Jurisprudence class. Credits to the lecturer.

1. Theories of Adjudication
(Teori Pertimbangan Kehakiman )
Examining how judges decide cases.

2. Two Approaches
Descriptive Dimension
Look at how judges actually
decide cases – the American
legal realist
NormativeDimension
Focus on how judges ought to
decide cases.

3. American Realists
Oliver Wendell Holmes
Take the fundamental question, What constitutes law? You may find some text writers telling you
that it is something different from what is decided by the courts in Massachusetts or England, that it
is a system of reason, that it is a deduction from principles of ethics or axioms or what not, which may
or may not coincide with the decisions. But if we take the view of our friend, the bad man, we shall
find that he does not care two straws for the axioms or deductions, but that he does want to know
what Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophesies
of whatthecourtswilldoinfact,andnothingmorepretentious,arewhatI meanbythelaw.
(Thepathof law)

4. bad man
 a bad person's view of the law represents the best test of
what exactly the law is because that person shall carefully
and precisely calculate what the rules allow and operate up
to the rules' limits.

5. Characteristics
 Realist is impatientabout theories, concerns with law ‘as it is’, and
preoccupied with the actual operationof law in its social context. They
employ numerous scientificenquiry, suchas sociology and psychology.
 Judges are not only influencedby legal rules,
 Realist is behaviour oriented

6. Holmes (1841-1935)
 The commonlaw is not a brooding omnipresencein the sky, but the
articulatevoice of some sovereignor quasi sovereign that can be
identified…
 Thrust of his thought:
1. Define law as what the courts actually said it was;
2. Introduces ‘bad man’ to enable himto make prediction;
3. Legal development can be scientifically justified.

7. Rule sceptics – scepticisms of the role of legal rules
 The life of law has not been logic, it has been experience. The felt necessities of the
time, the prevalent moral and political theories, intuitions of public policy,
avowed or unconscious, even the prejudices which judges share with their fellow
men, have had a good deal more to do than the syllogism in determining the
rules by which men should be governed.

8. Logic and judicial process - its relationship
 Thetrainingof lawyersisa trainingof logic…Thelanguageof lawismainlythelanguageof logic.
Andthelogicalmethodandform flatterthatlongingforcertaintyandforreposewhichis inevery
humanmind.Butcertaintygenerallyisan illusion, andrepose*is notthedestinyof man. Behind
thelogicalformsliesa judgmentasto the relativeworthandimportanceof competinglegislative
grounds,oftenan inarticulate**andunconsciouslyjudgmentit istrue,andyettheveryroot and
nerveof thewholeproceeding.Youcangiveanyconclusiona logicalform.
 *rest/relaxation
 ** incoherent

9. Karl Llewellyn
 Lawas an engine , ‘havingpurposes, not valuesin itself.’
 Six lawjobs:
1. Adjustmentsof trouble cases;
2. Preventive channellingof conduct and expectations;
3. Preventive rechannelling of conduct andexpectations to adjust to change;
4. Allocation of authorityanddeterminationof procedures for authoritative
decision-making;
5. Provision of direction and incentivewithin the group;
6. ‘Thejob of the juristic method’.

10. Jerome Frank (1889-1957)
 Fact sceptics:try to identify the competing forces that silently affect the
discoveryand interpretationof the facts of the case.
 Judges are human, thus they are subject to man intuitions and
feelings;
 Thus judges prejudices often crucially affect the outcome of a case.

11. Purpose of law jobs
 To prevent the society from disintegrating. The essence is ‘problem
avoidance’ and ‘dispute resolution’. Man developed their skills to
discharge this duty.
 ‘law crafts’ – advocacy, advising clients, judging, legislating and
administering, policing, teaching and scholarship.

12. Style of judging
 Formal style
 Grand style
What is a style
...refers in this connection not to literary* quality or tone but to the
manner of doing the job, to the way of craftsmanship in office, to a
functioning harmonization of vision with tradition, of continuity with
growth, of machinery with purpose, of measure with need.
*fictional

13. Formal style
The rules of law are to decide cases; policy is for the legislature, not for the
courts, and so is change even in pure common law. Opinions run in
deductive form with an air or expression of single inevitability. ‘Principle’ is
a generalization producing order which can and should be used to prune
away those ‘anomalous’ cases or rues* which do not fit, such cases or rules
having no function except, in places where the supposed ‘principle’ does
not work well, to accomplish sense – but sense no official concern or a
formal-stylecourt.
*regret

14. Grand style- a way of ongoing renovation of doctrine
Alwaystested‘againstthreetypesof reasons’
The reputation of the opinion writing judge counts heavily (and it is right reason to listen carefully
to the wise). Secondly, “principle” is consulted to check up on precedent, and …in this way of work
‘principle’ means no mere verbal too; for bringing large-scale order into the rules, it means a broad
generalization which must yield patent sense as well as order, if it is to be ‘principle’. Finally, ‘policy’
in terms of prospective consequences of the rule under consideration, comes in for explicit
examination by reason in a further test of both the rule in question and its application…The better
and best law is to be built on an out of what the past can offer; the quest consists in a constant re-
examinationandreworkingof a heritage.
Continuity andrenewalof lawis important.

