• Research/Scholar Paper name – A Propinquity: American Realist School and Transformative Constituitionalism
  • Author: Kajal Priya
  • Institution: National University of Study and Research in Law, Ranchi
  • Affiliation: Centre for Study of Contemporary Legal Issues
  • Date of Publication: 04/10/2021

Abstract:

The American Realist school distinguished “law as it is” and “law as it ought to be”. The school emphasized the law as it is by looking beyond the working of the court. The word transformative is difficult to define as it is subjected to time. The article seeks to map the journey and significance of the realist school and the recent trend of transformative constitutionalism. Giving this article a different dimension the relationship between realist school and transformative constitutionalism is highlighted. The article covers the realist school and its theme of fact-finding. It entails that the lawyers and judges should evaluate the facts of every case considering changing social conditions. This is related to transformative constitutionalism. This article provides an overview of realist school themes, the application of fact-finding, and the incorporation of transformative constitutionalism by emphasizing cases. The trace of this concept can also be observed from A.K Gopalan to Maneka Gandhi case, Shankari Prasad to Keshvananda Bharti decision, NALSA judgments, Kharak Singh to (retd.) K.S Puttawami instance. Our Constitution, like the law of society, is a living organism. It is based on social conditions that never remain static. The importance of the article lies in the fact that there are several factors depending on which decisions are pronounced. According to this school, some of these are family, friends, vocations, schools, religion, all these factors are influential. This necessitates transformative constitutionalism. If not, the law will frustrate its purpose. The study concludes that law should keep pace with time and transformative constitutionalism backs this premise. It is even more significant for the proper functioning of the court. This comprehends the purpose of the constitution and the welfare of its people. Sometimes, a change in the law is the need to reflect social change.

A Propinquity: American Realist School and Transformative Constituitionalism

Leave a Reply

Your email address will not be published. Required fields are marked *