Legal Theory Notes

* * * * * * * * * Positivism and Natural Law Formalism (Legalism) Realism Lawyers Critical Legal Studies (CLS) Law and Economics Theory Marxist Legal Theory Feminist Legal Theory Queer Legal Theory page 3 page 6 page 8 page 9 page 10 page 11 page 14 page 16 page 19 POSITIVISM AND NATURAL LAW Natural Law: * "A place where law and morals intersect" o Law SS? Talking of human law or laws made by humans for humans o Morals SS? Talking of something more SS? What is good/bad - a higher law o Determined by something else than human made law SS? God SS? Nature SS? Reason SS? Universal values * Ancient version of natural law can be seen in Sophocles' Antigone o Aristotle - natural world--law--universal--reason ST AUGUSTINE OF HIPPO (354--430ACE) * LEX INUSTA NON EST LEX - AN UNJUST LAW IS NOT LAW o GOOD PEOPLE FOLLOWED GOD'S LAW o HUMAN LAW WAS NEEDED FOR THE SINFUL o CLEAR HIERARCHY SS? HUMAN LAW ONLY VALID IF IT FACILITATES BEHABIOUR IN ACCORDANCE WITH GOD'S LAW SS? HUMAN LAW IN CONFLICT WITH GOD'S LAW IS NOT LAW o PAVES THE WAY FOR MEDIEVAL NOTIONS OF NATURAL LAW ST THOMAS AQUINAS (1225 - 1274 ACE) * LINKS BETWEEN GOD'S LAW AND HUMAN LAW * NATURE REASON PARTICIPATION o DIVINE REASON ENABLES READING OF NATURAL LAW * LEVELS OF LAW o ETERNAL LAW SS? LEX AETERNA SS? MIND OF GOD o DIVINE LAW SS? LEX DIVINA SS? SCRIPTURE o NATURAL LAW SS? LEX NATURA SS? PHYSICAL AND HUMAN o HUMAN LAW SS? LEX HUMANA SS? PRIMARY, SECONDARY Social Contract: * Thomas Hobbes and John Locke were the figureheads of two different interpretations of the social contract * Natural law without God * Political not theological * Three essential elements o What humans were like naturally in the 'state of nature' o Leads to social contract forming political authority o Leads to post--social contract sovereign and subject, involving natural rights * Architects of the two societies of modernity Positivism * Emerges in 18th century: Hume, Bentham, etc. * Is 'law as it is...that the law is separate from...ideas of morality' * Posited by man, not God, nature, or General Will. * Political task is separate from working out what the law is. John Austin (1790--1859) * Disciple of Jeremy Bentham, but without the utility principle - 'Command Theory'. o Must be a 'Command' - express wish backed by threat. o Must be 'General' - not particular. Must be from 'Sovereign' - 'owed habitual obedience'. * * * * * * * Thomas Hobbes (1588--1679) Leviathan Human nature o Nasty, violent, selfish and clever State of Nature o Complete liberty o Free to kill and be killed SS? War of all against all Reason o Peace better o Bargain for right to security under the social contract Given human nature, humans only keep agreements unless made to, therefore a strong man is needed to keep the peace The 'subjects' agree to be governed by the sovereign Leviathan state It is therefore natural to be ruled by the sovereign, who has authoritarian power to keep the peace AGREEMENT BETWEEN SUBJECTS NOT SUBJECTS AND CITIZENS * * * * * John Locke (1632 - 1704) Two Treatises on Government State of nature: a paradise Theory of labour and the problem of property o No rights To secure property rights, social contracts are forged o The to--be--sovereign is a party to contract Nightwatchman state Government has a more narrow purpose than Hobbes' emergency sounding 'keep the peace' o Keep property rights FORMALISM (LEGALISM) * * * * * * * * * Hard' Positivism i.e. hard distinction between what law is/ought to be. Legal problems solved through application of rules ONLY. Gives rise to lawyering as a technical skill 'learning to think like a lawyer' (robot). A lawyer's/judge's personal or political values irrelevant. Legal solutions independent of personal - should get same outcome regardless of judge. Has built in assumptions: formal legal material can apply themselves. Law independent of politics/morality/society/emotion. Works with democracy - only apply rules that have been made by legislatures. Classical examples of formalism in action: o 'Shakespeare's Merchant of Venice Portia and 'just one pound of flesh.' o Davies p151--152 and Hutchinson and the winning swimmer p154. Kennedy on Legal Education (written late 1970s): * Kennedy one of the founder of the critical legal studies movement (CLS). * Concerned with the politics of law that is hidden by formalism. For the CLS, law has political values or ideology. * Argues that law schools train students to be functional within corporate legal practice, i.e. to be able to operate in hierarchy. It does this through a variety of strategies. KENNEDY'S LEGAL STRATEGIES: Strategy One: Law as Rules * Indoctrinates formalism with emphasis on cases and rules. * Pressure to express acceptance of formalist outcomes. * Abstract concern with 'thinking like a lawyer'. * 'Hard' teachers that teach law as rules good; 'soft' teachers that fluff about with 'theory'. * Base message - that the system is OK as it is. Strategy Two: Social Context * Class: students change dress, the way that they talk and their values over the law school experience; homogenise towards upper--middle class persona. * Grades: construct competition for opportunities on the basis of grades (measures worth). * Commercial practice the ideal: emphasis on this career as the only appropriate one. Strategy Three: Hierarchical Modelling * Students learn to pander to the authority figure; not reciprocated and mutually respectful. * Status--hungry professors (I only value you if knowing you benefits my status). * Mirrors junior lawyer - partner relationship. * Outcome: makes students status driven, competitive and hierarchical. John Dewey (1859--1952) * Not a lawyer (a philosopher of sorts, influenced by Holmes). * Highly critical of abstract philosophising; believes in 'pragmatism'. * Therefore something is 'valid' if evidence from the real world supports it.

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