UNIT-III
1. American Realism-
“ Law decided is what in respect particular set of facts prior such decision, the opinion the Court has of any to of lawyers is only a guess as to what the Court will decide and this cannot be treated as law unless the Court so decides by its judicial pronouncement.” - Frank Jerome : Modern Law and Mind (1930)The opposite of idealism is realism. Some jurists do not accept the existence of realism as a distinct school, but American realism still has been discussed by many scholars and researchers.
What is American Realism?
American realism is made up of analytical positivism and sociological approaches. It is broken down as:
1.Considering the law as it is, and
2.The law is the result of several elements
It is believed to be of adjudication rather than the mechanical concept of law. According to American legal realists, it is beyond the adjudication and more about the legal principles and not controversial facts. Legal realism brought about a huge revolution to the concept of early law and took it beyond the written legal codes and systems, and extended to social relationships and cultural approaches. Their focus has been on the significance of human will and imperfection during the enactment process.
What is American Realism?
American realism is made up of analytical positivism and sociological approaches. It is broken down as:
1.Considering the law as it is, and2.The law is the result of several elements
It is believed to be of adjudication rather than the mechanical concept of law. According to American legal realists, it is beyond the adjudication and more about the legal principles and not controversial facts. Legal realism brought about a huge revolution to the concept of early law and took it beyond the written legal codes and systems, and extended to social relationships and cultural approaches. Their focus has been on the significance of human will and imperfection during the enactment process.
Definition of American Realism
Instead of calling it a school of thought, American realism is termed as a movement. It is because the whole concept has not been definite, and there is no fixed approach to it.
Friedman
According to Friedman,Realist school prefers to evaluate any part of the law in terms of its effects.”
Roscoe Pound
According to Roscoe Pound,Realism is the accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be or as one feels they ought to be.”
History of American Realism
When the orthodox classes made unrealistic claims during the late 19th century in the United States, several scholars and jurists attacked the concepts and legal approaches. This led to the rise of legal realism.Therefore, American realism is the strong challenge made towards the classical legal and orthodox claims that were not supported by politics.
The school of legal realism is segregated into two parts:
1.Scandinavian Realism
2.American Realism
Scandinavian Realism
As the name suggests, Scandinavian realism was formed in the Scandinavian countries and other parts of Europe while American realism existed in the United States of America. Both the schools didn’t treat law as lifeless and implemented radical empirical approaches to the study of law. They studied law as one evaluates cause and effect in a relationship.
American Realism
‘Oliver Wendell Holmes’ introduced the concept of American realism in jurisprudence, and he is known as the ‘Spiritual Father of American Realism Movement’. In his paper, ‘The Path of the Law’, he provided the first approach to realism in the year 1987.
The Movement of American Realism
American realism is not a theory or a set of definite systems; it is a movement or a historical phenomenon. Even though it is one of the schools of legal realism, it is not called a formal school of thought.This movement commenced in the United States in the 19th century when Franklin D. Roosevelt was the President.The concept of American realism is known as the last element of sociological jurisprudence. It studies various aspects of law after its execution and its impact on the target element, hence it is known as realism. Some jurists such as Llewellyn do not accept American realism as a separate branch of jurisprudence. According to them, it is regarded only as a movement and not a theory.
Characteristics of American Realism
The law must be in flux and should be judicially created.
Law is a means to meet social relations. There should be a thorough analysis of the reason; its impact and it must be judged from both perspectives.
Societal changes are rapid as compared to the law. Therefore, there is a continuous requirement of examination of law to meet existing social issues.
Law is uncertain, and the predictability feature depends on the facts laid before the court to make decisions.
The formal and conceptual approaches to the law are not considered at all. This is because the court should decide a case based only on logical grounds and not on an emotive basis.
The realism movement has more emphasis on the psychological approach of law. It is connected with human behavior.
Realism states that legal terms affect the uncertainty of law and opposes it. So, it does not support legal terminology.
The legal case studies were analyzed from the judge’s justification to the decision already made and the motivation behind every decision.
The different outcomes of the courts within a similar framework are studied under the realism movement. These results are studied as per the facts of a case.
