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LAWS 1000-B Sept28th .doc

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Carleton University
LAWS 1000
Steve Tasson

LAWS 1000-B Wednesday September 28 2011h How We Know The Law Part 2 Information to note on theories • When did was did this perspective emerge and why? • Who are some theorists associated with the perspective? • What are the advantages/strengths of this perspective on law? • What are the possible limits/weaknesses? • What is the main question this perspective asks in relation to law? Natural Law  Origins- Ancient Greece  “above” man-made law  lex iniusta non est lex - appeal to “justice”  Universal law that pre-exists humanity - God-given law determined through human reason (Aquinas)  ‘Content’more important than ‘form’  Advantages: law must have some moral content. Provides criteria “outside” law to challenge law  Weaknesses: Which morality is the morality that should inform law?  Relatively less stable and predictable (than pos law)  long tradition  Universal  Appeal to justice – Appeal to natural law  Makes law have to conform to important rules of justice  Doesn't provide a stable definition of what law should be Natural Law today? • Cotterrell- natural law “virtually dead” • law cannot be based on absolutes rather must provide a framework for disputes (must be adjustable) • Instrument of compromise between interests within a fractured nation states • Shift from “what is moral” to “what works” • However, elements of Natural Law still alive and well • US Constitution, Canadian Charter of Rights and Freedoms, UN Declaration of Human Rights, etc  No one can really agree what humans ought to be like; Main Question: Is this law morally defensible? Legal Positivism  Goal of law is to promote predictability, calculability and stability of social relations (Law as a Science)  Laws are historically &socially contingent (Montesquieu & Maine)  Valid Law = Valid Process  Commands of the Sovereign  Not interested in the morality of a law (Law does not = Morality)  Law as a “machine” or “formula”; you can drop something one end, and pop out the other end and it will stay the same; procedure in place; what comes out at the end is a good law  'Form' more important than 'content'; Legal process is on it's own More Positivism  Doctrine of Parliamentary Supremacy  AV Dicey; “Parliament...has... the right to make or unmake any law whatever; and further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament”  Often famously summed up by member of the British House of Lords who said; “Parliament can do anything but make a man a woman and a woman a man” Even more Positivism • Idea of the Social Contract essential; establishes stability; when parliament speaks, we're all speaking (they speak for us)  Parliament is always supreme • Different versions of Legal Positivism (self-ref) • Advantages: predictability, calculability • Weaknesses: immoral law may still be valid law (eg.Apartheid Laws) • Very conservative approach to law • Main Question: “Has this law gone through a valid process?” Legal Realism • Emerges predominantly in US in 1920-30s → response to legal positivisms claim that law autonomous from pol. • Neither Legal Pos or Nat law because it is not asking about the validity of law; how do we understand law?  To know the law you have to look at statutes, what proper procedures  Legal Realism said that, that wasn't enough, you need to look at the way law is interpreted. • Argued we need to study the context in which law emerges and is applied • Law “on the books”(THE LAW) vs “law in practice” (“Gap Studies”) (What the law said it was going to be about, and how it actually works) • Law not apolitical → made by (& admin by) people to address soc and econ issues of the day (pol); not neutral; doesn't work the same for everybody; has politcal motivations that drive it. • Homes Jr. “judges make law rather than find it” - Law is what the judges say it is (they must know context); judges interpret • “a trial could depend on what the judge had for breakfast” More Legal Realism • Cannot understand the law - what it is - without understanding what it did, where it came from and who administered it (affects) • Advantages: non-idealized law;more complicated, the way law works in practice, if you want to understand what the law is, you must look at the relationships, better reflects the reality that law exists within a web of relations which are often messy and most often far from ideal, see connection between law and politics; law is a tool for politics • Weaknesses: because it was more a ‘method’→ no coherent vision of what the law ought to be. Doesn't give a clear indication of what should be done. Legal Realism • by trying to remain essentially neutral legal realists did not challenge any of the fundamental assumptions of law but aimed to point out the weaknesses of the positivist certainty in the “insularity of law”  Why & how it operates? • Main Question: “What is the social, political and economic context of the law and how does this effect its daily operation?” MarxistApproaches • Firmly rooted in “Conflict Perspective”; law is divided, law is a weapon used for the fight within the society • Societies are divided along class lines • Bourgeoisie (Upper class, owners) vs. Proletariat (lower class, workers) • Economic laws of history; laws that are fundamentally undeniable for Marxist/ Dialectical materialism; all our relationships in society are determined by the fundamental economic relationship; based on material conditions • Laws a reflection of economic conditions; the dominant class uses law to subordinate the subordinate class • “Your jurisprudence is but the will of your class made into law for all” • Capitalism is internally contradictory system which is destined to fail resulting in Communism (last stage of hist); • State, and law, will simply “whither away” - there will be no need for coercion after the Revolution More Marxism • Law = tool of the bourgeoisie to maintain dominance • This is primarily done in two ways: • Force (Coercion) • Ideology (Consent) • Advantages: 1) Recognizes inequalities in society, recognizes these are often a result of an unequal distribution of resources 2) law has symbolic power (equality, freedom, etc) • Disadvantages: inequality limited to economic inequality, law only ever a tool of oppression and maintain inequality  His solution is to “rise up”  For Marxist it's divided it is all about economics*  Doesn't give law any chance to change for the better • Main question: “How does law or a specific set of laws maintain current economic and class inequality?” Critical Legal Studies (CLS) • Emerges in 1970s • Mainly “left” academics (roots in Marxism); come out of a variety of US law schools • Critical of mainstream legal field and “doctrinal approach to law” (particularly legal education) • law was being used as a tool of elites(dominants) → any theory of law that excluded particular groups or interests was ignoring reality • Cross between Marxist and Legal Realists • Explicitly political! • Kellman- the purpose of CLS is to reveal the fundamental illusions on which the legal system is built and maintained More on CLS • Show law’s indeterminacy; space of openness; don't know how the law is going to operate when it encounters a new thing (cannot cover all sit) • Highly controversial mvt → “corrupting students”& cynical • Advantages: beyond context - looks to assumptions on which law is based, challenges status quo • Weaknesses: no consistent direction as
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