Factors which influence Judges in Judicial Process in Tanzania

Introduction to American Realism:

American realist jurists  (or simply, American legal realism as opposed to Scandinavian legal realism) may be referred to as a jurisprudential movement among American legal thinkers in 20th Century which place Judges (or Courts of law) in a centre of law and policy making process . Realist movement is part of sociological approach and it is sometimes called ‘left wing of the functional school’. It concentrates on a scientific observation of law in its making and working. It is called ‘realists’ as it studies law in its actual working and decisions given by Judges and human factors in judges and lawyers.

Essentially, the American realist legal movement criticised ‘mechanical jurisprudence’ (formalism or traditional legal theory) which placed legal rules (statutory laws and precedent or stare decisis) above judges in bringing unique results in different cases . To formalists, law as expressed in statutes and precedents determines the outcomes of particular cases. Conversely, realists do no deny the law, they only deny the binding nature of the statutes.

Realist jurists look at the law in socio-political perspective. Thus, sees Judicial decisions in a better position to bring about the desired changes in a legal community rather than Acts of Parliament or precedents which tend to be faulty and inconsistent to some commonly held human principles and social mores. Realists embrace the thesis that in deciding cases, judges react primarily to the underlying facts of the case, rather than to applicable legal rules and reasons.

American realist jurists like other jurisprudential schools of thought differs in the way they approach the field of law. According to Ingersoll, there are two main realists’ camps, namely ‘rule sceptics’ (right-wing or moderate realists) led by Professor Karl Llewellyn and ‘facts sceptics’ (left-wing or radical realists) led by Justice Frank Jerome. Proponents of rule sceptics regard legal uncertainty as arising from statutes and precedents thus, seek to discover uniformity in actual judicial behaviour. To them, there is a likelihood of predicting the end results of the case. Whilst, lawyers under facts sceptics link unpredictability of Court’s decisions to elusiveness of facts due to human factors such as biasness, insincerity, and et cetera. To them, it is impossible to predict court’s decisions because facts and circumstances of cases do differ. However, regardless of the said differences, the two camps of the American realists concede to the large extent as both believe in an indeterminacy or uncertainty of the law and oppose formalism. Modern realists such as Beutel have refined Frank and Llewellyn’s approaches to include empiricism and technology (mechanics and cybernetic) to find uniformity in judicial decisions. These approaches have created new subdivisions within American realism’s major wings i.e. Jurimetrics and Judicial Behavioralism.

Incontrovertibly and in the light of the American realism school of thought, I would subscribe to [the] views aired by Fredric Reynolds that the process by which judges arrives at their decisions on the question of law is a topic of endless fascination and analysis. This is because, the adjudication process involves, interpretation of laws and legal doctrines, exercise of judicial discretion, application of human knowledge, logic and experience, balancing between the law and personal conviction (inclination, emotions), comparing sophisticated precedents, relating the law and social realities. Above all, Judges (or Courts of law) are required to consider the political implications of legal rules and decisions, ultimately to give reasons for their stance.

Law and Judicial decisions in the light of American Legal Realism:

The American legal realists view the law as what Judges pronounce in variety of cases (i.e. law is what judges decide). To them, the law is indeterminate, in a sense that statutory laws or precedents do not determine the results of legal disputes (i.e. uncertainty of the law and precedents). Wilkins summarises realists’ ideas on the indeterminacy of the law and precedents as follows;

The legal realists and their followers marshal three arguments to support the claim that law is largely indeterminate. First, they argue, there are in most cases a number of sources from which a "legal" answer might be derived. Second, legal doctrines contain vague or ambiguous language susceptible to multiple, inconsistent interpretations. Finally, they argue that by shifting the focus of analysis between the general and the particular, it is often possible to alter the perception of the proper application of the law to the facts.

It is in the sense of indeterminacy of the law therefore, the adjudicative process becomes an endless fascinating area as follows;

One, Canons of statutory interpretation allows Judges to opt for the meaning which concurs with their preconceived ideas on the matter at hand. For instance, in the case of Abualy Alibhai Azizi v. Bhatia Brothers Ltd the Court stretched the law to help the parties. In this case, the Court of Appeal was required to adopt its previous interpretation of the phrase, ‘shall not be operative’ in either Nitin Coffee Estates Ltd & Others v. United Engineering Works Ltd & Another or George Shambwe v. National Printing Co. Ltd.

