Legal Realism, Positivism, Marxism, Critical Legal Thinkers, And Legal Feminism

What is Legal Realism and How is it Different from Legal Positivism?

1). Legal realism is an American approach to the philosophy of law. It is an effort to take the tough controlled, cold observed look at how the legal system really operates. It is response to the formalistic account of law and automated jurisprudence. The legal realism is a realistic strategy to law. It is the view that jurisprudence should follow the procedure of normal science such as depend on on practical confirmation. Theories have to be verified against interpretations of the world.

There is a relationship between the jurisprudential theories namely Legal Realism and Legal Positivism. These two doctrines Legal Realism and Legal Positivism are significantly incompatible or different at the ethical or theoretical stage. The legal realism is different from legal positivism. The legal positivism has its own grounds and location but its testimonial that there is no linking of ethics with law declines it. The society cannot be missing on the free spirit of self-determination to authorise without any fear of standards and morals. On the other hand, the most of legal realists state that laws, rules, and regulations in books do not determine the arguments or disagreements. The juries are the independent who understand the rules, regulations, and laws. This is said the reaction about the law is what the magistrates and officers do. Legal realism says that varying requirements of culture are rules and regulations, and juries understand statue and these manners render new rules, regulations, and laws. The comparison can be done by differentiating these two theories according to their characteristics-

2). The Legal realists analyse the theory of legal positivism and theory of natural law. The chances of any significant relation between the legal realists and natural law seems at main rather unbelievable. The legal realism is showed as the serious, at times practically radical strategy to laws, the glacial contradictory of the olden natural law theory that touches its origins to Greek and Roman viewpoint, and asserts on unchangeable impartial standards and morals. Yet, Karl Llewellyn and Jerome Frank, the most famous legal realists showed in some of their works more than a temporary commendation of theory of natural law.

Further, legal positivism is required to be differentiate from legal realism. The dissimilarities are both logically significant. It is considered by both systems that law is a social concept. Contrasting legal realists, it is believed by legal positivists that in various cases, the law gives rationally determinate directions to its subject and to juries, at least at the time of hearing in court. However, no legal positivist has ever proclaimed that law are created valid by the decisions of anyone. As per the view of Hart, the legitimacy of law is a case of the ordinary and communal approaches of the court. As for the moral validity of law, the legal positivists and legal realists keep that it is a case of ethical values. ‘There is a no important role of power of decision in either, since individual decision rarely suffices to make the social practice of identification and it would be unlikely to assume that ethical values are made so by the decision of anybody.

Why do Legal Realists Critique Positivism and Natural Law?

The skill of legal decision-making is the keystone of the judicial system. The public officers have the powers and impact of the governing magistrate. However, the procedure of how magistrates take their verdicts has puzzled and attracted legal researchers, advocates, and complainants for periods. The opinions of local performing magistrates, as well as a local working lawyer, are involved in this valuation, serving to shelter an existing light on the judicial matters. The most universal and adopted theory of how magistrates reach at lawful decision is that pronounced by legal realists. The opinion of legal realists of legal procedure is linked with significant jurists as, Joseph Bingham, Wendell Holmes, Karl Llewellyn, Jerome Frank, and Eugene Ehrlich. This theory is characteristically unreasonable. It is greatly depended on the faults professed by the legal realists in previous legal decision-taking theories. Legal realists specify that magistrates decide the result of the complaint before determining whether result is, in fact, depended on the recognized judicial opinion. In different words, the magistrates analyses the particulars stated and determine how they will rule without first evaluating example and legal laws, rules and regulations.

3). Marxism refers to the set of financial concepts and administrative concepts. The foundation of these concepts originates from the work of Friedrich Engels and Karl Marx. The financial concepts and administrative concepts have had many effects in various nations. Marxism is the administrative of governmental viewpoint depended on the works of Karl Marx that focuses the significance of the efforts between various social groups. In this way, it can be said that the financial concepts and administrative concepts and practices instigated by Friedrich Engels and Karl Marx that grasps that acts and human organisations are financially decided, that the group effort is the fundamental activity of old variations and that capitalism will ultimately be superseded by communism.

It is believed by Karl Max that law is the produce of group cruelty, and that law would have to evaporate with the beginning of socialism. The ideas of Marxist are strictly related with absolute socialist administrations, since these administrations have appealed Marxism as legal philosophy. Inappropriately, the Marxist think of an unlegislated society has headed only to gross dissimilarity and group oriented genocidal guidelines. Marxist commands have been far more efficient in the art of murder number of people than in the art of producing any concrete or professed form of social justice. However, it seems that Marxism is still very much active, and that it has greatly affected the direct link of modern legal philosophers, who have accepted some concepts or chosen some facets of this essential philosophy. Certainly, Marxist theory overlays with much of the existing task in complex law theories like fundamental radicalism and race legal system. It can be considered as complicated expansion, since history empirically establishes rather categorically that whenever Marxist legal theory is applied, at least two of the most frightful features habitually look such as judicial bias and administrative uncertainty. This is the reason to study the Marxism as legal theory.

