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Author(s): 

Angelosanto Matthew

Issue Info: 
  • Year: 

    2023
  • Volume: 

    2
  • Issue: 

    3
  • Pages: 

    4-14
Measures: 
  • Citations: 

    0
  • Views: 

    21
  • Downloads: 

    9
Abstract: 

This review article explores the profound implications of legal realism on the predictability of judicial decisions, challenging the conventional notion that legal outcomes can be precisely anticipated through the application of statutes and precedents alone. Legal realism, advocating for a more nuanced understanding of the law, emphasizes the significance of external, social, and psychological factors in shaping judicial behavior. Through a comprehensive analysis of the literature, this article explores the origins and development of legal realism, its theoretical underpinnings, and the debates surrounding its contrast with legal formalism. It further examines the challenges in predicting judicial decisions, highlighting the influence of external factors, the intricacies of legal reasoning and discretion, and the inherent complexity and uncertainty of the law. The implications of legal realism extend to legal education, practice, policy, and reform, advocating for an approach that integrates practical skills, embraces interdisciplinary insights, and fosters a reflective and context-aware practice of law. The review concludes with a discussion on future directions for research and exploration within the legal realist framework, underscoring the importance of empirical studies, technological advancements, and interdisciplinary approaches in enriching our understanding of the law and promoting justice and fairness. This article contributes to the ongoing dialogue on the impact of legal realism, offering insights that are essential for scholars, practitioners, and policymakers in navigating the complexities of modern legal systems.

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Issue Info: 
  • Year: 

    2023
  • Volume: 

    10
  • Issue: 

    4
  • Pages: 

    25-48
Measures: 
  • Citations: 

    0
  • Views: 

    117
  • Downloads: 

    37
Abstract: 

Previous legal provisions cannot predict and regulate all possible future situations, and laws are composed of words that are open-textured, meaning that they are always susceptible to different interpretations. This has made the role of judges crucial in determining the content of legal rules. How is this role assessed in the fabrics of the Iranian legal system? Furthermore, what is the position of judges in lawmaking or, more precisely, what is their role in judicial legislation, and how does this position relate to the principles of public law and considerations related to the separation of powers? This descriptive-analytical research attempts to examine the conceptual framework of judicial legislation in light of the theory of "legal realism" and analyze the legitimate boundaries of judges' discretion in the production of legal rules from the perspective of public law. This analysis requires, on the one hand, the clarification of the relationship between jurisprudence and adjudication and legislation, and on the other hand, the evaluation of the relationship between the Iranian legal system and one of the modern schools of legal philosophy, namely the school of "legal realism." According to the research findings, historically, the "Mujtahid Judge" has been the authority for declaring and applying legal rules, which creates similarities between the role of judges in legal theory and the role of judges in the school of "legal realism," although currently the substitution of individual ijtihad by the will of representatives in the legislative branch has introduced a new formulation in the fundamental principles of the legal system.

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Author(s): 

Haack Susan

Issue Info: 
  • Year: 

    2023
  • Volume: 

    17
  • Issue: 

    45
  • Pages: 

    29-35
Measures: 
  • Citations: 

    0
  • Views: 

    116
  • Downloads: 

    22
Abstract: 

The method of metaphysics: Metaphysics is empirical but depends not, like the sciences, on recondite experience but on close attention to aspects of everyday experience we ordinarily scarcely notice. "Real" is a broader concept than "exists" (which applies only to particulars) and also applies to phenomena, kinds, and laws, which are real, but not, of course, existent entities. But "there are real kinds, laws, etc." doesn't imply that all the kinds and laws we believe are real, are. I call my approach "Innocent Realism" because--though it's certainly not naive--it requires attending to experience, so far as possible, without substantial preconceptions. There is one real world, enormously varied but also integrated. It includes physical stuff, kinds, laws, etc. and, here on earth, a vast array of human artifacts, physical, social, intellectual, and imaginative, all intimately interconnected. All this requires human mindedness (a better word than "mind" because it doesn't suggest that human mentality is an organ like the heart or the liver). Rather, it's a complex congeries of dispositions and abilities: to understand even such a relatively simple thing as what's involved in someone's believing something, we need to take account of the person's dispositions to behavior, verbal and otherwise; to the neurophysiological realizations of these dispositions; and to their connections to the world and to words in the person's linguistic community--this last requiring other people's words-world connection. "Virtual" reality is just one more computer artifact, clever, no doubt, but not metaphysically startling. It's oversold, but this is advertising hype, not serious metaphysics.

