UGANDA CHRISTIAN UNIVERSITY, MUKONO

FACULTY OF LAW

REG NO:

YEAR: TWO

COURSE UNIT: JURISPRUDENCE 1

LECTURER: BAKO PATRICIA

TUTOR: AGWANG JULIET SUSAN

QUESTION:

American Legal Realism was the most innate jurisprudential movement during the twentieth
century from 1920 to 1940 which saw the rejection of the formalization that was to the effect that
judges decide cases on the basis of legal rules and reason. The philosophical roots of the
movement were first in the teachings of American writers, William James and John Dewey who
expounded on the theory of pragmatism to the extent that for Law to be real, it had to have a
more practical effect which they termed as ‘law being in action’. 1 This movement owes its
strength to Oliver Wendell Holmes but cannot be fully attributed to him because it was not until
he had reached in the evening hours of his profession that this movement became famous 2.The
other leading jurists are Karl N Llewellyn, Jerome Frank, John Chipman Gray and Benjamin
Cardozo J who emphasized the major elements of law to be the actual practice of the courts and
decisions of judges3.

The major tenets of the American Legal Realism have since been adopted by Courts of Law in
Uganda today and it is with this essay that I intend to highlight the areas to this effect;

The major tenet which was also known as the “core claim” among all American realists is that
Law is judge made.4 They argued that the law would be found in the decisions of judges as
opposed to them being in certain rules that may guide judges to reach a decision. Holmes terms
Law as the prophecies of what the courts will do and nothing more pretentious.5 This therefore
implies that the realists focused on the judicial process and what it makes of the formal rules of
law and concluded that law was not a mere study of the legal rules but that of the rule maker, in
which case they considered the law maker to be a judge. In Uganda, save for the fact that the
parliament is seen as the law making body as provided for under Article 79 of the
Constitution6, that law is not law until Courts of Law have pronounced themselves on it. This
was seen in the case of Attorney General v Salvatori Abuki7 where Court declared Section 7
of the Witchcraft Act Cap 124 null and void to the extent that it denied one a right to life to
which case it was expanded to livelihood and also one was denied a right of personal liberty.
This provision subjected the petitioner to ten years of banishment from his home in addition to
the twenty two months that he had served in Prison. It is because of this judgment that the
1
L.B Curzon, Jurisprudence-Lecture notes (2nd edn Cavendish Publishing Limited 1998) 218.
2
Lloyd’s Introduction to Jurisprudence, (8th edn London: sweet & Maxwell 2008) 1053- courtesy of “The Path of the
Law” by O.W.Holmes after his 30 years’ service as a justice in the US Supreme Court.
3
Austin Chinhengo, Essential Jurisprudence (3rd edn Cavendish Publishing Limited 2002) 14.
4
Omony.J.Paul, Key Issues in Jurisprudence- An in-depth Discourse on Jurisprudence Problems (1st edn Law Africa
Limited 2006) 72.
5
O.W.Holmes,The Path of the Law 10 Harvard Law Review 457(1897) 1
6
The Constitution of the Republic of Uganda 1995; as amended.
7
Attorney General v Salvatori Abuki( Constitutional Case No. 2 of 1997).
Witchcraft Act has since been repelled and depicts judges as law makers because their stand is
the one that has since been adopted.

With regard to what Holmes portrays as Law to mean that which the courts do, I find it very
unrealistic because this would mean that Courts would ‘freely ignore the law’ putting into
consideration of what they individually consider to be law. This too would be in contradiction
with Section 126(1) of the Constitution of Uganda 8 which is to the effect that Courts shall
exercise their judicial power derived from the people in conformity with the law. The Supreme
Law of Uganda being the Constitution 9 which is a true reflection of the decisions of the people,
the courts reaching a decision without regard to the same would be a total denial of the justice
the Judiciary is basically meant to serve.

