples ofits decision are obscure but be Eause the Mag snolved i our own, Neverthe Jess, we apply telimlations of tneconstution ‘wth no fear tat feedor to be intellectually ind oplntually verse er even contrary Wl disintegrate the socal organization, To bebeve that petsotism wil nat foursh if patroue ceremonies are voluntary and spontaneous instead ofa compulsory routine so maken lunllattering estimate of the appeal of ou” dnstlulions to free minds, We cat have inte