Legal Realism, Law is what the Judges decide, Legal Realist Jurisprudence, American Realism, English скачать в хорошем качестве

Legal Realism, Law is what the Judges decide, Legal Realist Jurisprudence, American Realism, English

Realist Theory Law is what the Judges Decide Dr. Friedman considers John Chipman Gray (1839-1915) and Oliver Wendell Holmes (1841-1935) as the mental fathers of the realist movement.  It concentrates on a scientific observation of law in actual practice- which means that they focus on how law works in real-life situations, based on actual cases and decisions. They aim to understand the law, through practical observation, rather than just theoretical rules.  They reject the traditional definition of law: meaning that they focus on how court decisions are made and how judges apply the law in real cases.  They study the forces which influence judges in reaching their decisions- dear friends judges examine various factors, such as their personal beliefs, experiences, and social influences in reaching their decisions. They believe, these forces play a key role in how judges interpret the law.  Law is the product of many factors; according to legal realists, the law is what judges decide in real cases, influenced by social, economic, and personal factors. Key Aspects of Legal Realism 1. Law is Not a Set of Fixed Rules 2. Judicial Discretion: 3. Focus on "Law in Action": 4. The Role of Social and Economic Context: 5. Rejection of Legal Formalism: For Example 1. Kesavananda Bharati v. State of Kerala (1973): • Case Overview: In this landmark case, the Supreme Court of India addressed the power of Parliament to amend the Constitution. The Court's ruling established the "basic structure doctrine," which limits, Parliament's power to alter the fundamental framework of the Constitution. • Realist Influence: The decision was not, merely based on the strict text of the Constitution but also on the evolving political and social realities of the time. • Legal Realism: The judgment reflected the influence of societal values and the political climate, as the Court sought to preserve the Constitution's integrity in the face of changing political forces. 2. Maneka Gandhi v. Union of India (1978): • Case Overview: Maneka Gandhi challenged the suspension of her passport, arguing that it violated her fundamental rights under Articles 21 (right to life and personal liberty) and 19 (freedom of speech and expression) of the Indian Constitution. • Realist Influence: The Supreme Court expanded the interpretation of Article 21, ruling that the right to life and personal liberty included a broader scope of rights, including the right to travel and the right to be heard. • Legal Realism: The Court's decision was influenced by the growing awareness of civil liberties and the need for a broad and flexible interpretation of fundamental rights, rather than adhering strictly to the original text of the Constitution. This reflects legal realism, where the law adapts to the needs of society. 3. Indian Young Lawyers Association v. The State of Kerala (2018) known as [Sabarimala Case]: This case revolved around the prohibition of women from entering the Sabarimala Temple. The Supreme Court ruled that the practice violated the right to equality and freedom of religion. • Realist Influence: The Court’s decision was influenced by evolving interpretations of equality and gender rights, as well as the growing prominence of women's rights movements in India. • Legal Realism: While the law in books emphasized religious practices, the Court’s decision was guided by broader societal values and the need to ensure equality and non-discrimination. This illustrates, the realist belief that legal decisions should reflect the social and political climate. 3. (Shayara Bano v. Union of India, 2017): Triple Talaq Case In this case, the Supreme Court of India declared the practice of, instant triple talaq (a form of divorce in Islam) unconstitutional. The court recognized that the practice was harmful to women and violated their constitutional rights, even though it had been a traditional religious practice for centuries. • Legal realist element: The judgment highlighted the importance of social justice and equality in legal decisions, and how laws must be interpreted in light of current social realities, particularly concerning gender equality. Criticisms of Legal Realism 1. Judicial Activism: 2. Inconsistency in Decisions: 3. Overemphasis on Social Context: 4. Undermines Legal Consistency: 5. Difficulty in Implementation: