A.

Introduction

The Critical Legal Studies Movement was formally organized at the First
Conference on Critical Legal Studies held in May of 1977 at the University of
Wisconsin.1 This jurisprudential movement has won adherents in France, in Germany, in
Canada, in England where the First Critical Legal Conference was held there in 1981.2
In 1988, the movement was introduced in the Philippines as part of the course in Legal
Theory in the College of Law of the University of the Philippines.3 For the critical legal
realists, the task of a good law school is to provide a legal education which frees the
minds of professors and students alike from the grips of the dominant liberal paradigm
and to delegitimize the improper and illicit tie between law and politics.4

B. Critical legal Scholarship Scorned

The leading proponent of the Critical Legal Studies Movement is Professor

Roberto Mangabeira Unger of Harvard University Law School. The critical legal realists
consider this jurisprudential movement as particularly close to the modern school of
legal realism.

However, some critics question the legitimacy of this movement. Richard A.

Posneri of the United States Court of Appeals and Senior Lecturer at the University of
Chicago Law School contends that the critical legal scholars are the “illegitimate
descendants of the modern legal realist school of jurisprudence.”5 G. Edward White,
Professor of Law at the University of Virginia, claims that the kinship claimed by the
critical legal scholars to the modern school of legal realism “is a grasp at legitimacy.” 6
Cornel West, Professor of Religion at Princeton University, brands the critical legal
scholars as “the academic left subculture.” While Professor West finds many of the

1
Pascual, Legal Philosophy by Pascual, 346
2
McGill University Law Journal, 189; 18 Ottawa University Law Review, 89.
3
In some law schools, the name of the course is Jurisprudence.
4
Unger, R.M., The Critical Legal Studies Movement, 96 Harvard Law Review, 667.
5
Posner, R., , 86 Michigan Law Review, 827, 829.
6
White, G.E., The Inevitability of CriticalLegal Studies, 36 Stanford Law Review, 649, 650.
1
criticisms leveled by critical legal scholars against the tradition of the dominant liberal
paradigm persuasive, he admits that he has “not fully understood their animosity and
hostility toward liberalism displayed in much of their writings.”ii

C. Polemics v. Critical Legal Realism

The Critical Legal Realism is a critique directed against many aspects of the
dominant liberal paradigm. Included therein are the “ways in which the language of
impartiality, objective due process, and value-free procedures hide and conceal partisan
operations of power and elite forms of social victimization.”7

The scholarship of the Critical Legal Studies Movement has naturally incurred the
hostility and ire of the dominant liberal paradigm.8 Ronald Dworkiniii dismisses the
thrusts of critical legal scholarship as “spectacular and even embarrassing failures.” 9
Some proponents of the dominant liberal paradigm have branded critical legal realism
as another form of radical socialism,10 no different from the critical socialism of Karl
Marx iv(1818-1883). As stated by Karl Marx, “the bourgeois concept of law is but the will
of the dominant elite erected into legislation, a will whose essential character and
direction are determined by material and economic conditions of the existence of the
class.”11

A closer analysis of the critical legal realism of Roberto Mangabeira Unger and
the critical social realism of Karl Marx will show that their common denominator is their
disenchantment with 1) the elitist tendencies of the dominant liberal paradigm, 2) the
concealed intentions and judgments behind the legal concepts and ideas which the
dominant liberal paradigm has managed to include, directly or indirectly, into the legal
7
West, C. Brendan Brown Lectures: Reassessing the Critical Legal Studies Movement, 34
Loyola University Law Review, 265, 269-270.
8
Ewald, W., Unger’s Philosophy: A Critical Legal Study, 97 Yale Law Journal, 665; Carrington,
P., Of Law and the River, 34 Journal of Legal Education, 227.
9
DWORKIN, R., LAW’S EMPIRE, 274. Harvard university Press, Cambridge.
10
Ewald, W., supra., 733, 741-753
11
THE COMMUNIST MANIFESTO, Part II, 47. Possony, S.T., Editors, Chicago Press Co.,
Chicago; MARXISM AND LAW, Bierne, B. and Quinney, R., Editors, Chicago Press Co.,
Chicago.
2
order, and 3) the belief that the system of distribution of the material and social goods is
just and in the best interest of the people, and, therefore, inviolable.12

