A Jurisprudential Analysis of Legal Formalism and Legal Realism under Indian Legal System

  • Kumari Sweta
  • Show Author Details
  • Kumari Sweta

    Student at ILS Law College, Pune, India

  • img Save PDF

Abstract

In Jurisprudence, there are two different families of theories of adjudication i.e., theories as to how judges do or should decide cases. These theories are of Legal formalism and Legal realism which are said to have a long history in legal thought. Theory of formalism claims that judicial decision-making involves nothing more than mechanical deduction. Whereas, Theory of Realism claims that descriptive thesis is embraced as regards to adjudication i.e., in deciding cases, judges react primarily to the underlying facts of the case, rather than to applicable legal rules and reasons. It is called realist because the concepts which provide the major premises for legal reasoning could be altered by the judges in response to changing perceptions of public policy. The pace of change and especially the change in adjudication is affected by the need to preserve a reasonable degree of stability in law. The paper further highlights as to how far the theories of realism and formalism have been accepted or disregarded by the Indian Judicial System. What is the approach that Indian judicial set up adopts? Is it the Formalist approach which establishes that judicial interpreters can and should be tightly constrained by the objectively determinable meaning of a statute; or it stands with the idea of Realism which resonates that there are norms embedded in the law for judges to discover, and that discovery is effected by looking to the underlying purpose of the law while, all the time, making the present decision consistent with those that preceded it? Or, has the Indian Legal system disregarded both the theories and taken a different path instead? All the relevant issues regarding Indian Judicial-Decision making process have been discussed at length in the paper.

Type

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 3, Page 1970 - 1996

DOI: https://doij.org/10.10000/IJLMH.11709

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021