Benjamin Cardozo also lays down another major tenet while he stresses that because society is in
a continuous process of change and is often ‘ahead of the law’ in its attitudes, continuous
reexamination and revision of the law is essential. While demystifying this, he calls for the
judges to strike a balance in adherence to precedent in order to ensure that the judicial process is
seen as representing the need for stability, change, modify and reject the interests of the growth
of the law10. The rule of precedent finds its roots in stare decisis which means to stand by
decided cases. The exception to strict adherence of precedent comes in when the rules of law in a
remote generation have grown up and unsatisfactorily serve the next generation. In our Ugandan
jurisdiction, this is seen to have been greatly adopted rating from the provision in the
Constitution under Article 132(4) 11 which recognizes the doctrine of precedent but also gives the
court the mandate to depart from its previous decision when it appears right to do so. This has
also been elaborated through the cases which portray almost similar relevant facts but in which
different judgments have been given. While presiding over the case in Mifumi (U) Ltd & 12
others v Attorney General12, Kavuma JA contrasted the instant case and that of Alai v Uganda
with that of R v Amkeyo13 while giving regard to what was understood by bride price in Uganda.
He went ahead to explain that to adopt the decision in R v Amkeyo where ‘bride price’ was
declared as mere ‘bride purchase’ and had been phrased so for lack of a better word according to
8
Supra n(17).
9
Article 2 of the Constitution of the Republic of Uganda 1995; as amended.
10
Supra (n4).
11
Article 132(4) of the Constitution of the Republic of Uganda 1995; as amended.
12
Mifumi (U) Ltd & 12 others v Attorney General (Constitutional Petition No. 12 of 2007).
13
R v Amkeyo (1917) 7 EALR 14.
Hamilton CJ would be a judicial retrogression because court would have allowed a ghost to rule
over the people from the eternal resting place of the dead. The reason behind the judge’s
statement was because Udo Udoma CJ in Alai v Uganda14 had already taken a different stand
ranging from the fact that Uganda had since attained its own independence and the courts of Law
were presided over by people who had a better grasp of the African tradition and observance of
customs as opposed to the former case.

The American realists also stressed the necessity of judicial alertness to social realities. This
was majorly expounded on by Cardozo for fear that if every judge considered their own
individual convictions to reach to a decision in a case, the society would be chaotic and would
cause instability. While using this sociological idea, he uses three approaches to enable judges
get to this; method of philosophy which allows judges to use aspects of reasoning based on
analogy, method of evolution that allows judges to recognize the importance of the process of
development in the work in which the judge takes part and the method of tradition which
enables judges to draw from the ideas of justice, morality and social welfare in the process of
reaching a judicial decision15. In Uganda, this was ably discussed in the case of Bruno Kiwuwa
v Juliet Namazzi and Ivan Serunkuma 16 where the applicant asked the court to nullify the
marriage because it was contrary to the culture of the Baganda which forbade the marriage of
two people who belonged to the same tribe and clan and in this case, the two parties who sought
to undergo the church marriage all belonged to the Ndiga clan. In his judgment, Justice Kasule
rendered the Church marriage illegal, null and void while taking into consideration of the
Kiganda culture. This therefore upholds the fact that a judge while promoting social ends may be
tempted to substitute his view for that of the community17.

However, in as much as regard should be made to customs, traditional concepts and legal rules
cannot provide a full description of what the courts do. This has been observed by the courts in
Uganda while hearing the case of Best Kemigisha v Mable Komuntale and another 18 where it
was held that despite the fact that the custom among the Toro culture recognized the denial of a
widow to take over administration of an estate, this could not stand for the courts to make their
14
Alai v Uganda (1967) E.A 596.
15
Omony. J. Paul, Key Issues in Jurisprudence- An in-depth Discourse on Jurisprudence Problems (1 st edn Law Africa
Limited) 74.
16
Bruno Kiwuwa v Juliet Namazzi and Ivan Serunkuma High Court Civil Suit No 52 of 2006
17
Cardozo B. The Nature of the judicial Process. New Haven. Yale University Press 1921 p.136-137,170.
18
Best Kemigisha v Mable Komuntale & Another (HCCS No. 5/1998).
judgment if the custom was discriminative and therefore inconsistent with Articles 21 and 31(1)
of the constitution.19In regards to the legal rules, the Succession Act which had been introduced
to cure some of the discriminatory aspects exhibited by the constitution was equally found to
possess elements of discrimination and these were later challenged before courts of law in the
case of Law and Advocacy of women Uganda v Attorney General 20where sections 2(i) (ii),
14, 15, 23, 26, 29,43 and 44 of the succession Act21 were declared invalid and null since they
infringed fundamental human rights of a woman and in violation of the constitutional provisions.