Difference between American Realism and other Schools of Jurisprudence
American Realism and Legal Positivism
Even though both these concepts are completely different from each other, there is one similarity. The views of jurists of both the schools are similar on the point of ‘law as it is’ and ‘law as it ought to be.’
American Realism and Sociological Approach
Realists are primarily focused on the execution of the law; its functioning and logical observation. They are not concerned with the ends of law as it is done in the sociological approach. Some jurists have refrained from giving the realism movement status of an independent school of jurisprudence. They think that it deserves the status of a new methodology.
American Realism and Natural Law
As the name indicates, it states that laws are enacted by God, or the universe or nature. However, the realist school differs from this opinion and states that judges or jurists create the law and the legal system. They are based on different aspects. Natural law is based on morality and ethical principles. But according to realists, the law is made by human beings who are qualified who are known as jurists or judges.
2. Revival of Natural Law School with Indian Approach: Rudolph Stammler; John Finnis; Lon L. Fuller
Natural law is the body of universal moral principles which has laid down the ethical and moral guidelines to regulate human conduct. It is also known as the Law of Nature. Natural law exists, even when it is not recognized by the government or state. Natural law theory has influenced the enactment of common law in England. There are various proponents of the natural law like Aristotle, Plato, Hobbes, Cicero, etc.
Revival of Natural Law
Towards the end of 19th century the ‘natural law’ theories revived due to many reasons, some of which are:
• As a reaction against the 19th-century legal theories which exaggerated the importance of positive law (law as it is) which caused the need for its revival
• The scientists themselves have accepted that scientific study is based on certain pre-supposed notions and in contrast to the concept of time and space the changes in the scientific investigation also became possible.
• It was realized that abstract or vague thinking was not completely futile, as they became guidelines or a code of conduct.• With the pace of new emerging and increasing problems, positivists realized its helplessness.
• The result of materialism on the society and altered socio-political conditions compelled the 20th- century legal thinkers to look for some value-oriented ideology which could help to prevent moral degradation of people in general.
• Both the world wars had created havoc in the world and morals, and principles had no place in the world. And it was realized that it is the need of the hour to formulate such laws which should be based on natural law principles.
Proponents of Natural LawIn regard to the revival of the natural law theory, the main contribution has been made by John M Finnis and Lon Fuller.John Finnis
• He defines law as “primarily the rules made by regulative legal rules by an effective authority for a complete community.” He has a very different perspective about natural law. He considers natural law neither in the relation to human nature or metaphysics.The Supreme Court of United States in the case of Lawrence v Texas[1] has addressed the issue of morality and the need for natural law. Finnis has tried to restate and provide modern analysis and interpretation to natural law. He also disposes of two important misconceptions about the theory of natural law
• He denies the fact that natural law is derived from objectivity and a set pattern of behaviour but instead asserts that it is an ascertainable from inside knowledge of innate motivation which is different in different persons
• Natural law does not claim view that law is not law if it contradicts morality.He has also laid down seven basic principles of human nature:
1. Life
2. Knowledge
3. Play
4. Aesthetic pleasure
5. Sociability
6. Practical reasonableness
7. Religion
Lon Fuller
He rejects the notion of natural law as a body of authoritative higher law, and that a man’s conduct should be measured in light of these principles. No natural law theory can be accepted which attempts to lay down in advance an eternal, unchanging code of nature. Rather, he suggests that a new name is suggested for an old phenomenon. He suggests the term ‘Eunomics’ which he defines as “the theory or study of good order and workable arrangement”. With this he warns that Eunomics must not attempt any orthodoxy or doctrine of binding ultimate ends.
According to him, the integrity of the laws is determined primarily by the process which it uses to accomplish its goals. The morality that makes law possible requires completion of 6 conditions:
• There must be formation of general rules to guide actions
• These rules framed must be made known to public
• The rules should be prospective in nature, meaning thereby they should suit to future and not regressive
• They should be framed in such a way that they are comprehensive and easily understandable
• These should be consistent with other rules
• They should be stable in a reasonable way, that is should not be changed too frequently.