Two, since precedents can be read strictly or loosely by a Judge, more than one rule can be extracted from the same precedent to justify the position taken by the Court in a particular case. For example, the Court of Appeal in the case of Bi Hawa Mohamed v. Ally Sefu interpreted loosely and thus extended the meaning of the phrase, ‘joint efforts’ to include the domestic ‘efforts' or ‘work’ of husband and wife. On this point Llewellyn argue that,

But if… each precedent has not one value (that is, stands for not just one rule), but two, and the two are wide apart, and whichever value a later Court assigns to it, such assignment will be respectable, traditionally sound, dogmatically correct .

Third, Judges instead of adhering to the common law doctrine of stare decisis may distinguish the two cases and thus lay a new rule which suits his conviction. This was the position in Dodhia v. National & Grindlays Bank Ltd and another. In this case, it was held that the Court of Appeal, while it would normally regard a previous decision of its own binding, should feel free in both civil and criminal cases to depart from such decisions when it appears right to do so. The same principles apply when the decision is a decision of the Privy Council on appeal from East Africa. Chancellor Kent (American Judge, as he then was) admits that, ‘I always found principles suited to my view of the case’.

Fourth, in deciding cases, Judges respond primarily to the stimulus of facts of the case, rather than to legal rules and reasons. To realists, decisions of the Judges are brought about by ascertainable facts i.e. empirical, personalities of judges, social environment, economic conditions in which they have been brought up, business interests, trends and movements of thought, emotions, psychology and etc.

Fifth, Judges are always prepared to make decisions even where there is a lacuna in the law. For example in Rylands v. Fletcher, the rule of strict liability (liability without fault) was established as a principle of law judicially without a statutory source. Likewise, in the case of Shaw v. DPP, the Court convicted the respondent though his conduct was not primarily outlawed.

Sixth, Judges continually reshape legal rules to reflect changing social norms. For instance in several cases, Judges have declared Acts of the Parliaments as null and void under arguments of legality.

Therefore, one may say that a law is what a judge says it is, in a sense that the position of the law cannot be known before a decision of the Court is passed to interpret the law. In that regard, statutes, subsidiary legislation, amendments, precedents, international laws becomes mere guidebooks of a Judge’s mind in adjudicative process.

However, there is also a danger of relying too much on judicial discretion or Judges’ autonomy in creating and enforcing the law. As this may undermine the doctrine of rule of law, separation of power or lead to injustices due to corruption, political influences and uncertainty of the law or incompetence of individual Judges.

American Legal Realism and Factors which influence Judges in Judicial Process:

According to Justice Joseph Hutcheson avers that ‘the vital, motivating impulse for the decision is an intuitive sense of what is right or wrong for that cause ’. This view is also supported by Jerome Frank who asserts that ‘the personality of the judge is the pivotal factor in law administration’. Likewise, Justice Oliver Wendell Holmes states that ‘the life of the law has not been logic, it has been experience’, and Karl Llewellyn writes that ‘what these officials do about disputes is, to my mind, the law itself’. Therefore, legal realists view Judge’s decisions as influenced by idiosyncratic facts i.e. the psychology or personality of that individual Judge than the law itself. They further add socio-political and policy forces which operate upon Judges to respond to facts in similar or predictable ways.

This approach by realist jurists, justifies as to why some Judges are likely to uphold political or civil rights than the other. Or as to why Judges of the High Court in Tanzania seem to be judicial activists than their counterparties in the Court of Appeal. For example, in Tanzania, many civil rights petitioners in 1990s opted for the High Court in Dodoma registry where justices Mwalusanya and Lugakingirapresided over than in any other registry of the High Court.

Conclusion:

The Judge’s point of view on certain legal issue (s) may be influenced by a number of factors. To some judges, the will of those who are in power determines the outcome of the case, especially where the case at hand touches the interest of the ruling class. On contrary, other judges do not care who holds political powers or influence their appointment, thus, they exercise their duties according to the dictates of justice and the need of the people as well as the time in question. It is in this dimension therefore, some Judges have been labelled as ‘judicial activists’ (bold spirit Judges) for their stance of endorsing liberal ideas in interpreting constitutional and statutory provisions. On the other hand, some Judges are viewed as ‘timorous soul’ for being too conservative, statute-oriented and thus static.