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Issue Info: 
  • Year: 

    2025
  • Volume: 

    42
  • Issue: 

    77
  • Pages: 

    9-28
Measures: 
  • Citations: 

    0
  • Views: 

    12
  • Downloads: 

    0
Abstract: 

IntroductionThe International Court of Justice is the main international institution dealing with disputes between States, and its main purpose is to resolve the disputes in contentious cases and answer questions from competent institutions via Advisory Opinions. The development of international law is one of the consequences of the Court's judicial work, as supported by the Court's opinions. In this process, the Court uses the two procedures of legal formalism and realism, but the adoption of each of these procedures has consequences for the process of dealing with claims and field of international law. This research attempts to examine the consequences of the Court's tendency towards each of these procedures, especially legal formalism and its effects and results. The results show that the refusal to confirm jurisdiction increasingly weakens the legitimacy and effectiveness of the Court as the best judicial institution in the world because it deprives itself of the opportunities available in the field of international legal development as it is influenced by political realities. Therefore, in order to overcome political considerations, it is necessary for the Court to be effective in the development of international law by referring to the Mavrommatis Principle and adopting a realist approach.  Research issueThe primary focus of this research is to examine the implications of formalism in the judicial process. In this regard, it is pertinent to inquire as to the extent to which the Court's shift towards formalism has resulted in the relinquishment of certain responsibilities, with the advancement of international law being a particularly salient example. From this perspective, the present study can be seen as an analysis of the Court's procedural shortcomings when viewed in comparison to alternative approaches, such as realism, the Mavrommatis Principle, and other conservative and formalistic methods.   MethodologyThis article employs a qualitative research methodology. The research method is descriptive-analytical and employs the use of library tools. The researchers have collated and examined relevant materials from documentary and legal sources, employing a scientific process to evaluate them.   Key FindingFindings of the research indicate that the refusal to confirm the competence of the Court is eroding its legitimacy and effectiveness as a leading judicial institution. This is due to a lack of opportunities for international law development and a lack of effectiveness and strength in light of the prevailing political circumstances, the slow pace of legal formalism has resulted in a lack of progress, rigidity, excessive formalism and the adoption of a cautious and politicised approach across different courts, a trend that gathered momentum particularly in the 1990s. It is therefore evident that the Court's capacity to transcend considerations and political interests in matters pertaining to jurisdiction may be enhanced through the adoption of a realism approach and a return to the Mavrommatis Principle. This, in turn, will facilitate the advancement of international law and the resolution of cases and disputes. An efficacious methodology that eschews selective intervention is thus required.   Participation In order to contribute to the knowledge of the law, or to add to the scientific and legal debates, it should be said that the research at hand presents the following results: the refusal to qualify increasingly undermines the legitimacy and effectiveness of the Court as the best judicial institution in the world, by depriving it of the opportunities existing in the field of the development of international law, as well as weakening its effectiveness and weakness in relation to political realities. Legal formalism has led to immobility, inflexibility, excessive formalism and the adoption of a cautious and politicised approach from court to court, which gained momentum especially in the 1990s. Therefore, the ability of the Court to overcome considerations and political interests in matters of jurisdiction may be possible by adopting a realist approach and returning to the Mavrommatis Principle, which in turn will be effective in the development of international law. Therefore, while criticising the formalist approach that governs the Court, we should also focus on the political work of the Court, the caution and consideration in some cases, the influence of the United Nations Security Council and inaction of the UN General Assembly. The current solution is to return to the principle of Mavrommatis, and pay attention to the realities of contemporary society and avoid consideration in the relations between States and institutions, such as the United Nations Security Council. In this way, the international credibility of the Court will be justified in the eyes of States, and the development of international law between States in their disputes and cases will be realised in a more favorable way. This research can also contribute to a better understanding of international law with regard to the role of the Court,in order to reduce this unacceptable ambiguity, the Court should decisively and comprehensively adopt a unique jurisprudential paradigm. The procedural merits of the realist approach, together with the need for the Court to play a central role in the development of international law, dictate that it explicitly abandons the doctrine of formalism and instead apply the principle of Mavrommatis wherever possible.   ConclusionFrom one perspective, the current research has focused on the pathology of the International Court of Justice in terms of its tendency towards legal formalism on the one hand, and the recommendation to return to the principle of Mavrommatis, or realism in the field of international law on the other. In short, these principles represent conservative and dynamic approaches, respectively, in the field of international law. The present study has shown that what can be considered as the roadmap of the Court as an institution for the defense of international law, its development and the peaceful and fair settlement of international disputes is the return of the Court to the principle of Mavrommatis and lack of attention to political considerations and the influence of world powersFor examples, the recent decisions, as well as the 2011 decision in Georgia against the Russian Federation represents a clear turning point in the approach of the International Court of Justice in determining the date of the dispute in assessing jurisdiction. In the Georgia decision, the Court denied jurisdiction by adopting a formalistic approach that assessed jurisdiction solely by reference to the date of the filing of the application. This approach culminated in the Marshall decision. From the point of view of international law, it seems that the recent adherence of the Court to the formalistic approach in assessing the occurrence of a dispute is worthy of reflection and comment from two aspects: First, it deprives the Court of forthcoming opportunities to fulfil one of its secondary duties, namely the development of international law, and secondly, it degrades the position of the Court as an institution that uses the formalistic mechanism on a case-by-case basis only for political reasons. Therefore, the recommendation of the current research that the Court should explicitly abandon the doctrine of formalism and apply the Mauromatis Principle wherever possible, so that it can defend the development of international law and resolve cases in an impartial manner.