The persuasion and characteristics of individual judges was another tenet which most
eminent realists advocated for. This was majorly propounded on by Jerome Frank in his “Law
and the Modern Mind.” His view was like that of all the radical legal realists among which were
Radin22 and Joseph Hutcheson who were all preoccupied with “fact finding realism”- whereby a
judge would usually only accept evidence which would be in support of his or her preferred
outcome.23 Jerome Frank went ahead to explain that the decision given by judges would in most
cases be attributed to the judge’s personality, beliefs, political preferences and mood other than
giving regard to legal rules and in so doing, he, like most of the radical legal realists doubted the
judge’s ability to make decisions rationally on the basis of general rules. This principle did not
however give total disregard to the legal rules because after the judge reached his or her decision,
they would be returned to access the acceptability of the judgment. In Julius Rwabinumi v
Hope Bahimbisomwe,24 it can be determined that the decision of Hon. Justice A Twinomujuni,
JA while faced with facts to determine what amounted to marital property and therefore
determine what method to follow in distribution at the dissolution of the marriage was greatly
affected by his belief in Christianity. He held that whatever property that is owned by a couple
automatically becomes marital property after marriage and should therefore be shared equally
among the partners at dissolution.25.Upon his decision also, he tries to bring into play, Article 31

19
The Constitution of the Republic of Uganda 1995; as amended.
20
Law and Advocacy of Women Uganda v Attorney General (Constitutional Petition no 8 of 2007)
21
The Succession Act 1906 (Cap 162).
22
Radin M. Legal Realism. Columbia Law Review. 1931, 31-824 (Radin noted that judges mostly classify events
depending on their conscious and unconscious interests or even circumstances surrounding a particular case).
23
Vitalius Tumonis. Legal realism & judicial decision-making( Mykolo Romerio University, 2012)
24
Julius Rwabinumi v Hope Bahimbisomwe(Civil Appeal No. 30 of 2007).
25
The justice bases his decision on Genesis 2:21-25 in conformity with the marriage vows “……..that is why a man
leaves his father and mother and is united with his wife and they become one…….that which God has put together,
let no person divide”).
of the Constitution26and the Marriage Act, Cap 251 to show that Genesis 2:24 is clearly put
into reality. Without doubt therefore, it clearly elaborates that in addition to attributing the
decision taken by the Judge to his Christianity belief, the case also shows that he brings in the
legal rules to use as support for his already reached judgment.

In conclusion therefore, save for the a few criticism to the American legal realism, this school of
thought has continued to prevail in Uganda today through the observance of its major tenets by
Courts of Law while taking their decisions in a vast of cases brought before them. To be specific;
is the major tenet which is a great reflection of judge made law and advocates for the fact that the
law is deemed to be valid upon being subject to judicial examination. This is evident in the
adjudication process in Uganda as the Courts pursuant to Article 137 of the Constitution
through interpretation of law happen to make law through rendering certain provisions null and
void irrespective of the fact that Parliament is the sole law making body, the power rendered to it
under Article 79 of the Constitution.

LAWS

The Constitution of the Republic of Uganda 1995; as amended.

STATUTES

The Marriage Act, Cap 251

The Succession Act 1906 (Cap 162).

The Witchcraft Act, Cap 124

TABLE OF CASES

26
Supra (n17).
Alai v Uganda (1967) E.A 596.
Attorney General v Salvatori Abuki( Constitutional Case No. 2 of 1997).

Best Kemigisha v Mable Komuntale & Another (HCCS No. 5/1998).

Bruno Kiwuwa v Juliet Namazzi and Ivan Serunkuma High Court Civil Suit No 52 of 2006

Julius Rwabinumi v Hope Bahimbisomwe(Civil Appeal No. 30 of 2007).

Mifumi (U) Ltd & 12 others v Attorney General (Constitutional Petition No. 12 of 2007).
R v Amkeyo (1917) 7 EALR 14.
TEXTBOOKS
Austin Chinhengo, Essential Jurisprudence (3rd edn Cavendish Publishing Limited 2002)
L.B Curzon, Jurisprudence-Lecture notes (2nd edn Cavendish Publishing Limited 1998)
Lloyd’s Introduction to Jurisprudence, (8th edn London: sweet & Maxwell 2008)
O.W.Holmes. The Path of the Law 10 Harvard Law Review 457(1897) 1
Omony.J.Paul, Key Issues in Jurisprudence- An in-depth Discourse on Jurisprudence Problems
(1st edn Law Africa Limited 2006)
ARTICLES
Radin M. Legal Realism. Columbia Law Review. 1931, 31-824
Vitalius Tumonis. Legal realism & judicial decision-making (Mykolo Romerio University, 2012)