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Jurisprudential Aspects of Legal Theory Skepticism and Philosophical Skepticism: Comparison, Contrast, and Assessment


20 Jun 2022

Skepticism, Bad Man theory, Rule skepticism, Fact Skepticism

The research aims to comprehend the structuring of the most flourishing jurisprudential aspect that is Realism and the argument that advances on the questions raised doubting knowledge set forth claims in various area that is “Skepticism”. There are basically Two types of "scepticism" arguments emerged as central Legal-Realist theses. One argument came to be called "fact scepticism". this argument is an argument which doubt about whether and to what extent judges are judges constrained in the process of identifying the facts that are material to the resolution of disputes in substantive law. The second argument came to be called "rule scepticism". Roughly, this is an argument that which advances doubt about whether and to what extent judges are constrained by the legal rules when they decide disputed cases [1]. I will also throw some lights on judicial precedent and the precedent set up in American Realism and the famous Bad man theory [2] of Holmes.

Keywords – Skepticism, Bad Man theory, Rule scepticism, Fact Scepticism


Skepticism also known as scepticism, in the philosophy and Law is the attitude of doubting knowledge and claims set forth in various areas. Sceptics have always challenged the adequacy or reliability of these claims by asking what principles they are based upon or what they actually establish. Scepticism has been known in various degrees. Pyrrho [3] was the first philosopher who developed it to a high level. In literal terms, it is questioning over the non-evidentiary claims that are certain in society. In legal parlance,

It is the method of doubting toward the set claims and notions which implies certainty and also challenging the reliability or adequacy of these claims in comprehensive approach”.

Based on the approach that a statute can only become law only when the court interpret it , but some American realists states that legal uncertainty resides principally in book rules while some rules maintain that the exclusiveness of facts cause the uncertainty. On a same fact there can be two diverse judgements the judgement made by madras high court will differ to Kolkata high court and in many a case we have seen that (Right to privacy judgement).

So, no one can claim that the paper rules are the one which is sole responsible for certainty it is the facts its illusiveness as well as the rules which are necessary to check the certainty of the law. We all have been sceptic times or other, I remember when I got to know that square of H is equals to square of b and p. I questioned the certainty of the formula sceptic that time. Later, in legal context these challenging is termed as Legal theory sceptics.

American Legal Realism

Realism, Legal Realism and American legal realism has fine line of difference but they all are better verses of anti-thesis of Idealism. Jurists claims it to be combination of

Analytical positivism X Sociological approach = American legal Realism

Because the jurist claims it as “Law as it is” and sociological because it talks about the product of many factors. The Realist school of jurisprudence do not consider the legislature enacted law, for them judge made law is of sole importance. The psychological thinking of judges is also important rather also the experience is ought to be paramount.

It is law in action as well and the judgement delivered by the judges has contributing factors, experiences, human factors, ideology and judges lawyer understanding of fact. The school lefts two questions - The role of judge to frame law and Doctrine of precedent (In India Article 141). Many realist jurists were there who propounded the realism. They are Oliver Wendell Holmes, John Grey, Jeremy Frank, and Llewellyn.

They all have their own perspective of understanding of the American legal realism. Likewise, John Grey headed that the Political, Economic, Personal growth of the Judges affects the decisions. While Oliver Wendell Holmes, Bad-man theory is a jurisprudential doctrine or belief, according to which he stated that a bad person’s view of the law represents the best of what exactly the law is because that person shall carefully and precisely calculate what the rules allow and do things up to the rules’ limits. This theory is also known as prediction theory.

This theory was first adopted by Oliver Wendell Holmes who mentioned that a society’s legal system is defined by predicting how the law affects a person, as opposed to considering the ethics or morals underlying the law. under this theory, the prediction is done by viewing the law in accordance with a bad man’s point of view who is not bothered about morals. Such a person is unconcerned with acting morally. Instead, such a person would be thinking about the degree of punishments certain acts will incur by the public force of law. [4]

Jereome frank

Legal rule X case fact = Legal decision

And the case facts can be illusive that is there is no guarantee that judges will understand the fact “Law and modern mind” is the book by frank. He also stated “Certainty of law is a legal myth”. The jereome frank has elaborated that judges while delivering judgement do not follow precedent blindly. They look into the background of it and provides for Social conditions, Self-perspective and political ideologies.