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Issue Info: 
  • Year: 

    2024
  • Volume: 

    7
  • Issue: 

    25
  • Pages: 

    192-220
Measures: 
  • Citations: 

    0
  • Views: 

    44
  • Downloads: 

    0
Abstract: 

This research article examines legal discrimination against children born out of wedlock in Iran. Despite laws promoting equality, societal attitudes influenced by beliefs continue to result in discrimination. The study explores the reconciliation of religious beliefs with legal frameworks and the changes made to the Iranian legal system in response to positive human rights developments. The Article seeks to bridge the research gaps by comparing the experiences of Iranian children with those in other countries affected by Islamic law. The study employs library sources and descriptive and historical research methods to examine the legal status of children born outside of marriage, both nationally and internationally, and the discrimination they face. The Article is structured into four distinct sections: an analysis of Islamic Law, a review of the Iranian legal system, an assessment of Iran's compliance with international conventions, and a discourse on the necessity of substantial positive change. The Article ultimately recommends the eradication of discrimination through heightened awareness and the advancement of inclusivity for all children, irrespective of their lineage. In summary, this research Article aims to shed light on legal challenges faced by children born outside of marriage in Iran, with the goal of promoting positive changes in their treatment.

Yearly Impact: مرکز اطلاعات علمی Scientific Information Database (SID) - Trusted Source for Research and Academic Resources

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Issue Info: 
  • Year: 

    2015
  • Volume: 

    7
  • Issue: 

    1
  • Pages: 

    88-101
Measures: 
  • Citations: 

    0
  • Views: 

    1521
  • Downloads: 

    0
Abstract: 

Background: From yesterday till now, people helped to Iranian Red Crescent society (former Red lion and sun society of Iran) in form of endowment. Endowment in opinion of absolute law was not desirable because it may cause many problems for Red Crescent society for examples: difficulty in changing the goals of endowment or continuation of authority and ownership of property dedicated. On the contrary, in opinion of legal realism and public law, endowment has superiority over settlement and donation, because of the control of endower continued until the end of endowed property. In fact, people supervision on government is accomplished in Red Crescent society. Also, other advantages of endowment are equal to settlement and donation. Finally, it should be said that endowment is better than settlement and donation in Red Crescent society in view of legal realism and public law.