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REFERENCES:

D'Amato, A. (1978) The Limits of Legal Realism. The Yale Law Journal, Vol. 87, No. 3 (Jan., 1978), pp. 468-513.

Decew, J.W. (1985) Realities about Legal Realism. Law and Philosophy, Vol. 4, No. 3 (Dec., 1985), Springer, pp. 405-422.

Cohen, J. (1950) Towards Realism in Legisprudence. The Yale Law Journal, Vol. 59, No. 5 (Apr., 1950), pp. 886-897.

Frank, J (1930) Law and the Modern Mind. New York, Brentano’s.

Frank, J. (1931) Are Judges Human? Part Two: As through a Class Darkly. University of Pennsylvania Law Review and American Law Register, Vol. 80, No. 2

(Dec., 1931), pp. 233-267

Hutcheson, J. (1929) The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision. In Cornell Law Quarterly, 14: 274-288.

Ingersoll, D.E. (1966) Karl Llewellyn, American Legal Realism, and Contemporary Legal Behavioralism. Ethics, Vol. 76, No. 4 (Jul., 1966), The University of Chicago Press,  pp. 253-266.

Keane, R. (2003) Judges as Lawmakers: The Irish Experience. Radharc, Vol. 4, Special Commemorative Issue: Ten Years of Glucksman Ireland House, Glucksman Ireland House, New York University, pp. 81-98

Kent, G. (1975) Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges. Columbia Law Review, Vol. 75, No. 2 (Mar., 1975), pp. 359-399.

Lawrence Baum (1994) What Judges Want: Judges' Goals and Judicial Behavior. Political Research Quarterly, Vol. 47, No. 3 (Sep., 1994), Sage Publications, Inc., pp. 749-768.

Leiter, B. (1996) Legal Realism. In A Companion to Philosophy of Law and Legal Theory, edited by D. Patterson, Oxford: Blackwell, 1996.

Leiter, B. (1999) Review: Positivism, Formalism, Realism. In Columbia Law Review,

Columbia Law Review Association, Inc.; Vol. 99, No. 4 (May, 1999), pp. 1138-1164

Leiter, B. (2002) American Legal Realism.  Public law & Legal Theory Research Paper No. 42. Also published in W. Edmundson & M. Golding (Eds), The Blackwell Guide to Philosophy of Law & Legal Theory (Oxford: Blackwell, 2003).

Linde, H.A. (1972) Judges, Critics, and the Realist Tradition. The Yale Law Journal, Vol. 82, No. 2 (Dec., 1972), pp. 227-256.

Llewellyn, K. (1931) Some Realism about Realism. In Harvard Law Review, vol. 44.

Llewellyn, K. (1930) The Bramble  Bush. New York: Oceana.

Lord Lloyd of Hampstead (1979) Introduction to Jurisprudence. London : Stevens.

Mahajan, V.D. (1987) Jurisprudence and Legal Theory, 5th Ed. Eastern Book Company, India.

Maina, C.P. (1989) Choosing sides: a polemical approach to three schools of jurisprudence. Hartung-Gorre, Auflage.

Mihyo, P.B. (1977) The Development of Legal Philosophy. Kenya Literature Bureau, Nairobi.

Miles, T.J. & Sunstein, C.R. (2008) The New Legal Realism. The University of Chicago Law Review, Vol. 75, No. 2 (Spring, 2008), pp. 831-851.

Oliver Wendell Holmes, Jr., Richard A. Posner, ed. (1923) The Common Law. Boston: Little, Brown and Company.

Richard A. Posner (1995) Judges' Writing Styles (And Do They Matter? The University of Chicago Law Review, Vol. 62, No. 4 (Autumn, 1995), pp. 1421-1449.

Sherwin, E. (2006) Judges as Rule makers. The University of Chicago Law Review, Vol. 73, No. 3 (Summer, 2006), pp. 919-931.

Wilkins, D.B (1990) Legal Realism for Lawyers. Harvard Law Review, Vol. 104, No. 2 (Dec., 1990), pp. 468-524.

William N. Eskridge, Jr. (1991) Overriding Supreme Court Statutory Interpretation Decisions. The Yale Law Journal, Vol. 101, No. 2 (Nov., 1991), pp. 331