Feature Factors which influence Judges in Judicial Process in Tanzania

BY KAREEM MUSSA

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 criticized ‘mechanical jurisprudence’

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 behavior. 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 Behaviorism.

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 summarizes 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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