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Critical Race Theory January 10, 2014.docx

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University of Ottawa
Kenneth Campbell

Critical Race Theory (Canadian) Liberal Legalism • method of analysis that emphasized the rule of law, formalism, neutrality, abstraction and individual rights o response to another more traditional form of theorizing about legality and law • allowed theorists to analyze concepts such as liberty, poverty, and rights with an emphasis on dispassionate discourse o notion that rights apply to everyone the same way o jurisprudence dictate policy • Critical Legal Studies (CLS) emerged in the 1970s in the US - as a response and critique to liberal legalism o focused on how rights don't apply the same way to everyone o race and position affect how the law is applied to individuals • ex. disconnect between aboriginal population in total and aboriginal population in provincial jails The Rule of Law and CLS Critique • rule of law - law applies without distinction in their application to particular groups • CL theorists insist that this allows the powerful to oppress the powerless and maintain existing political, social and economic advantages • CLT see legal analysis as bound up with political and moral choices in a pluralistic society Formalism, Neutrality, Abstraction and the CLS Critique • formalism (legal analysis) - from a liberal point of view is based on the premise that legal rules can be applied in a logical manner • CLT - argue that the law contains too many contradictions to be able to "produce" determinant results and all the law is political o dominant groups control the concept of "good" o most judges emerge from the dominant group in society and bring their own cultural/political biases Individual Rights and the CLS Critique • legal liberalism - places great emphasis on individual rights o we have a very fair and expansive constitution • CLT - criticize the notion that the function of law is to facilitate a "neutral" outcome • doctrine of rights analysis
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