45-214 Lecture Notes - Lecture 1: Critical Legal Studies, David Easton, Legal Realism
SchoolUniversity of Windsor
Course CodePOLS 2140
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September 14, 2015
What is Politics?
Deciding who gets what, when and how. - Harold Laswell
The authoritative allocation of values. - David Easton
What is the Law?
“the system of rules which a particular country or community recognizes as regulating the actions of its
members and which it may enforce by the imposition of penalties”
The Rule of Law
•Rulers must obey the law
•Rules are known ahead of time
•Law is equally applied (regardless of power, wealth, etc.)
•Disputes are adjudicated by an impartial arbiter
Theories of the Law
•Theories of the law address what is or what should be the nature and function of the law
•Many theories of the law were developed over time:
◦Natural Law Theory
◦Critical Legal Studies
Natural Law Theory
•Law given by the sovereign should conform to a higher set of moral principles
•an “unjust law is no law at all” - St. Augustine
•Valid Law is the command of the sovereign law giver, backed by sanctions imposed by the
•Draws line between law and morality
•Draws line between law and politics
•Critique of Legal Positivism and Natural Law Theory
•Law is influenced by politics, socio-economic context, and the attitudes of individual judges
•“The life of the law has not been logic, but experience” - Oliver Wendell Holmes
Critical Legal Studies
•Sub-category of Legal Realism emphasizing that law and courts favour socio-economic elites in
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Systems of Law
•States: UK, Canada, US and other former British colonies
•Sources of Law: Judicial decisions, legislation, and constitutions
•Legal reasoning: Finding legal principles from previous examples (using precedent)
•States: Continental Europe, Asia, Quebec, and Scotland partly
•Sources of Law: Written codes, legislation, and constitutions
•Legal reasoning: Deductively applying principles in code to the dispute before the court
Categories of Law
•Rules that govern relationships and disputes between individuals/business
◦Tort (Responsabilite Civile)
•Rules that govern relationships and disputes with a “public” dimension
How to Resolve Disputes?
•Courts are one particular method of resolving disputes (quite coercive);
•Courts adjudicate disputes by applying law to the facts of the disputes
Problems with Dispute Solving
•Judges are neutral adjudicators of disputes applying law to facts is more complicated than first
◦Role of the judge (adjudicator vs mediator)
◦Fact finding (determining “truth” and “historical” facts vs. “social” facts)
◦Rule interpreters or rule makers?
◦What is a “dispute”?
◦Standing, mootness, intervenors, “political questions”
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