However, the difference between the two theories is that the critical social realism
of Marx is leftist oriented while the critical legal realism of Unger is not. Unger stated
that his, “social theory is an alternative to Marxism”13 not a reaffirmation but a staunch
denial of the bourgeois plan of social division and hierarchy.14

D. Deconstruction of Dominant Legal Paradigm

The term “deconstruction” is used by the Critical Legal Studies Movement as a

method or technique of: 1) stinging inquiry and analysis of the tendencies, beliefs,
attitudes, and interpretations of the dominant liberal paradigm, and 2) internal
reformation and development of the ideas and concepts of the dominant liberal
paradigm by the presentation of the rationale or justification for the censure and the
offer of alternative solutions.v

1. Trashing the Tradition of the Dominant Legal Paradigm

The Critical Legal Realists have discovered that in the liberal legal order, there is
a free rather than a just society characterized by widening divisions and sharpening
hierarchies and a jealous special-interest economy marked by exploitative,
individualistic, and possessive propensities to control the social, economic, political, and
legal processes of society through the subtle use of power and resources.15

Three undesirable situations in the contemporary liberal order were identified by

the critical legal realists. These are: 1) the state has become the organization of the
dominant liberal class; 2) the law has become the rationalizing instrument of alienation

12
Pascual, Legal Philosophy by Pascual, 350
13
UNGER, R., FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF
RADICAL DEMOCRACY, 1.
14
Unger, R., The Critical Legal Studies Movement, 96 Harvard Law Review, 565, 666.
15
Ibid., 112-113.
3
and oppression yielding concessions to the people only when absolutely necessary in
order to avoid protests and contradictions; and 3) the social structure has become so
divided and hierarchied that status and position therein are being determined by
irrelevant inequalities.16

Unger agrees that the tradition and propensities of the dominant liberal paradigm
reveal its class essence.17

2. Internal reformulation of the Dominant Legal Paradigm

The critical legal realists have gone beyond their analysis of the traditions of the
dominant liberal paradigm at the first stage of the deconstruction process. They envision
a post-liberal socio-legal order.18

a. Rationale and Justification for the Censure

The justification for trashing the contemporary liberal legal order is to open up the
elitist discourse, agenda and practice hiding behind jural construct and categories.
These jural constructs and categories were posited precisely to nurture the law as an
effective means of balancing conflicting or overlapping claims, demands and
expectations of the different sectors of society.19 However, these constructs and
categories have been abused through subtle and sophisticated ways by the dominant
liberal paradigm to give them different casts and meanings.

The critical legal realists discuss the 1) rule of law; 2) separation of governmental
powers; 3) objectivism and formalism; 4) judicial activism; and 5) idealistic and cynical
concepts of democracy.

16
Johnson, C., Do You Sincerely Want to be a Radical?, 36 Stanford Law Review, 147;
Schwartz, L., With Gun and Camera Through Darkest CLS-Land, 36 Stanford Law Review,
413.
17
Unger, R.M., The Critical Legal Studies Movement, 67.
18
Ibid., 580.
19
Pascual, Legal Philosophy by Pascual, 353.
4
 1. The Rule of Law

This principle is traceable to Aristotle. The rule of law is preferable to that of a

single person.20

In the phrase “the rule of law”, the noun “rule” is best understood with
regnum, which means reign and sovereignty of the law. 21 This rule means that conduct
must conform to the formal and impartial norms and values of the law suggested by the
phrase “a government of laws, not of men.” Aristotle stated that the moral, political and
economic corruption of a society begins the very moment the normative principle of the
rule of law is abused. It does not matter whether the ruler or leader is generous or
compassionate. What is important is that the hierarchies of power and wealth are
materialistic values and difficult to handle even for a philosopher-king, let alone persons
in authority who take advantage of unintended consequences of governmental actions.