Indian Constitution and Natural LawIndian Constitution is based on the pillars of Natural Justice, which is a revised version of natural law. Although the Constitution does not specifically talk about the principle of natural justice/law, the provisions are embodied in this sense. Starting from the Preamble, the words Justice inclusive of social, economic and political and equality of status and though, etc. prove that natural law principles are there in the Indian Constitution.
Apart from the Preamble, Article 14 ensures equality before the law to all the citizens without any discrimination of any sort. Then there is an Article 21which guarantee Right to Life and Liberty, which is also the most comprehensive article of the whole constitution is based on the premises of natural justice. Article 14, 19 and 21 which is also the golden triangle of the constitution has drawn inspiration from natural law.
Prominent Indian case-laws
In Air India v. Nargis Mirza, the Supreme Court had struck down the Air India and Indian Airlines regulations on retirement and pregnancy bar on the services of air hostesses as unconstitutional on the ground that regulations were arbitrary and unreasonable under Article 14 of the Constitution.In Maneka Gandhi v Union of India, the meaning of life and personal liberty under Article 21 came up for consideration and the Supreme Court held that the law established by the state should be just, fair and reasonable.In A.D.M. Jabalpur v Shivakant Shukla, this was a case of Habeas Corpus petition. This was in the context of suspension of enforcement of Articles 14, 21 and 22 during the time of emergency. Court held that even in the absence of Article 21, the right to life and liberty of a person cannot be taken away.
Conclusion
The concept of natural law has taken several forms. The idea began with ancient Greek’s conception of a universe that is governed by an unchanging, eternal law; the natural law had its importance in every period. Even when there was degradation of natural law in the 19th century, it was realized that natural law and not positivism is the panacea for all the problems.
Later, after the drastic consequences of the World Wars, there was the setting up of a natural law school. Post World War situation was the reason for the introduction of UDHR. There have been several theories on natural law, like some scholars believed that morality is essential for existence of a person in the society, while others gave it different names like Eunomics or natural justice (let the other party be heard or nobody shall be a judge in his cause)But an excess of everything is dangerous; even the natural law has committed excesses. The abstract principles of the natural law led to the development of some of the laws which were in conflict with different communities or sections of the society. Therefore, any law should be based on the mixture of natural law principles of morality and justice, and the positivistic principle of some fixed proposition, which is the law as it is and even a cue can be taken from the sociological or historical school.
3. Feminist Legal Theory and Women Empowerment in India.
Feminist jurisprudence is a burgeoning school of legal thought that encompasses many theories and approaches to law and legal issues. Each strain of feminist jurisprudence evaluates and critiques the law by examining the relationship between gender, sexuality, power, individual rights, and the judicial system as a whole. As a field of legal scholarship and theory, feminist Jurisprudence had its beginnings in the 1960s. By the 1990s it had become an important and vital part of the law, informing many debates on sexual and Domestic Violence, inequality in the workplace, and gender-based discrimination at all levels of U.S. society.
Feminist jurisprudence intersects with a number of other forms of critical theories, most notably critical race theory and the study of Gay and Lesbian Rights. Moreover, the form of feminist thought that focuses on legal theory draws from feminism in other disciplines, including sociology, political science, history, and literature. Leaders in the feminist jurisprudence camps thus do not focus exclusively upon purely legal aspects of feminism.
Scholarship in Feminist Jurisprudence
Feminists also criticize mainstream jurisprudence as patriarchal. They say that male-dominated legal doctrine defines and protects men, not women. By discounting gender differences, the prevailing conceptions of law perpetuate patriarchal power. Because men have most of the social, economic, and political power, they use the system to subordinate women in the public spheres of politics and economics as well as in the private spheres of family and sex. The language, logic, and structure of the law are male created, which reinforces male values. Most troubling, these concepts and values are presented as and are widely perceived to be both neutral and objective.
For example, in determining liability in Negligence actions, the law crafted the "reasonable man" test. This "man" was a hypothetical creature whose hypothetical action, reaction, or inaction in any situation was the law's standard of reasonable conduct for real people in similar circumstances. Person in the name for this test, which might seem to resolve the problem, has replaced the gender-biased term man. But some feminist legal scholars have argued that a gender-neutral label merely avoids the fact that the test is based on assumptions of what a male would do in a situation. They propose that when an action involves a female, a court should apply a "reasonable woman" test. By doing so, the court would recognize the differences in how males and females react to situations.
