Contemporary legal theories and theorists

1. Contemporary legal theories and theorists

2. LEGAL FORMALISM • Laws are looked at and treated as if they are science or math formulas. • Law consists of rules created by the state and that is all. • Therefore the only role of the judge is to enforce/ apply the law- not to interpret or use their own discretion in dealing with cases. • The LAW IS THE LAW. • New cases should use the scientific application of legal precedent- the judge should have no involvement- they should hold a position of disinterest and be remote during a trial. • Legal formalism was used throughout N. America and Britain. In Canada it was used until the Charter of Rights and Freedoms was entrenched in the constitution in 1982.

3. LEGAL REALISM • In opposition to legal formalism. • Law is uncertain and vague and therefore the judge as a person and personal views do play a role. • Realists put forth that judges are the true writers of the law- as they interpret and apply their interpretations in each case- therefore it is not the parliament but the courts that make law. • “precedents are an illusion”- there is no science behind them. Judges shape precedent to support their conclusions.

4. CRITICAL LEGAL STUDIES • CLS- states that “law is not neutral or value free” but it is about “value choices”. • Law is to support the interests of the people – specifically the people in power. • The danger of this is that it can lead to oppression and a lack of “justice”. • A judges decision is the result of social/ideological struggles- women’s rights, civil rights etc. • Justice is achieved through law- and it is the use of judges discretion that achieves justice.

5. FEMINIST JURISPRUDENCE • Based on the idea that law and the legal system uphold the male dominated ideology and therefore promotes legal, political, social and economic inequality for women. • It states that even laws that were designed to “protect” women were truly designed to maintain their subordinate position. • Laws regarding rape were put in place not to protect women but to ensure they were valuable “marriage material”. • Male authority is still the main focus of law at the expense of women. • In North America this theory has led to great changes in law and the protection and equality of women.

6. Law based on economics • This uses economics to explain the role and function of law. • Study of laws that focus on – property, contracts and torts. • Using the foundation of economics the purpose of law is to allocate resources. • To promote the FAIR allocation of resources (not necessarily equal allocation). • This theory promotes the use of and consideration of economics in a judges decision rather than morality! • Key considerations: do fines work? If a fine is imposed and paid is it a deterrent? What if it is not paid? What are the long term impacts of imposing fines (hitting them where it hurts– in the wallet)- will it prevent them from committing the same wrong again? Will it help to prevent future costs to the gov’t through extended hospital stays?

7. CONTEMPORARY THEORISTS • H.L.A HART • JOHN RAWLS • RICHARD POSNER • NOAM CHOMSKY

8. H.L.A. HART • Purpose of law • Coerce • Force people to act or prevent them • Laws must exist and have authority behind it- people/professions that hold power and are obeyed. • Rules & laws • Primary: what one must/must not do • Secondary: defines primary rules, applies them, changes or removes them. • Universal laws are difficult- therefore there should be some flexibility “open texture of law” – judges should be able to balance the society interest and individual circumstance.

9. John Rawls • Removal of wealth and status creates a “fair”/ just society. Each can/does exist but the knowledge of each creates bias. • “Veil of ignorance” • This looks at the idea that justice is blind. • But is it truly???????????????????? • Would/Could knowledge of a person’s social status bias a jury?

10. RICHARD POSNER • Law should be useable in action and outcome. • There are “economic realities” that law should address/reflect. • Law should be used to change behaviour; BAD TO GOOD. • Smoking laws • Minimum standards for construction • Health and safety • Seat belt • Each law when followed/enforced protects society and alleviate long term strain on the economy. • Health care

11. NOAM CHOMSKY • Law is designed to serve the purpose of those with the power. • The relationship between the wealthy & powerful and the legal system/ law makers is mutually beneficial and maintains the “status quo” – therefore benefitting the elite • This system of legal influence relies on the fact that the majority is kept somewhat ignorant. Some information but not all information is given to the public therefore they are not making informed decisions. • Enough info to keep them happy but not enough to promote change. • Therefore those in power- the elite make decisions to benefit themselves.

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