However, there is a division of ideologies within the realism thinking of law concerning the root cause for the unpredictability of the law. Jeromy Frank [5] categorizes two types of causes for the uncertainty and the indeterminate nature of the law as Fact skepticism and Rule skepticism. Rule skeptics gives more attention to the uncertainties of the rules that makeup the law. Fact skepticts are concerned with the uncertainty of the facts. It is with these twin problematic reasons for the uncertainty and unpredictability of the law. The life of law has not been logic. It has been of experience Now we will look at the aspect of the legal theory scepticism.

Rule scepticism approach

Judge in a court trial is made up of two components - about the determination of the facts and about the determination of what rules should be applied to those facts. This is how one could scrutinize the approach taken in the ghouse v ghouse [6] in terms of rule skepticism. Rule skeptists believe paper rules are unreliable to predict and there are ‘real rules’ behind the ‘paper rules’ therefore it is hard to keep the certainty. This case implies how judges often rely on policy principles not found in law books instead of using only statutory legal rules. In this case the question of law has been emerged due to the impingement of two conflicting laws; general law and a special law. In terms of this case the truncation of the uncertainty has been found because of contradictory nature of two paper rules. In Ghouse v Ghouse [7] where there was the question of law which arises for decision on the undisputed fact.


‘whether a child which is adopted under the provisions of Adoption Ordinance by a Muslim Couple will be entitled to succeed to the intestate estate of his adoptive parents or not?

Fact of the case

In the case there was a inconsistency between the special law and general law Adoption of Children Ordinance No- 24 and the Muslim Intestate Succession Ordinance No. 10 of 1931.The Section 6(3) of the Adoption of children Ordinance declares that ;“upon an adoption order being made the child shall for all purposes whatsoever be deemed in law to be the child born in lawful wedlock of the adopter” and the child gets full entitlement to acquire any right, title or interest in any property and become entitled to any succession but the Muslim law does not recognize adoption and it postulates consanguinity to qualify oneself for intestate succession.

Chief Justice Sharvananda’s statement said that ; Adoption of Children Ordinance being a general law does not takes away the special law set out in the Muslim Intestate Succession Ordinance .However the maxim Generalia specialibus non derogant applied and the claim of an adopted child to succeed to the estate of his adoptive. The muslim law did not gives any such right so muslim parents failed. This illustrates that the uncertainty of the law created with the application of paper rules, which could be justified under the ideology of rule skepticism. The Chief Justice Sharvananda opined to get the aid of secondary rules of construction, focusing on the uncertainty and the complexities which might be occurred in the literal construction of two legal systems. The vagueness of paper rules intrinsically makes the opportunity for judges to interpret a law in diverse ways and to draw on interpretative rules to justify and to offer a valid basis for their judgment. This might consequent to understate the predictability of the decision since the idiosyncrasies of judges might strongly affect on the decision where the uncertainty exists in paper rules.

Generalia specialibus non derogant

Literally “the general does not detract from the specific.” This maxim suggests that courts prefer specific provisions over provisions of general application where the provisions are in conflict.

Greenshields v The Queen [8]

In the case of conflict between an earlier and a later statute, a repeal by implication is never to be favoured and is only affected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together…

Secondary Rules of Interpretation

The rules or maxims or concepts that come within this category of rules of interpretation are generally considered as

“Secondary” or “Subordinate” principles of interpretation the most important threat for court while interpreting statute in to find the “intention of the legislature, Maxims help to elaborate the meaning of individual words and phrases by drawing certain inferences.

