The contextual approach refers to the social, political and economic circumstances that they wanted judges to take into consideration Legal indeterminacy for the Progressive Realists: every rule or principle there was potentially an equally valid, counter-rule or counter-principle Answers to legal problems did not automatically follow from the concepts or rules If judges could recognise their freedom of choice they would be better to accommodate the social realities and needs at the time Judges should therefore concentrate on social interests and rid themselves of the conservatism of positivism Judges should realise that they were making policy in much the same way as the legislator did This realisation would enable them to make better policy choices The Progressives tried to base realism in modern social sciences Was widely accepted and became the “official” version of Realism What influenced the Realists? The Realists were influenced by legal positivism + existentialism + marxism Positivism is an insistence on seeing law as a science and insisting that court decisions must be based on the law and not on outside considerations (morals, policy or opinion) Marxism a very modernist idea seeks to explain history as the continuing class struggle between the “haves” and the “have nots” They want the class struggle to end and establish a classless society Rise of marxism worldwide led to the recognition of workers’ rights and an awareness of power imbalances in society Existentialists believed who and what you are is not determined at birth You determine your own destiny and purpose by making free choices every day and accepting the consequences Very close to the Buddhist idea of karma (your actions will determine your life) These ideas all concerned with the rejection of metaphysics, the advancement of rights, liberty and choice and the awareness of societal problems The South African context and realism Fairly obvious that Realism was and is extremely important in the American context In the post-Apartheid situation that the Realist critique seems to be most relevant South Africa seems to be going through the same kind of social change as America did at the time of the Realists There is also an attempt to establish a kind of social welfare system and to enforce rights
The contextual approach refers to the social, political and economic circumstances that they wanted judges to take into consideration Legal indeterminacy for the Progressive Realists: every rule or principle there was potentially an equally valid, counter-rule or counter-principle Answers to legal problems did not automatically follow from the concepts or rules If judges could recognise their freedom of choice they would be better to accommodate the social realities and needs at the time Judges should therefore concentrate on social interests and rid themselves of the conservatism of positivism Judges should realise that they were making policy in much the same way as the legislator did This realisation would enable them to make better policy choices The Progressives tried to base realism in modern social sciences Was widely accepted and became the “official” version of Realism What influenced the Realists? The Realists were influenced by legal positivism + existentialism + marxism Positivism is an insistence on seeing law as a science and insisting that court decisions must be based on the law and not on outside considerations (morals, policy or opinion) Marxism a very modernist idea seeks to explain history as the continuing class struggle between the “haves” and the “have nots” They want the class struggle to end and establish a classless society Rise of marxism worldwide led to the recognition of workers’ rights and an awareness of power imbalances in society Existentialists believed who and what you are is not determined at birth You determine your own destiny and purpose by making free choices every day and accepting the consequences Very close to the Buddhist idea of karma (your actions will determine your life) These ideas all concerned with the rejection of metaphysics, the advancement of rights, liberty and choice and the awareness of societal problems The South African context and realism Fairly obvious that Realism was and is extremely important in the American context In the post-Apartheid situation that the Realist critique seems to be most relevant South Africa seems to be going through the same kind of social change as America did at the time of the Realists There is also an attempt to establish a kind of social welfare system and to enforce rights