Onyango while having his drink at Mashindano bar told the patrons that he hasjust discovered very late in life that “Law is not in statutes but it is what thejudge decides based on other considerations”.Discuss the concept of Law from the realist school of jurisprudence withspecial emphasis on:a) Justice Benjamin Cardoso (10 marks)b) Justice Jerome Frank with his pragmatic approach to law
Question
Onyango while having his drink at Mashindano bar told the patrons that he hasjust discovered very late in life that “Law is not in statutes but it is what thejudge decides based on other considerations”.Discuss the concept of Law from the realist school of jurisprudence withspecial emphasis on:a) Justice Benjamin Cardoso (10 marks)b) Justice Jerome Frank with his pragmatic approach to law
Solution
The Realist School of Jurisprudence is a legal philosophy that views law not as a fixed set of rules but as a tool used by judges to shape societal norms and behaviors. This school of thought emphasizes the role of the judiciary in interpreting and applying the law, often based on the judge's own experiences and personal beliefs.
a) Justice Benjamin Cardozo: Cardozo was a leading figure in the Realist School of Jurisprudence. He believed that the law should be flexible and adaptable to changing societal norms and circumstances. He argued that judges should not be bound by strict legal rules, but should instead use their discretion to achieve just outcomes. Cardozo's approach to law emphasized the importance of fairness and equity, and he often looked beyond the letter of the law to consider the broader social implications of his decisions.
b) Justice Jerome Frank: Frank was another influential figure in the Realist School of Jurisprudence. He took a pragmatic approach to law, arguing that legal decisions should be based on practical considerations rather than abstract principles. Frank believed that judges should take into account the real-world consequences of their decisions, and he often emphasized the importance of understanding the social and economic context in which legal disputes arise. Frank's approach to law was heavily influenced by his background in sociology and economics, and he often used these disciplines to inform his legal reasoning.
In conclusion, both Cardozo and Frank viewed law as a flexible tool that should be used to achieve just and equitable outcomes. They both emphasized the role of the judge in interpreting and applying the law, and they both believed that legal decisions should be informed by practical considerations and real-world consequences.
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