Paradigm of legal pluralism in the interpretation of legal realism

Abstract

The research is aimed at studying the concept of legal pluralism, which is currently under formation. Legal science is devepoling a traditional approach to legal pluralism, which originates from anthropological-legal theories, however, it seems that the phenomenon of legal pluralism is complex and multifaceted, which requires a comprehensive analysis of its origins, as well as the study of those socio-legal theories that will reveal its content most fully. The purpose of this study is to identify the importance of the concept of legal realism as a theoretical ground for the formation of ideas about legal pluralism. To achieve the goal of the study were used in a complex of general scientific methods, with the functional approach to the understanding of law, which allows us to identify practically useful properties of law and legal phenomena, which include legal pluralism. In the course of the conducted research, the following results were achieved and the following conclusions were drawn: 1. Legal realism became one of the theoretical foundations for the development of the idea of legal pluralism. In particulary, it was promoted by the anthropological and realistic theory of K. Llewellyn, who together with A. Hobel studied the process of formation of legal rules among Indians through the conflicts arising in the society. 2. It cannot be argued that the realists formulated their approach on the basis of the recognition of the existence, along with the state, of some other law. As practicing lawyers, they built their theories within the framework of positive law, which has such characteristics as formal certainty, authorization by the state, and the provision of state coercion. 3. Both legal realism and legal pluralism have a common philosophical foundation - this is pragmatism. Relying on the ideology of practical utility, proponents of legal realism tried to understand the functional essence of law, to understand the causes of uncertainty of law. 4. K. Llewellyn believed that legal pluralism should be perceived in the process of law enforcement, as well as judicial lawmaking. The existence of the same rule of law in practice can lead to different variations in its implementation. One of the reasons for this is the approach to the interpretation of the rule of law, and the other is the way the rule is formulated in the judicial precedent in the process of judicial lawmaking. In order to unambiguously and definitively apply a rule of law, the judge must reflect all the circumstances of the case in as much detail as possible. This will eliminate legal pluralism and ensure certainty of law.