Critical Legal Studies: Indeterminacy and Contradiction
Critical Legal Studies scholars are a group of like-minded people that mounted an attack on liberalism, they critiqued and attempted to challenge the liberal foundations of the legal system. The CLS movement began in Harvard when young scholars attempted to construe an updated understanding of law. It was inspired by the American Legal Realists and other activist movements. CLS scholars do not have one single approach and this may be viewed as a weakness since they are unable to show a unified front with one coherent theory. There are however, a number of common themes that tie this group together . They believe that the law provides certain people with an advantage and others with a
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CLS is motivated by the idea of changing and improving upon the existing oppressive system to provide what they believe is a fairer system of law. It is important to note that Critical Legal Theory is different to Critical Legal Studies. Critical Legal Theory is a term that comprises a number of different critical theories and CLS is just one branch of these theories. There were four key elements of the CLS critiques; indeterminacy, contradiction, reification, and legitimation. Throughout this essay I will analyse specifically the strength of their critiques of indeterminacy and …show more content…
This essentially means that laws in statute, and in common law cannot determine the eventual outcome of new cases. They argue, ‘that legal questions lack single right answers. In adjudication, law is indeterminate to the extent that authoritive legal materials and methods permit multiple outcomes to lawsuits.’ CLS scholars believe that ‘legal reasoning’ is simply the manipulation of abstract categories, with no particular perspective being obviously correct. In law, they argue that there are multiple abstract categories that are open to manipulation. For example, under employment law there are a number of abstract categories including workers, employees, employers etc. Various definitions of these categories are generated by the law and these definitions are then used in an attempt to determine which category everyone fits into. CLS scholars argue that it is these abstract categories that are manipulated during the process of legal reasoning. Effectively, the constituent elements of such categories are challenged and changed, so what a category includes or doesn’t include, or what a category means or doesn’t mean, is reshaped to fit the desired outcome. CLS scholars claim that it is extremely difficult to determine or to predict which manipulation of each abstract category is going to be most effective in influencing legal outcomes in cases, making the law
Conservative jurisprudence can be understood as an agenda of conserving existing conditions, upholding restricted rights in cases concerning individual, society, and sexual liberty interests in order to retain in its traditional style as similar in the past as possible whereas liberal jurisprudence place itself with a constitutional theory that expand individual rights. By applying these ideologies in the interpretation of the legislation, it can be said that conservatives will interpret the text as a rulebook to be followed strictly as possible and they are able to justify employing the narrowest level of generality in their analyses of
Roach, K. (2008). Dialogic Judicial Review and Its Critics. In D. Dyzenhaus, S. Reibetanz Moreau, & A. Ripstein, Law and Morality: Readings in Legal Philosophy (3rd Edition ed., pp. 589-644). Toronto: University of Toronto Press.
Barker (2014, p.1) suggests that the law may be defined as a rule of human conduct, imposed upon and enforced among the members of society in which laws are inaugurated to ensure that social order continues. As a result, laws ensure that members of society may live and work together in an orderly manner by following the same rules. However, laws have different affects on individual members in society and from this point of view, this essay will focus on how laws in society affect individuals in minority and disadvantaged groups.
The Avalon Project at the Yale Law School. Ed. Fray, William C. April 2000. Yale University. 1 May 2000. (http://www.yale.edu/lawweb/avalon/wilson14.html)
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
Columbia Law Review, 104, 1-20. doi:10.2307/4099343. Reynolds, S. (2009). The 'Standard'. An interview with Justice Ruth Bader Ginsburg.
of law has proved to be confusing to both juries and judges due to the
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.
In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil.
In "a view from the Bridge", justice and law are not presented as being synonymous.
The English legal system is ostensibly embedded on a foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions
Legal Pluralism is the presence of various legal systems within a single country or a geographical area. Legal Pluralism is omnipresent although it is generally assumed to exist in countries only with a colonial past. This is because in most countries with a colonial past, colonial laws co-exist alongside indigenous laws. However, if we look at the expansive definition of legal pluralism, it can be said that every society or country if legally plural. The modern definition of legal pluralism also deals with the issues of relation between state and non-state legal orders. It shows the dichotomy that exists between customary legal norms and state law. The judiciary of India has upheld this principle of pluralism in many cases by showing that