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Legal Theory Notes

Law Notes > Legal Theory Notes

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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.

o 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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