Current Issues in Feminist Jurisprudence
While the different camps of feminists in legal theory have focused upon different agendas, feminist jurisprudence has changed the way legislators and judges look at issues. By asking the "woman question," feminists have identified gender components and gender implications of laws and practices that are claimed to be neutral. Moreover, this school of thought has brought needed changes in the law to protect certain rights of women that have not been protected adequately in the past One of the most pressing issues in women's rights is the protection of women from domestic violence. According to some statistics, as many as four million women per year are the victims of domestic violence, and three out of four will be the victims of domestic violence in their lifetimes. Led by women's groups and other supporters outraged by these numbers, Congress enacted the violence against women act as Title IV of the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. No. 103-322, 108 Stat. 1796 [codified as amended in scattered sections of 18 and 42 U.S.C.A.]). Feminist advocates support a broad interpretation of the types of advances that constitute sexual harassment. To many feminists, sexual harassment represents the domination men seek to exert over women and should be strictly prohibited. The issue has caused controversy because in some cases it is difficult to determine whether sexual advances are welcomed or not. Moreover, some cases have arisen because an employer or supervisor has told a dirty joke or displayed a sexually explicit photograph to a female employee. Women's groups maintain that sexual harassment laws should be liberally construed, even in these types of cases. Thus, above all schools of jurisprudence plays a vital role in the whole study of law.
What Is Women Empowerment?
Women empowerment implies the ability in women to take decisions with regard to their life and work and giving equal rights to them in all spheres like: personal, social, economic, political, legal and so on. We are living in an age of women empowerment where Women are working shoulder to shoulder with men. A woman also manages to balance between their commitment to their profession as well as their home and family. They are playing multiple roles - at home as a mother, daughter, sister, and wife and at working place as professionals with remarkable simplicity and compatibility.
Women empowerment is essential for the betterment of any country's future as they play dual responsibilities of managing their families while simultaneously juggling to earn to contribute in fulfilling their family needs. No one can ever ignore the importance of the role of a mother, sister, or a daughter in their families. At the same time, women have also established themselves as equal contributors in managing the financial requirements of their homes. On international level as well, women have successfully created their unbeatable position, but they are just a handful in comparison to their counterparts.
• Women empowerment is not limited to urban and even women in remote towns and villages are now increasingly making their voices heard loud and clear in society. While it is true that women, to a large extent, do not face discrimination in society today/unfortunately, many of them face exploitation and harassment which can be of diverse types: emotional, physical, mental and sexual. They are often subjected to rape, abuse and other forms of physical and intellectual violence.
• Women are now claiming the socio-political rights (right to work, right to education, right to decide, etc) for them. The Parliament of India too has passed various legislations to save women from various forms of Injustice and discrimination. To empower women there are some following laws Equal Remuneration Act- 1976: Dowry Prohibition Act-1961: Immoral Traffic (Prevention) Act-1956, Medical termination of Pregnancy Act-1971: Maternity Benefit Act-1961: Commission of Sati (Prevention) Act-1987: Prohibition of Child Marriage Act-2006) Pre-Conception & Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act-1994 and Sexual Harassment of Women at Work Place (Prevention. Protection and) Act-2013.
• More recently, in the wake of Nirbhaya case involving the rape and brutal murder of paramedical student in Delhi, the government has passed the Juvenile Justice (Care and Protection of Children) Bill, 2015. This Act makes a significant departure from the earlier Juvenile justice (Care and Protection of Children) Act, 2000, as the juvenile age inviting punishment for offence now stands reduced from 18 to 16 years.
• The most famous pearl of wisdom said by the Pandit Jawaharlal Nehru is To awaken the people, it is the women who must be awakened. Once she is on the move, the family moves, the village moves, the nation moves. In India, to empower the women, first it needs to kill all the demons killing women's rights and values in the society such as dowry system, illiteracy, sexual harassment, inequality, female infanticide and domestic violence against women, rape, prostitution, illegal trafficking and other issues. Gender discrimination in the nation brings cultural, social, economic and educational differences which push country back. The most effective remedy to kill such devils is making women empowered by ensuring the Right to Equality mentioned in the Article 14, Constitution of India.
