Law and Society
Week 9 Lecture 10
C(lassical) LT on Legal Reasoning:
• Legal reasoning is apolitical, neutral and objective
• Legal and political/moral are separate
• Judges do not make law, they find it
• Advocated “formalist” approach to legal reasoning
• Logical application of abstract formal rules of legal interpretation
• Though to produce determinate, objective, apolitical results
Legal Realists on Legal Reasoning:
• Law is indeterminate: there isn’t this direct application of the law
• O.W Holmes says that “the life of the law has not been logic”
• Judicial temperament, social class, values, etc., are more important in the final outcome of cases
• Holmes was very skeptical of the model of law being the application of rules
• “Law is a prediction of what courts will decide”
• Realists rejected abstract rules and sought to base interpretation on “reality”
Overview of Key Tenets of Legal Realist:
• Legal realists are ruleskeptics
• The law is grossly indeterminate (most cases could go either way)
• Judges don’t appeal to abstract “rules”, they are human beings after all, as human beings they are not
regurgitating the law.
• They decide based on how the facts of the case strike them (i.e: ideological predilections)
• We get fairly consistent decisions because we all share basic ideological predispositions.
▯Legal realists acknowledge that there is consistency in upholding the law, however, they do not see
universal facts embedded in the law, instead they see that we share a cultural condition.
▯Consistency does exist, but because we respect that law has a need and a function event if it is by
• Legal Instrumentalism
Ideology: is the lens which we view the world.
Legal Realism: Approach to legal Interpretation (Functionalist Approach)
• Proposed functionalist approach to legal interpretation
• Law 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 respected insofar as they promote the common good.
▯As a way of promoting and recognizing the common good.
Critical Legal Studies: Overview
• Movement “officially” born in 1977
• Diverse group united by opposition to intellectual and political dominance of the liberal establishment. • Roots in “legal realism” movement of early 1900s
▯(I.E: the skepticism of formalist approaches to law)
• Also influenced by Marxism
▯(i.e: the belief that the legal system was linked to the inequitable political relations of power)
• Legal discourse a “stylized” version of political discourse.
▯Legal discourse and a critique of legal discourse provide that same potential where the power balance
Critical Legal Studies Overview: Cont’d
• Indeterminacy (e.g. judicial decision making) is heavily conditioned and shaped by a pervasive
ideology (system of beliefs that appear ‘natural’).
• “Legal consciousness” persuades rulers and ruled that the judicial process results in impartial
decisions. But the legal process is politics in another form.
• “Law is simply politics dressed in different garb; it neither operates in a historical vacuum nor does
it exist independently of ideological struggles in society.” (284)
• Doctrines of jurisprudence are constantly being reinvented because all of them are fictions.
▯notions that laws are eternal can’t be true because we know that woman having the right to vote
changed because the view of woman changed in society.
Realism vs. Critical Legal Studies:
• CLS starts with a criticism of liberalism:
▯liberalism presumes that people are economically and socially independent
• CLS demonstrates that this is a lie!
CLS differs from legal realism:
• Realists firmly committed to liberalism
• Law can be used as a tool for human improvement
• Equality through institutional access
• Improve legal system by assisting lawyers and students to understand how the law really works “in
practice” ensures that everyone gets equal access in society.
Realism vs. CLS (cont;d)
• Instead of seeing law as determined by rules and principles