The approach of Fact skepticism

Fact skeptics believe that; no matter how precise or definite may be the formal legal rules and no matter what the discoverable behind the formal rules it will be impossible because the elusiveness of the fact on which decisions turn ,to predict future decisions in most lawsuits not yet begun or yet tried. Fact skepticism fundamentally means that the rules are formal and certain, but facts are uncertain from case to case. The illusiveness of facts thus the various prejudices of judges and jurors often crucially affect the outcome of a case. Focusing on the fact skepticism ideology it is clear that the root cause of the Ghouse case is that the adoption has been done by 'Muslim parents' Therefore the issue which should be addressed is; whether being a Muslim is a matter of fact? However, it is an evident fact that this issue would not be emerged if the adoption had been done by non-Muslim parents. At this point it could be argued that the facts of the case too influence to create the uncertainty of the law. Frank acknowledges that the decision of any rule results from the application of legal rule or rules to the fact of the suit and the uncertainty occurs due to the diversity of facts of the case [9]

The District court held that the Respondent was the sole intestate heir of the deceased by virtue of the said adoption order. However, the court of appeal highly concerned that there is a question of law and ultimately decided Muslim law does not recognise adoption claim of an adopted child to succeed to the estate of his adoptive Muslim parent failed. District court’s opinion illustrates that the court have focused on finding and analysing the involving facts and their elusiveness rather than oscillating between the two legal rules. However, the court of appeal principally concerned the ambiguousness’ and the vagueness of two conflicting legal systems. Therefore, this shows that, for upper courts there would be nothing to concern with facts since, they have already found by minor courts.

Muslim law believes that adoption is inconsistent with the truth. The dissenting opinion of justice Wanasundara’s emphasis on that was Muslim law do not recognize the de jure adoption of children but there is nothing in the Muslim law which sets out that a Muslim family must be confined to devolve property on the blood relationship and if the adopter had donated or transferred upon an instrument or a deed that would be a valid transaction and questioned the justification of happening the same thing upon intestacy. On the other hand, adopting a child by Muslim parents, not transferring the properties to the adopted child through a deed or a last will could be identified as facts which has created complexity to apply the law. Facts skeptists would argue that it was the above facts of the case which made uncertainty to apply formal paper rules. Further; this illustrates that the decisions of the courts are buttressed by the predilections and attitudes of the judiciary depending on the facts of the case. According to Llwellen Traditional jurisprudence failed to investigate one of the most important aspects of America legal system; the certainty and the justice. [10]

Judicial precedent and the predictability of the Law

As well as one of the cardinal features of realism lies with judicial precedent. Realists’ focuses on the judicial precedent as a main source of law but the outcome might not always be consequent to accomplish the justice. Especially when it comes to secular matters like Ghouse case; the understanding of the fact skepticism can justify the uncertainty which occurs with matters concerning various cultural and secular issues. Realists never made explicit their philosophical presuppositions, about the nature of the law [11]. Hence it always shows a comparative, uncertain and unforeseeable image which epitomizes the indeterminacy nature of the law.

With regard to this case, even though there is a contribution of the facts of the case to create the uncertainty, the impingement of two legal systems have affected to create the innermost uncertainty and the complexity .Because the property rights of the adopted child was decided by means of secondary rule of construction as the criteria to select the paper rule which should be applied for the case. The case fundamentally exemplifies the ‘rule skepticism’ since the debatable matter of law was selecting a law from two conflicting legal systems.


In my ground of knowledge I think that What was far important was to arrive at a theory of Law, what was fortified by the faithfulness of empirical experience. Therefore, the realism is a pragmatic movement which bring the law in to more practicable arena and focuses more on experience rather than the paper rule. And the absolute skepticism emphasises that one whosoever can not claim for certain principle to be true or false.

