POLS 3651/ MIST 3651
November 2 , 2013
Lecture 7 – Week 9
Theories of Jurisprudence – Political Economy of Law
Notes before lecture:
• Visible minority: was recognized in Canada in the Employment equity act. This term refers to all people
of color. The UN told Canada that this term was in fact offensive and discriminating.
What is law?
1) A set of rules intended to govern behavior?
To govern behavior in whose interest?
2) What makes law legitimate in a democracy?
Could we understand law from a purely linguistic perspective?
Laws need to be codified in order to be legitimate.
One source of legitimate is moving from the law to institutions in the society and how power is produced and
The Role of Law:
▯In the law and development movement, the role of law was to empower the state, historically
▯Legal systems have nothing to do with the economic growth or promotion of social economic equality, they
are not concerned with the economic equality.
▯When you look at the origin of this empowerment, it was assumed that the private markets were too weak to
ensure growth. So the estate needed to play a commanding role in the economy.
▯The legal system laws were created to assign the government, the kind of power needed to achieve this
▯There is a shift from the legal system empowering the state through regulations, acts and different laws to…
empowering market forces, from regulating the state to the deregulation.
▯Post World War 2 era is the reemergence of the state as the main force in society.
Schools of Jurisprudence or Theories of Law: (Main Stream)
• Judicial Positivism (John Austin, A.V. Dicey, H.L.A. Hart) – Manmade
▯The only law that exists is the written law
▯I.E: good judges can always interpret the positive law correctly, there is no room for mistakes.
▯If there is anything wrong with the law it is the judge’s fault. Because GOOD judges can always
interpret the law correctly.
▯Main focus is not on justice
• Natural Law (Thomas Aquinas, John Locke)
▯These are “higher” laws that positive law ought to emulate
▯These laws might be created by logic or ethical principles.
▯In Natural law is to bring about justice.
• Judicial Realism (Karl Llewellyn)
▯Neither focused on the objective of the law or who is making law.
▯Argument: If you want to understand the law, you should look into how the law in practice is
▯What makes judges decide the way they do? Law as practiced. ▯This way, even if judges are impartial, the law is NEVER clear.
• Normative Jurisprudence: (Idealistic)
▯What is the goal or purpose of law?
▯The law should produce the best consequences for the majority of people.
▯Utilitarianism: producing the best consequences.
Feminism and Law:
• Law has been instrumental in women’s historical subordination
• There is this common understanding hat subordination of woman in societies has been to a large extent
theorize and enforced by law and legal institutions. The law has been in the interest of men and they
have been in the business of la making to legitimize and enforce their visions of society and to
implement it in society.
Main Approaches to Feminist Legal Theory:
• Liberal Approach: Subscribe to general liberal ideas.
▯Focused on gender differences
▯The law should be used to advance woman’s equality in society, hey believed that the law has the
capacity to do so. However, the question is not the lack of capacity of the law, the issue is the true value,
norms in society is not reflected in the organization of society.
• Critical Feminist Legal Theory:
▯Mainly focused on the liberal system, because they believe that the liberal legal system is the
instrumental woman domination
▯They argue that in this context, the liberal legal system, race, class and sexual orientation and other
access of subordination interplay with gender.
▯Gender issues are influenced and shaped by race, class, sexual orientation and other acts of
subordination… and this is the problem with the liberal society.
• Postmodern approach:
▯Concerned with gender. More concerne