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Lecture 1

45-214 Lecture Notes - Lecture 1: Critical Legal Studies, David Easton, Legal Realism


Department
Political Science
Course Code
POLS 2140
Professor
Emmanuelle Richez
Lecture
1

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September 14, 2015
Introduction
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
Legal Positivism
Legal Realism
Critical Legal Studies
Etc.
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
Legal Positivism
Valid Law is the command of the sovereign law giver, backed by sanctions imposed by the
sovereign
Draws line between law and morality
Draws line between law and politics
Realism
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
society

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Systems of Law
Common 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)
Civil Law
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
Private (Civil)
Rules that govern relationships and disputes between individuals/business
Examples:
Tort (Responsabilite Civile)
Contract
Family Law
Property Law
Public
Rules that govern relationships and disputes with a “public” dimension
Examples:
Administrative Law
Criminal Law
Constitutional Law
Tax Law
Judicial Process
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
appears:
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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