What Benefit does this Have on How We Understand How Theory Impacts on Judicial Decision Making?

Marxism is considered as a part of legal theory. Marxist theory of law shows various common themes that have been revised in new and different arrangements. The Marxist approaches to law are following-

• Law is unavoidably radical.
• State and law are greatly linked. The law displays the comparative independence from the state.
• Law renders the consequence to, mirrors or is otherwise communicative of the fundamental commercial relationship.
• Law is always possibly forced and establishes the country’s domination of the means of force.
• The content and procedures of law evident the interests of leading group in direct or indirect manner.
• Law is conceptual. The law establishes and offers legitimation to the implanted beliefs of leading groups.

4). It is believed by critical legal theorists that legal realists understate scope of indeterminacy. On the other hand, it is believed by legal realists that indeterminacy is limited in the manner that it is limited to the various group of matters. It is argued by critical legal theorists that law is radically unspecified in the manner that the group of existing legitimate resources infrequently, if reasonably involves the specific result.

The focus of critiques is on Critical legal studies (CLS) main contentions on legal indeterminacy, focusing on proposed legal theory. The critical legal studies (CLS) dares the grounds and function of the present administrative system and legal system. The critical legal theorists highlight the part of philosophy in creating the law contents. As per this opinion, the law content in generous equalities essentially shows conceptual fights among social groups, where challenging commencements of the fairness, public and administrative life is cooperated, reduced, and accustomed. The law is unpredictable; the magistrate can validate any inconsistent results. The critical legal theorists also share relevant opinion that the law is unspecified. They have stated that using normal legal arguments, it is probable to get severely conflicting results in particular matters. The results of any matter will have lot of to do with social framework, where they are argued and decided than with any main system of legal reasoning. Further, it is argued by the critical legal theorists that the mysterious and complex nature of legal reasoning really displays the indeterminacy of law. The critical legal theorists have used concepts of deconstruction to discover the manners, where legal text is open to various clarifications.

Moreover, the legal formalism and legal positivism that look upon laws as the system of rules and regulations, which are reasonably made, are disclaimed. Old-style legal grant treats the law as neutral. The critical legal studies claim that law may not be objective. The reason is that human realisms and social realisms always apparent themselves in legal treatises. According to these traditional liberal commencements, the area of juries is to understand, and not form law.

5). The Feminist legal theory is the learning of the logical basis of fairness and law; well versed by experience of females. The goal of feminist legal theory is to alter the legal structure and the understanding of it to enhance the excellence of jurisprudence and lives of females. Feminists employed in law share the opinions that the past and ongoing eliminations of females from defensive area of law have incapacitated women and that the elimination of females from learning of law has restricted both the study of law and it principled scope. Feminists have consequently required altering the regulations and values leading specific law areas such as tort law, constitutional law, and criminal law so as to make them more approachable to the requirements of women and more thoughtful of women’s viewpoints.

The feminist viewpoint of law recognises the universal effect of patriarchy, masculinize standards on legal framework, and states the influences on the material situations of females and girls and those who many not follow to cisgender standards. It also takes into consideration, the issues at the connection of sexuality and law and establishes improvements to accurate gender unfairness, exploitation, or control. The feminist viewpoint of law relates visions from feminist epistemology, interpersonal metaphysics and advanced social ontology, feminist administrative theory, and other expansions in feminist attitude to learn how legal organisations impose leading gendered standards. Modern feminist viewpoint of law also draws from varied learnt viewpoints such as worldwide human rights theory, critical legal study, race theory, and incapacity educations.
These social justice feminists made focus on labour reform, first in looking for decreased working duration and good working situations and in future the minimum pay. It is explained by McGuire that the social justice feminists had revolved the struggles to securing females employees, with the eye to increasing workplace defences to all the workers. The legal feminism assisted the person to distribute the justice in society by aaddressing the aims of feminist viewpoint of law needs theory expansion, logical evaluation, and logical review. Encouraging the freedom and fairness for females shows thoughtful change in fundamental norms about female’s nature and the specific place in world: the change from dissimilarity to similarity of the sex, along with re-evaluation of what fairness itself needs. It also requires re-evaluation of understanding of genders.

Reference:

Articles/ Books/ Reports

Bartlett, Ketharine, Feminist legal theory: Readings in law and gender (Routledge, 2018)

Campbell, Tom, The legal theory of ethical positivism (Routledge, 2016)

d’Entreves, Alexender, Natural law: an introduction to legal philosophy (Routledge, 2017)  

Kalman, Laura, Legal realism at Yale, 1927-1960 (UNC Press Books, 2016)

Kubalkova, Vanish, and Cruickshank Andy, Marxism-Leninism and the theory of international relations (Routledge, 2015)

Parekh, Bhiku, Marx’s Theory of Ideology (Routledge, 2015)