• According to the provisions of the Constitution of India, it is a legal point to grant equality to women in the society in all spheres just like males have. The Women are given a top place in India from the ancient time however they were not given empowerment to participate in all areas. They need to be strong aware and alert every moment for their growth and development. Empowering women is the main motto of the development department because an empowered mother with child makes the bright future of any nation.
Position And Status of Women
The position and status of women all over the world has risen extraordinarily in the 20th century. We find that it has been very low in past centuries in India and hence they were treated like objects that can be bought and sold. For a long time women in India remained within the four walls of their household. They totally depend on menfolk.
In India, the customs of purdha (veil system), female infanticide, child marriage, sati system (self-immolation by the women with their husbands), dowry system and the state of permanent widowhood were totally removed.
It would help the innumerable women in the country who get neglected by their husbands and have no means of proving their marital status. It would also help check child marriages, bigamy and polygamy, enable women to seek maintenance and custody of their children and widows can claim inheritance rights. The Act is applicable on all women irrespective of caste, creed or religion. It truly helps to empower indian women to exercise their rights.
Benefits of Women Empowerment:
Women empowerment raises confidence of women in their ability to lead meaningful and purposeful lives. It eliminates their dependence on others and makes them individuals in their own right. They are able to lead their lives with dignity and freedom which increase their self esteem and give them a unique identity. They are able to gain recognition and form a meaningful contribution to the well-being of society.
Women act as capable citizens to make the country achieve and boost Gross Domestic Product (GDP) growth as they are financially independent they are able to spend on all their needs and desires and they also get fair and equitable access to resources of the country.
Necessity of Women's Empowerment
Without women's empowerment, we cannot remove injustice and gender blas and inequalities. If women are not empowered, they deprived from enjoying security and protection in life it also provides them a secure working environment
Empowerment acts as a powerful tool against exploitation and harassment of women. It is a great means to get adequate legal protection for women
If not socially and economically empowered, women cannot blossom their own identity in society and if they are not employed, the global economy will be adversely affected as women constitute a large extent of the world's population. As women are highly creative and Intelligent this makes it mandatory to receive their contributions in socio-economic activities. For a just and progressive society, women need to be provided equal opportunities for work
The challenges/barriers of women empowerment are the following:
Because of the inherent dominance among the males, they often don't allow their female counter-part to rise as high as them. Women are bound to high level of domestic responsibilities and they are also restricted to participate in social, economic and religious activities. In our society, preference for male-child still exist and priority for education and healthy diet given to the boy child over girl child.
To overcome barriers
Education through mass communication is very important. Both women and men should have aware of their responsibilities for promoting and practicing gender-equality.
Accumulate national data and identify the areas where occurrence of violence and gender-inequality is on peak. This data can be used by the Government, NGOs and field workers to increase the status of wormen. The society should be made aware that both boy-child and girl-child are equally treated, and they both should have equal access to available resources.
A person may be said as powerful, when he/she may have the right of particular things and also have control on a large particular portion of power resources such as knowledge, education, social status, capabilities of mobilization, personal wealth, leadership training, etc.
Summit on women empowerment
The summit called Woman up! Organized by Siyahi, a literary agericy commence in October, 2019. Financial independence for women is not just about being a part of the workforce. For women to be truly financially independent, it is extremely imperative for men to be active allies and equitable partners in taking up the responsibility of domestic and familiar affairs.
The Woman Up! Summit will reflect on such crucial yet often overlooked subjects in the advancement of gender equality. Another theme that will be dwelt upon is the need for science and entrepreneurship to work together as engines of societal change. With several sessions in Hindi, the bilingual nature of the summit makes it an inclusive platform for people from all walks of life to learn and be inspired. Mita Kapur, Founder, curator and producer of Woman Up! Summit said.
Leading Cases
In case of C.B. Muthumma v. Union of India (1979) 4 SCC 260)44, a writ petition was filed by Ms Muthamma, a senior member of the Indian Foreign Service, complaining that she had been denied promotion to Grade 1 illegally and unconstitutionally. She pointed out that several rules of the civil service were discriminatory against women. At the very threshold she was advised by the Chairman of the UPSC against joining the Foreign Service. At the time of joining she was required to give an undertaking that if she married she would resign from service.