In the case Ghouse v. Ghouse if the court used the literal interpretation of Adoption Act would be an abrogation of Muslim law. Therefore, it is evident proof that this has created an uncertainty of the law. When it comes to understand what law can be used while solving the difficulties raised in two conflicting laws. From this we could realize the confusing issues of realism such as; Is there a certain answer to legal questions, or are there instead only different, subjective opinions? Are past precedents of the court, statutes, and other legal materials sufficient to determine the correct legal outcome in a given case? Or is it instead merely a matter of a particular judge’s political opinions.

However, the general understanding is that if the court concern on the specific facts of the case the justice could be succeeded. In most of the cases where there exist absurdity and vagueness then the judges rather going for literal interpretations uses common mechanism and equitable principle to solve the matter. In most of the cases the issue lies with the application of laws to specific lawsuits, however in Ghouse case the determination of the judge gave effect in the process of selecting the proper rule which should be applied for the case. In the case the sole criteria for the judgement was generalia speciliabus non derogant rule. However, it leaves the doubt whether the court was succeeded in accomplishing the justice.

Therefore, in real scenarios a case may contain uncertainties in its facts or with the law itself. It is up to the judiciary to determine and to fix those uncertainties by means of various rules or common law principles. Emergence of uncertainties cannot be avoided since the facts of the case are not always the same, and on the other hand the laws may change and amend by the legislature from time to time. But in a common law system, the most important purpose of the opinion, particularly the appellate opinion, is to educate prospective litigants, lawyers, and lower court judges about the law: what it is and how it applies to a specific set of facts.[12] So the uncertainty and the predictability of the law could be rectified to a particular level by referring to judgements and by scrutinizing the application of legal rule and common law rules on different matters. Many realists advocated the study of judicial behaviour, arguing that to understand the law you must concentrate on the patterns of decisions revealed in actual cases as these are the most reliable guides to, and the most accurate basis for, prediction of what future courts will do. To some extent this may contribute to perceive how a particular legal regime will apply in the future, so one would expect individuals to adjust their behaviour.


Tyabji on Muslim Law (4th Ed.) states at page 208-209 pgs


Adoption of Children Ordinance No- 24 of 1941of 42 Parliamentary

Muslim Intestate Succession Ordinance No. 10 of 1931

Case Law

Ghouse v.Ghouse (SLR-1988 Vol.1-P25) vl


M.D.A Freeman,’Lioyd’s introduction to jurisprudential theory’

Suri Ratnapala, ’Jurisprudence law’

Journal Articles

Andew Altman,Legal realism, ‘critical and legal studies and Dworkin’

Brian Leiter,’American and Legal Realism’

E. George, Mitu d Gulati & Ann C. McGinley on,’The new old legal theory”


Web sites


[1] Dworkin Ronald, Vol -8 jstor, Harvard Law Journal Number 6 (1975) (accessed on 17th of June 2022) [2] Oliver Wendell holmes,jr (Jurist theory) [3] Greek philosopher of classic antiquity [4] Oliver Wendell Homes . The Bad Man Theory (Online source), Available at [5] Jerome Frank, who was not only a prolific writer on matters legal, but also an eminent corporation lawyer, a government counsel,an administrator [6] N (4) 844 [7] SLR-1988 Vol.1-P25) [8] [9] [10] University of Colombo, Faculty of Law ,Article on skepticism [11] AMERICAN LEGAL REALISM Brian Leiter*, Forthcoming in W, Edmundson & M. Gokling (eds.), The Blackwell Guide to Philosophy of law and Legal Theory (Oxford: BlackweD, 2003), id=339562>> accessed on 01srofmay 2017>> [12] THE NEW OLD LEGAL REALISM Tracey E. George, Mitu Gulati & Ann C. McGinley

Author is Mr. ASTLE, assistant Professor in School of Law – GITAM University, Visakhapatnam, Andhra Pradesh. He is a Gold medalist in LLM in Corporate Law from Pondicherry University and qualified for UGC NET in law. He holds Bachelors degree (BA LLB (1st Class) from Central university of South Bihar. He has published numerous papers in international and national journals.

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