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Legal realism & critical legal studies .docx

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York University
Social Science
SOSC 2350
Tanja Juric

Legal realism & critical legal studies th 19 century classical legal thought  Influential view of law and its place in society  Dominant ideology of legal profession  Secular and liberal orientation (separation for church and state) o Individual rights o Individualistic people o Mutually disinterested/self-interested people o Freedom from interference o Equality o Universality o Scientific and rational Law is resilient, reliable and valid, seen as neutral in applying to everyone fairly Legal realism  Early 20 century  Response to classical legal thought  Politically progressive  Identified with growing administration  Functionalist approach Classical LT on legal reasoning  Legal reasoning is apolitical, neutral and objective  Legal political/ moral are separate  Judges do not make law, they find it (interpretation)  Formalist approach to legal reasoning  Science akin to mathematics  Producing determinative, objective, apolitical results Legal realists on legal reasoning  Law is indeterminate  Holmes “the life of the law has not been logic”  Judicial temperament, social class, values, etc. are more important in the final outcome of cases  Law is a prediction of what courts will decide  Rejected abstract rules and sought to base interpretation on reality Key tenets of LR  Legal realists are rule-skeptics  Judges don’t apply abstract rules  We get fairly consistent decisions because we all share basic ideological (lens through which we view the world) predispositions  Legal instrumentalism LR approach to legal interpretation  Functionalist  Law is not a set of ideal standards but a function of society  Law should be used to promote human improvement  Law should evolve as society evolves  Rights should be protected insofar as they promote the common good Legal realism & critical legal studies Critical legal studies  Movement officially born in 1977  Diverse group united by opposition to intellectual and political dominance of the liberal establishment  Roots in legal realism  Influenced by Marxism – inequitable political relations of power  Legal discourse a “stylized” version of political discourse  Indeterminacy is heavily conditione
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