LWSO 201 Lecture Notes - Legal Realism, Legal Positivism

42 views2 pages
Published on 19 Apr 2013
School
University of Calgary
Department
Law and Society
Course
LWSO 201
Legal Realism
1) Legal Realism
a) Incorporates human agency that legal positivism marginalized or failed to take
into account
Human emotions and experiences play a key role in law.
Law is part of a larger social construct.
Law is one of many social constructs and they are always changing
b) Law is not an object to be empirically studied, nor is it about universal truths
Laws is implemented through people
c) Functionalist approach – look at both purpose and effect of the law
what law strives to achieve, how it fail and its purpose.
d) Sceptical about centrality of rules and about determinacy of the law
if you take the rule and apply it to facts you will determine the specific
answer.
e) Sceptical that judicial reasoning is neutral; views it as a judgment and value laden
activity
sceptical of the centrality of the rule
sceptical that judges are leaving there personal opinions to the court.
legal realist believe that the outcome of the legal dispute will vary
according to the political, cultural, economic views of the judge.
law is flexible
subjectivity of the law. e.g. assisted suicide, abortion.
law is flexible
f) Interdisciplinary
.
2) Oliver Wendall Holmes
"The life of the law has not been logic it has been experienced"
a) Law is a predictive exercise
b) Rights and duties are also predictions: A duty is a prediction that if a person does
or refrains from doing a certain thing, he will be made to suffer in a certain way
by the courts. Similarly with a right.
Unlock document

This preview shows half of the first page of the document.
Unlock all 2 pages and 3 million more documents.

Already have an account? Log in

Get OneClass Grade+

Unlimited access to all notes and study guides.

YearlyMost Popular
75% OFF
$9.98/m
Monthly
$39.98/m
Single doc
$39.98

or

You will be charged $119.76 upfront and auto renewed at the end of each cycle. You may cancel anytime under Payment Settings. For more information, see our Terms and Privacy.
Payments are encrypted using 256-bit SSL. Powered by Stripe.