15. Contributions
 Leadto the developmentto Sociological jurisprudence and Critical
Legal Studies
 Twinning
The mainachievement of the realist movement was to concretise
sociological jurisprudence … Perhaps the most importantlesson to be
learned froma studyof realismis a partial answer to the question:
What difference can it make in practice to adopt a sociological (or
realist or contextual) approachto law)

16. Judges in the Civil law tradition
 In French prior to French Revolution, judicial officers is a property,
could be buy, sell and inherited.
 Strict separation of judicial power and other forms of power and
functions; Montesquieu – Spirit of the Law.
 To prevent abuses of judicial power, when the judge refuses to apply
the laws, interpreted them contrary to the legislative intent and
obstruct the implementation of the law.

17. Judges in the Common law tradition
 Judges assists in shaping the development of the law, especially common law.
 The fear of judicial lawmaking is not serious.
 Appointment by executive, not inherited.
 Coherency and certainty of law in Common law is preserved by the doctrine of
precedent.
 The Civil law tradition, achieved this by restricting judges power in interpreting
the law. The judge supposedly is to apply the law only.
 On the contrary, the fact shows that – legislature however hard they tried to
provide a clear, systematic legislative response to the every problem that may
arise, falls far short from this objectives.

18. Cardozo on Judicial process
 Remind judges on the intricacy* of judicial process,
especially when statute does not provide the answer.
 Judicial law making power can only be exercised when
legislation fails to provide an answer, thus ‘a judge legislates
only between gaps’ but not to the extent of replacing the law.
 *complexity

19. Have to distinguish
 “right and power, between the command embodied in a judgment
and the jural principle to which the obedience of the judge is due.
Judges have, of course, the power though not the right, to ignore the
mandate of a statute, and render judgment in despite of it. They have
the power, though not the right to travel beyond interstices*, the
bounds set to judicial innovation by precedent and custom.”
 *Small intervening space

20. Four directive forces
a) Rule of analogy (method of philosophy);
b) Method of evaluation/history;
c) Method of tradition;
d) Method of sociology.
No one method supersedes the other.
No one court decision is the same!

21. Judges as lawmakers
 Discretionary power
 Hart “open texture of law” – while legal language affords clarity and
precision …, there is invariably some ‘uncertainty at the borderline’,
e.g. the word ‘vehicle’
 ‘penumbra’ – ‘cases in which words are neither obviously applicable
nor obviously ruled out.’
 No correct answer thus a judge has to exercise his discretion.

22. Dworkin ‘hard cases’
A situation where legal rules run out;
i. The legal rules are vague and it is not clear what result they
require (Hart’s penumbra);
ii. No applicable rules exist.
A judge has to find the right answer. ‘right answer thesis’ .

23. Is a judge a law-maker or law pronouncer?
 A judge cannot stay away from from making a law.
 “NO JUDGE IS A PARLIAMENT” former Chief Judge Tun
Abdul Hamid Mohamad
https://tunabdulhamid.me/2018/03/no-judge-is-a-parliament/
 NOT FOR JUDGES TO REWRITE THE CONSTITUTION
https://tunabdulhamid.me/2017/06/it-is-not-for-judges-to-rewrite-the-constitution/

24. What law-making process is
 A controlled process regulated by precedent, seeking for
predictability and coherency.

25. Judicial activism
Positive Negative
A court engages in
altering the power
relations to make
them[those in
power] more
A court uses its
ingenuity to maintain
the status quo in
power relations.

26. Cardozo
 A jurist is not to innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield to
spasmodic sentiment, to vague and unregulated benevolence. He is to
exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to the primordial necessity
of prefer in the social life.

27. Principles in exercising activist stance
a. Endevour to preserve integrity;
b. Grant a close and necessary regard for the rules of procedures;
c. Place consideration on equal treatment before the law;
d. Show deference to legislative enactments;
e. Give judicial recognition of the realities of the cultural, ideological, and
institutional setting the judges share with, their fellow cirizens, not excluding
the political realties;
f. Have regard for stare decisis or adherence to precedent.

28. Spelunceon explorers
 Description of judges attitude.