Tuto juris 4 - Tutorial work week 5 PDF

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Distinguish between fact skeptics and rule skeptics Jerome Frank is a fact skeptic: He focuses more on laws as compared to facts. He doesnt believe that facts are that significant and laws are more important. Holmes is a rule skeptic. They focus on facts. They feel facts are more important hence the...

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1. Distinguish between fact skeptics and rule skeptics - Jerome Frank is a fact skeptic: He focuses more on laws as compared to facts. He doesnt

believe that facts are that significant and laws are more important. - Holmes is a rule skeptic. They focus on facts. They feel facts are more important hence the focus is more on trial lowers courts because that is where facts are presented, they look at judicial behaviorilism. (maybe the judge took into account other things as well, not just the law).

2. Explain Holmes "Bad Man" theory.

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He said that Law is not like mathematics. Law is nothing but a prediction.

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According to him, the life of law is logic as well as experience. The real nature of the law cannot be explained by formal deductive logic.

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Judges make their decisions based on their own sense of what is right. In order to see what the law is in reality, he adopted the standpoint of a hypothetical ‘Bad man’ facing trial. Therefore his theory is known as Bad Man Theory.

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This theory says that a bad man successfully predicts the actual law than other people. Holmes said that law should be looked from bad man’s perspective. On the basis of this prediction Holmes defined the law as, “Prophecies (ability to predict) of what the court will do in fact and nothing more pretentious.

- In order to know what law is, one should view it through the eyes of a bad man, who does not care the method in which the court applies in reaching a decision, but who is only concerned with what will happen to him if he commits a certain wrong. issues of morality is not relevant to the bad man. The bad man is mainly concerned with a prediction on the outcome of a case

3. Explain what is jurimetrics. -

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It is a scientific means of solving legal problems and it helps in predicting the outcome of cases too. In Malaysia, we have Artificial Intelligence. AI would have all the decisions from previous cases of the same facts, the statistics and the probability count. It would be able to predict the outcome of a case. This has been applied in Sabah. Such as in Sections 90A, B, C of the Evidence Act. The use of computers, the use of CCTVand more are part of jurimetrics. see the use of such new evidence in the Canny Ong Case. changes to the multimedia laws and the fake news act to admit whatsapp msgs, circulation etc.all these involves computer encryption etc.. so yes we have used technology to admit evidence in court

4. State Karl Llewellyn's "law jobs" & explain their functions - “Law-jobs” are carried out through officials of the law. - “Law-jobs” are his way of describing the basic functions of the law, which enable the possibility of group survival, and the quest for justice, efficiency and a richer life - Their functions are: To resolve disputes between members of the community, to prevent or help avoid disruptive conflicts within the community, to accommodate changes in the circumstances of the community and its members - Law can also be used as a means of accomplishing social change, to recognise the authority structure of the community and to establish procedural rules for performing other tasks 5. What does Oliver Wendel Holmes mean by "extra legal/ illusive" factors? Elusive factors are factors that influence the law such as racial, religious, political or economic prejudices of the judge. extra legal factors may play a pivotal role especially factors such as race, socio-economic factors etc and as Anis points out it may have great influence on the judge or jury. but this is not made known anywhere in the judge's decision. but we can "imply" that this may be a possibility However, in some instances it may be in favour/advantage to the parties. For e.g do you think that in cases of native rights in Sabah and Sarawak, having a judge (appellate judge) sitting in a case involving customary native rights may be better? this could be because the judge himself may understand the historical, customary practices, the sensitivities of the parties better. thus he can give an outcome that suits the needs of the parties better? SO wouldnt the extra legal factors such as the judge himself being a native origin be a consideration to explore? will the extra legal factor that the female judge herself has experienced sexual discrimination and actively funds Women's Aid Orgnisation (for example only), be better for the parties? Yes so taking into account that SOMe extra legal factors may work FOR or AGAINST the parties, and the fact that it is a judge's duty to always act impartially and base their decisions on established law, You can see the limits of Holmes, Llewellyn and Gray's theories. The rule skeptics can be criticised in this manner. Ultimately judges still have to decide based on rules. Extra legal factors may be a CONSIDERATION or may have some bearing on the case, but it is not conclusive...