Under Rule 18 of the Indian Foreign Service (Recruitment. Cadre, Seniority and Promotion) Rules, 1961, it was provided that no married woman shall be entitled as of right to be appointed to the service. Under Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961, a woman member of the service was required to obtain permission of the Government in writing before her marriage was solemnisedAt any time after the marriage she could be required to resign if the Government was confirmed that her family and domestic commitments were likely to come in the way of the due and efficient discharge of her duties as a member of the service. On numerous occasions the petitioner had to face the consequences of being a woman and thus suffered discrimination, though the Constitution specifically under Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article 14 provides the principle of equality before law.
In case of Air India v. Nargesh Meerza ((1981) 4 SCC 335)45, Nargesh Meerza filed a writ petition. In this case, the air-hostesses of the Air-India International Corporation had approached the Supreme Court against, again. discriminatory service conditions in the Regulations of Air-India. The Regulations provided that an air-hostess could not get married before completing four-years of service. Usually an air-hostess was recruited at the age of 19 years and the four-year bar against marriage meant that an air-hostess could not get married until she reached the age of 23 years:
If she married earlier, she had to resign and if after 23 years she got married, she could continue as a married woman but had to resign on becoming pregnant. If an air hostess survived both these filters, she continued to serve until she reached the age of 35 years. It was alleged on behalf of the air hostesses that those provisions were discriminatory on the ground of sex, as similar provisions did not apply to male employees doing similar work. The Supreme Court upheld the first requirement that an air-hostess should not marry before the completion of four years of service.
The court held that: "It was a sound and salutary provision. Apart from improving the health of the employee it helps a great deal in the promotion and boosting up of our family planning programme."
However, this argument given by the Court came in for criticism that as the requirements of age and family planning were warranted by the population policy of the State and once the State had fixed the age of marriage, le. 18 years, the reasoning advanced for upholding the rule was a camouflage for the real concern. The Supreme Court struck down the Air-India Regulations relating to retirement and the pregnancy bar on the services of Air-hostesses as unconstitutional on the ground that the conditions laid down therein were entirely unreasonable and arbitrary.
The impugned Regulation 46 provided that an air hostess would retire from the service of the corporation upon attaining the age of 35 years br on marriage, if it took place within 4 years of service, or on first pregnancy. whichever occurred earlier. Under Regulation 7. the Managing Director was vested with absolute discretion to extend the age of retirement prescribed at 45 years. Both these regulations were struck down as violative of Article 14, which prohibits unreasonableness and arbitrariness.
Government Enactments
The National Commission for Women has in the last few years introduced several new bills in the parliament from time to time towards eradication of many social evils. Some of the significant enactments are mentioned here. Beti padao beti bacho yojana.
• The Dowry Prohibition Act, 1961
• The Hindu Widow Re-Marriage Act of 1856: In the traditions at Hindu society there was a ban on widow remarriage it was one of the most important evils from which women in the traditional Hindu society suffered a lot. This act allowed widow to remarry and section 5 of this Act ensured her to enjoy all the rights, which a married woman did.
• The Child Marriage Restraint Act of 1929: The practice of child marriage was another social evil from which women in traditional Hindu society suffered a lot. Age at marriage for girls was 9 or 10 and after passing this act the minimum marriageable age of women was fixed to 15 years. Later this age was increased up to 18 years.
• The Hindu Marriage Act of 1955: This Act has recognized the equal rights of men and women in the matters of marriage and divorce. Under the provision of this Act either the man or woman[ii] can present a petition in a court of law for divorce, wife has got equal right to divorce husband.
Conclusion
The Empowerment of Women has become one of the most important concerns of 21st century not only at national level but also at the international level. Women Empowerment helps to make the society and world a better place to live in and march forward on way to inclusive participation. It means increase happiness for the family and the organizations where women make a difference. Government initiatives alone would not be sufficient to achieve this goal. Society must take initiative to create a climate in which there is no gender discrimination and women have full opportunities of self decision making and participating in social, political and economic life of the country with a sense of equality.