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Journal: 

METAPHYSICS

Issue Info: 
  • Year: 

    2014
  • Volume: 

    49
  • Issue: 

    16
  • Pages: 

    1-33
Measures: 
  • Citations: 

    0
  • Views: 

    1155
  • Downloads: 

    0
Abstract: 

Hilary Putnam, who was once one of the representatives and proponents of scientific and metaphysical realism, became an unrelenting opponent of metaphysical realism during the mid-70s. Having argued against alethic and ontological dimensions of metaphysical realism, he proposed “internal realism” as an alternative to it. Putnam’s major objection to the alethic dimension of metaphysical realism was that this philosophy brings about an unbridgeable gap between the truth of a proposition and our epistemic justifications for it. As to the ontological dimension of metaphysical realism, he proposed the criticism to the effect that according to this philosophical position the world consists of “readymade” objects. Putnam poses these criticisms because, as he argues, firstly, truth cannot be considered anything but the ideal justification; and secondly, the world is not made of ready-made objects, but rather it is we that cut up the world into different objects when we take a conceptual scheme. Indeed, according to Putnam assuming any “external perspective”, whether about truth or about ontology, is meaningless. Having introduced and reviewed Putnam’s arguments in rejecting metaphysical realism, this article explains and examines the basic elements of internal realism. The results of this article show that Putnam’s objections against metaphysical realism lack the necessary credibility and strength; and at the same time his proposed alternative (internal realism) has serious problems that made to be addressed. By his chosen conception of truth, internal realism, cannot touch its stated purpose; i.e. the removal of a huge gap between the truth of a statement and our knowledge of it. The ontological claims of internal realism are not, indeed, the reliable and true consequences of the thesis of conceptual relativity, which is considered as Putnam’s main base in this regard, but rather it is more a consequence of mistaking the linguistic issues with ontological ones.

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Title: 
Author(s): 

MOTAMEDI AZARI P.

Issue Info: 
  • Year: 

    2005
  • Volume: 

    -
  • Issue: 

    23
  • Pages: 

    79-92
Measures: 
  • Citations: 

    0
  • Views: 

    1767
  • Downloads: 

    0
Abstract: 

In modem literature, the condition of mankind is depicted using elements such as abnormality and folly. Realism, which tries to depict reality, is the literature of modem era in contemporary times. Realism is not only a style among other literary schools, but it is also the rudiment of literature, for other literary styles, particulary in recent centuries, have originated from reality or is conspicuously related to it. One can clearly witness this aspect of realism in the works of Franz Kafka, Thomas Mann and Bertold Brecht. Therefore, regarding authors ideology and choice of styles in their works, they are in and/or should deal with a very crucial and grave condition.

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Journal: 

MA`RIFAT FALSAFI

Issue Info: 
  • Year: 

    2019
  • Volume: 

    16
  • Issue: 

    2 (62)
  • Pages: 

    53-77
Measures: 
  • Citations: 

    0
  • Views: 

    449
  • Downloads: 

    0
Abstract: 

Among the most basic discussions in epistemology are those related to ideas and concepts. In the present writing, we are trying to find out the features of theoretical concepts or terms as well as observational concepts. We are to find out whether the theoretical concepts are true concepts in principle or untrue ones like fairy tales and monsters or conventional concepts. In other words, must we choose realism or unrealism in the realm of theoretical concepts? What about the realm of observational concepts? And finally, what is the status of such concepts in the classification system of concepts and ideas? Undoubtedly, this discussion is among the most important and most basic epistemological discussions in the realm of concepts and ideas, through which the scientific propositions, laws and theories are organized. In the present study, we explore such a difficulty and pursue the related solution.

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Author(s): 

SABRAMIZ A. | DABAGH S.

Journal: 

METAPHYSICS

Issue Info: 
  • Year: 

    2011
  • Volume: 

    47
  • Issue: 

    9-10
  • Pages: 

    77-94
Measures: 
  • Citations: 

    0
  • Views: 

    1302
  • Downloads: 

    0
Abstract: 

By emphasis on cognitive aspect of moral realism, this article surveys various divisions in moral realism and anti-realism and, regarding later Wittgenstein's courses, it explores his views about this matter. Thus, after a short description of Wittgenstein’s courses in Philosophical Investigations which are related to this topic, ideas of his commentators in this area are studied. Since moral realism has a firm relation with cognitive and non-cognitive discussion in meta-moral, thus later Wittgenstein’s view about this topic is also investigated. At the end, it is shown that calling Wittgenstein a realist or anti-realist is due to the wrong usage of reality grammar and he cannot be categorized as such.

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