During a recent visit to Bangladesh, I conducted interviews for a specific purpose. One case of interest was the prolonged legal proceedings surrounding the Rana Plaza tragedy, which began on 24 April 2013. While the Apex court recently instructed the trial court to expedite proceedings and deliver a judgment within six months, only 69 out of 594 witnesses have been examined as of March 2024, raising concerns about the efficiency of the justice system.

The case was initiated under multiple sections of the Penal Code 1860, including section 304A, which addresses negligence leading to death and carries a maximum penalty of five years' imprisonment or a fine, or both. However, the primary accused, Sohel Rana, has already been in custody for about 11 years, prompting speculation about potential charges being escalated to section 302, which deals with murder and carries harsher penalties.

In interviews with prosecution and defence lawyers, differing views have emerged. The prosecution expressed confidence in establishing the facts and emphasised the court's role in setting a precedent for workplace safety. Besides the penal statute, they expect external factors, such as social impact, to influence the court's decision.

In contrast, the defence contended that the incident did not satisfy the ingredients for murder under section 302, characterising it as an unavoidable accident. They highlighted legal ambiguities and the absence of precedent for similar cases in Bangladesh. Drawing from the contrasting viewpoints of the prosecution and defence, this article aims to delve into two prominent legal theories, legal realism and legal formalism, shedding light on their differing perspectives on the interpretation of laws. Through an exploration of their fundamental principles and relevant examples, it seeks to clarify the distinctions between these approaches.

Legal realism posits that the law cannot be divorced from the social, political, and economic contexts in which it operates. Proponents argue that judges do not make decisions based solely on legal rules and principles but are influenced by various external factors such as personal beliefs, social norms, and policy considerations. The formula looks like this: [legal rules + external factors] = decision. In essence, legal realism contends that law is not a rigid set of rules, but rather a flexible instrument shaped by human judgment and societal forces.

One of the key figures associated with legal realism is Oliver Wendell Holmes Jr., who famously remarked in his dissenting opinion in Lochner v New York (1905) that "the life of the law has not been logic; it has been experience." This statement encapsulates the essence of legal realism, emphasising the importance of pragmatic considerations over abstract legal reasoning. An example that illustrates legal realism in action is the case of Brown v Board of Education of Topeka (1954). In this landmark decision, the US Supreme Court ruled that racial segregation in public schools was unconstitutional. While legal principles such as the Equal Protection Clause of the Fourteenth Amendment were cited, the decision was heavily influenced by societal changes, including the civil rights movement and shifting attitudes towards race relations. Legal realists would argue that the Court's decision was not merely a result of legal analysis but also reflected broader social and political dynamics.

When addressing the Rana Plaza issue, if judges encounter dearth of specific legal statutes or precedents to guide decision-making or when interpreting ambiguous statutes, they ought to employ ingenuous legal principles and methodologies.

In contrast to legal realism, legal formalism adheres to the belief that law can and should be applied objectively, based solely on the text of legal statutes and precedents. Proponents of legal formalism argue that judges should interpret and apply the law without regard to extraneous factors such as personal beliefs or societal consequences. The formula looks like this: [legal text + legal precedents] = decision. According to this perspective, judges uphold the rule of law by faithfully applying legal rules and principles in a consistent manner.

One of the leading advocates of legal formalism was the late US Supreme Court Justice Antonin Scalia, who championed the doctrine of textualism – the idea that the meaning of a legal text should be derived from its plain language and original intent. Scalia believed that judges should refrain from injecting their own policy preferences into their decisions and instead focus on interpreting the law as written. An example of legal formalism in action can be found in the case of District of Columbia v Heller (2008). In this case, the Supreme Court held that the Second Amendment protects an individual's right to possess a firearm for self-defence. The majority opinion, authored by Justice Scalia, relied heavily on the text of the Second Amendment and historical analysis of its original meaning. Legal formalists would argue that the Court's decision was guided by strict adherence to legal principles rather than considerations of public policy or social context.

When addressing the Rana Plaza issue, if judges encounter dearth of specific legal statutes or precedents to guide decision-making or when interpreting ambiguous statutes, they ought to employ ingenuous legal principles and methodologies. Typically, judges do combine such approaches, considering multiple factors to reach a reasoned decision in the absence of specific legal statutes or precedents. The goal is to achieve a fair and just outcome that aligns with legal principles and serves the broader interests of society.

The writer is PhD candidate, Department of Business Law & Taxation, Monash University, Australia.