Other theories..?

What are other legal theories are there? Law, rules, sovereigns seem to be quite dull... Are there any other EXCITING theories?!

Realism

• opposes formalism (law is determinate)

• two types of realism: American (rule-sceptic) and Scandinavian (metaphysic-sceptic)

American Realism

• seen as behaviorist - "outward manifestation of mental processes"

• founding father, Oliver Wendell Holmes

"The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified..."

• obsessed with the empirical effects of the law

• law is in flux/moving

• law is a means of social ends rather than ends itself

• concedes that law is neutral and embraces liberalism

• Karl Llewellyn

  • identifies two types of law (Formal and Grand)

    1. Grand Style - judges are more considerate of policies (favored by him)

    2. Formal Style - judges relying on rule of law

  • six 'law-jobs' are needed as well as crafts (i.e., practice of the law)

• Jerome Frank

  • differentiates fact-sceptic (i.e., elusive facts in trial) and rule-sceptic (i.e., rules are not certain)

• Criticisms of American Realism:

  • some argue that this is prone to tyranny

  • Brian Leiter: Realism is a 'jurisprudential joke'

Critical Race Theory

• law is indeterminate and rejects that law is neutral and liberalism

• legal thought is a form of 'denial' - contradictions that are too painful for our human mind

• main beliefs demonstrated through opposing Roberto Unger:

  1. indeterminacy - no certain law

  2. anti-formalism

  3. contradiction - there is no dominant law view, instead many contradictory point of views

  4. marginalism - law is not a decisive factor

Postmodernism Legal Theory

• does not believe in the universal values/'metanarratives'

• new pragmatism: it has down-to-earth goals (political, ecological, and economic)

• reject the idea of 'subject' and 'object'

• Jacques Lacan (1901-81): "unconscious is structured like a language"

  • Justice is only "fantasy" that obscures the impossible goal of a "harmonious community"

Feminism

How does women play a role in law?

Liberal Feminism

• believe in the equality of law between women and men

• especially emphasize in equality within employment

• being criticized by radical of not relieving women from subjugation in the private domain (i.e., housework, etc.)

Radical Feminism

• believe in the domination of power - currently patriarchal society

• concern of legal consequences

"The injustice of sexism is not irrationality; it is domination."

Difference Feminism

• revealing miscellaneous discrimination against women (e.g., criminal, tort, etc.)

Post-modern Feminism

• focuses on the 'maleness' of law

• devised three steps for feminist legal method:

  1. 'Ask the woman question': expound on rules that seem to be neutral but actually has 'gender implications'

  2. 'feminist practical reasoning': challenge the law's claim of having a majority

  3. 'consciousness-raising': highlight women's subjugation

Critical Race Theory

• attack against law which innately reflects the opinions of 'privileged, elite, male, white majority'

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Credits

The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.

P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!

#jurisprudence #notes #introduction