Contrasted With Things As They Are Imagined To Be or Wished To Be or As One Feels They Ought To Be"
Contrasted With Things As They Are Imagined To Be or Wished To Be or As One Feels They Ought To Be"
The realism is the anti-thesis of idealism. Some jurists refuse to accept the realist school as a
separate school of jurisprudence. American realism is a combination of the analytical positivism
and sociological approaches. It is positivist in that it first considers the law as it is. On the other
hand, the law as it stands is the product of many factors. In as much as the realists are interested
in sociological and other factors that influence the law. Their concern, however, law rather than
society. Realists dont give any importance to laws enacted by legislature. And they uphold only
judge-made law as genuine law. A great role of judges understanding about law, society and
also their psychology affect any judgment given by them. At the same time, in a same case
applying same law two different judges give the different judgments.
There are certain principal features of realistic jurisprudence as outlined by Karl Llewellyn and
Prof. Goodhart:
1.
There has to be a conception of law in flux and of the judicial creation of law.
2.
Law is a means to social ends; and every part of it has constantly to be examined for its
3.
purpose and effects, and to be judged in the light of both and their relation to each other.
Society changes faster than law and so there is a constant need to examine how law meets
4.
deciding a case reaches its decisions on emotive rather than logical ground.
They lay greater stress on psychological approach to the proper understanding of law as it is
7.
concerned with human behavior and convictions of the lawyers and judges.
Realists are opposed to the value of legal terminology, for they consider it as tacit method of
Indian legal system, though endows the judges with extensive judicial discretion, does not make
them omnipotent in the matter of formulation of law. The legislative statutes and enactments,
precedents and the rules of equity, justice and good conscience are indispensable part of the
judicial system in India. The constitution of India itself provides ample scope for the judges to
take into consideration the hard realities of socio-economic and cultural life of the Indian people
while dispensing social and economic justice to them.
In short, it may be reiterated that though Indian jurisprudence does not formally subscribe to the
realists legal philosophy, it does lay great stress on the functional aspect of the law and relates
law to the realities of social life. Again, it refuses to accept the realists view that Judge-made
law is the only real law and other laws are worthless, but at the same time it does not
completely ignore the role of Judges and the lawyers in shaping the law. Thus it would be correct
to say that the Indian legal system has developed on the pattern of sociological jurisprudence as
evinced by the post-independence socio-economic legislation but it considers doctrine of realism
alien to Indian society which has a different life-style and social milieu. Undoubtedly, the Indian
judges do have the liberty of interpreting law in its contextual and social setting keeping in view
the social, economic, political, cultural, historical and geographical variations of the Indian
society. The power of review and doctrine of overruling its earlier decisions has enabled the
Supreme Court to effectuate the socio-economic contents of the constitutional mandate through
the process of judicial interpretation and use of its inherent powers. Thus the Apex Court in
Bengal Immunity Case overruled its earlier decision in Dwarkadas v. Sholapur Spinning
Co.and observed that the Court is bound to obey the Constitution rather than any decision of the
Court, if the decision is shown to have been mistaken. Justifying its stand, the Court further
observed that where a constitutional decision affects the lives and property of the public and
where the Court finds that its earlier decision is manifestly wrong and injurious to the public
interest, it should not hesitate to overrule the same.
RESEARCH QUESTIONS
OBJECTIVE
RESEARCH METHODOLOGY
This research is purely doctrinal and researcher has referred to secondary source.
LITERATURE REVIEW
It is the closest what India has to natural law and ethos, and finds its ultimate aim in the welfare
of society. It includes anything that is right, just and moral. It originates from the Vedas and is a
time immemorial concept. This paper analyses the decline of dharma with the advent of positive
law and how it found its way in legislations in India post-independence.
WEB SOURCES
Be legal, Be intelligent American Realist School of Jurisprudence.html