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Legal realism (Essay Sample)


it is about legal realism as a school of thought


Legal realism is one of the schools of legal philosophy. Legal realism, as a school of thought, challenges the orthodox claims of the classical legal thought. Under the classical thought, the law is seen as an autonomous system of principles and rules that can be applied by courts to reach proper decisions with judicial legal background CITATION Fis93 \l 2057 (Fisher, Horwitz and Thomas).The realists strongly maintain that adjudication of common law is a subjective system that is bound to produce inconsistent results. Common law eliminates objectivity; the judges' makes decisions based on their moral, social and political affiliations. It is the duty of every citizen to abide by the law and take it upon him/herself to report those who break the law. In his sociological theory of relativity, Donald Black claims that social variables not only make significant influence in the legal decision making process but that legal decisions and outcomes are significantly determined by social factors. The idea of equality before the law requires that, all legal cases with similar facts be decided in a similar, no discriminate manner CITATION Fra07 \l 2057 (Francioni). This legal standard is not always realized and the legal decision making process is affected by the incorporation of social variables. Discrimination is a crucial issue worth analysis when one talks about analysis of human rights. The law should apply equally irrespective of one's political or social standing. This is better said than done as judicial decisions have been found to be discriminating in many cases. Discrimination is a problem that always arises in relation to equality before the law. There is a lot of discussion on discrimination yet much of this is irrational analysis and poor understanding of the aforesaid concept CITATION Bon01 \y \l 2057 (Berry). It is with no doubt that human beings are not equal in all aspects. Every individual is different from the other in a unique way, be it mental or physical attributes. These differences sometimes lead to acts that manifest as forms of discrimination CITATION Bon01 \l 2057 (Berry). There are truly many situations where one individual should be treated in a different manner from the other as a child is subjected to different duties from those of the adult. According to the demands of the Rule of Law, individuals should be protected from any arbitrary power as well as enjoy equal privilege and protection of the law CITATION Fra07 \l 2057 (Francioni). This is a principle that judicial systems have always tried to achieve and maintain. However, social variables that are always underestimated and considered as less relevant in case facts are influencing the legal decision making process. This influence is creating a judicial system that favors some individuals or parties in expense or over others. The result is a contradiction between the philosophical intentions of the law and the way the law is actually practiced CITATION Bon01 \l 2057 (Berry). Legal philosophy has accepted ideals of equality which are absent from actual practice of law. The phrase access to justice is a broad concept just like the way justice is a vague concept. There are so many factors that have to be put in consideration in an attempt of trying to understand what access to justice actually means CITATION Fra07 \l 2057 (Francioni). Such factors include a definition of the class or part of society that requires access to justice. Although the right of access to justice is considered a fundamental right, there are no universally and fundamentally applicable means of satisfying this right as the society is composed of heterogeneous groups. This heterogeneity makes it hard to come up with a single definition of access to justice. Justice may be said to be the application of the law in governing, and the use of resources and infrastructures to administer justice. Access to justice constitutes fair access to all the privileges provided for under the bill of rights as well as access to the infrastructures of justice CITATION Fis93 \l 2057 (Fisher, Horwitz and Thomas). Is this often the case? In practice, this is not what prevails. There are many factors contributing to these inequalities much of which are attributable to the means of access. The existing differences and imbalance between the poor and the rich creates the problem of fair access to justice. Some have more resources to allow them more access to justice than others. Access to justice, from a sociological point of view is seen and viewed in terms of access to legal needs; legal needs for the poor. These needs emerge when certain marginalized groups of people fail to benefit from the prevailing and existing legal solutions.
Law, in its nature, is complex and this in itself acts as a barrier, preventing the poor from accessing justice. In one way or the other, so many corrupt people go unpunished; this creates a situation of mistrust of the law. Reluctance among the poor people is a common feature. They are always reluctant especially when it comes to issues involving the courts; there is a lot of stigma associated with any encounter with the law. This magnificent reluctance acts as a hindrance towards access to justice. Education is a right as well as a need yet there is a vast majority of people who are uneducated if not illiterate in Canada. Legal matters and the formalities which have to be adhered to when seeking legal justice require expert knowledge. Poor people are always with no education and it becomes exceptionally difficult to access justice without education. Lack of awareness of one's rights, freedoms and the right actions to take towards seeking justice is the greatest barrier the poor people face when we talk of access to justice.There is often need for legal representations as most legal systems do not even allow private citizens to make self representations. This calls for use of lawyers, but lawyers are expensive to hire as well as in short supply. The poor citizen is thus left in a fix, sometimes with even no option than to abandon the whole process of seeking justice CITATION Fis93 \l 2057 (Fisher, Horwitz and Thomas). Access to justice in many circumstances takes a long time. There are several factors contributing to delay of justice among which is the inadequacy of justice infrastructure and personnel. This may be cited as an undoubtedly source of lack of access to justice for the poor citizen. Justice delayed is justice withheld or denied. According to poll that was carried out by Angus Reid Public Opinion in the year 2010, a big number of adults in Canada felt disappointed with the Canadian justice system. Fifty nine percent of all the respondents strongly hold that their country (Canada) does not treat all people as equal. People are treated based on their economic status, a situation that leaves the poor at a less advantaged position.
The civil society in collaboration with NGOs plays a particularly vital role in the provision of legal advice and sensitization on legal literacy. This is all aimed at improving the decisions made for the poor through the justice system. Access to justice, legal or whatsoever can be said to be a matter of legal policy. The existence of policies that facilitate full access to justice is one of the greatest aspects of an individual's legal citizenship CITATION Fis93 \l 2057 (Fisher, Horwitz and Thomas). If citizens can have full access to justice, they reciprocate by expressing full respect to the rule of law.
Reports indicate that so many low-income Canadians find themselves imprisoned due to inability to pay fines. Young people who, for economic reasons, cannot afford legal representations for minor offences end up with being named criminals and getting criminal records. A young person with a criminal record finds terribly hard to secure any form of employment in any part of the country thus end up being condemned in poverty. The vicious circle of poverty keeps on expanding as the gap between the rich and the poor. The law is perceived as giving fair treatment to the well-off members of the society while being too harsh towards the poor majority CITATION Bon01 \l 2057 (Berry). In Canada, as it is in many other states and countries of the world if a poor citizen commits the same crime as a member of the upper-class, he or she is more likely to get arrested; if such a citizen is arrested, the likelihood of getting charged, convicted and sentenced to a jail term is higher compared to a victim from a well-to-do family. This is a clear manifestation that the law does not treat all citizens as equal. It is less likely that low income suspects will be freed on bail, even if such suspects get freed on bail they are less likely to afford and thus a considerable proportion of them are sent to prison to wait trial. Many thought that the Young Offenders Act would make judges a bit lenient on youth crimes; in contrast, this led to a considerable increase in the proportion of young offenders sent to prison and other correctional institutions.Prosecutorial ambitions are also a key obstacle that hinders fair administration of justice. Some, in fact many prosecutors, focus most on the image of their career than the...
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