The rule of law is not a license for extemporaneous and arbitrary exercise
of authority but a limitation on the far-reaching exercise of political power and economic
authority.

In dominant liberal society, this principle of the rule of law has become an
empty mechanism for the protection of the people. It has become a means of
oppression. The dominant liberal paradigm has managed to conceal the struggle of the
disadvantaged class to obtain the benefits of positive equality promised by the
constitution. The principle of “the rule of law has become another ideological and
rhetorical ruse by which the elite coteries within society transmit false consciousness to
the already disadvantaged segment of society.”22

20
ARISTOTLE, THE POLITICS, III, 16, 3. Jowett Translation. Clarendon Press, Oxford.
21
Ibid., III, 16, 5.
22
Belloti, R. A., The Rule of Law and the Critical Legal Studies Movement, 24 University of
Western Ontario Law Review, 67.
5
 2. Separation of Governmental Powers

The issue in this principle involves the basic separation of powers. It involves
more than a question of checks and balances on the exercise of governmental powers.
It is concerned with the direct and indirect confrontation of core interests and functions
between the legislative and executive power vis-à-vis the legislative power and vice
versa.23 The purposive elements of this principle are to safeguard liberty by preventing
the concentration of governmental authority in a single person or body of persons, to
ensure efficiency in the performance of governmental functions, and to fix responsibility
and accountability in the exercise of such functions.

This principle has been obscured by the fact that to a great extent the different
branches of government have become the means for power and wealth of the dominant
liberal class. The contemporary liberal order “has become politicized to such an extent
that governmental powers are no longer separated, they are not even shared.” This is
manifested in the performance of the designated functions of the distinct branches of
the government.

3. Objectivism and Formalism

These techniques have been utilized by the dominant liberal class to mask its
maintenance of the status quo.

The objectivism assailed by the critical legal realists is not the cognizable
extrinsicality of legal concepts and legal rules. What they have assaulted is the liberal
view that the contemporary legal order, including the built-in institutional structures that
undergird it, is already sufficient to sustain society and, therefore, no reason exists to
complain about it.24

23
Pascual, Legal Philosophy by Pascual, 360.
24
Unger, R.M., The Critical Legal Studies Movement, 565, 568.
6
 The formalism attacked is not so much the application of legal rules on the facts
involved in a conflict of interests as it is: 1) over-dependence on legal rules; and 2)
assumption that the legal order is non-partisan in the adjustment of conflicting interests.
This kind of formalism has resulted in the separation of the underclass from the
protection of the law to which they are entitled to.25

4. Judicial Activism

Judicial activism is also known as judicial legislation. What infuriates critical legal
realists is the abuse of the courts of the text of a statute which is not otherwise
indeterminate. Liberties with the statutory text have been taken by courts either by
creating different rules not fairly implied in the statute or by contradicting the intent of
the lawmakers. Judicial activism, according to the critical legal realists, is nothing but a
euphemism for avoiding the principle of separation of powers.

The main concern of the critical legal realists is the danger of illegitimate
decisions.

Justice Oliver Wendell Holmes has been cited to support judicial activism,
although he spoke not in absolute terms. He said that “courts legislate interstitially; they
are confined from molar to molecular motion.” While judicial activism cannot be avoided,
nevertheless, such activity is proper only when there are interstices or gaps in the text
of the statute under question. If there are none, it cannot be exercised. Courts cannot
enlarge the scope of a statute to include matters beyond its text or import.

Judicial activism based on molecular to molar motion is condemnable on several

grounds: 1) it reflects only the personal or collective prejudices of the judges on what
the legal rule should be; 2) it is an arrogant claim by a few unelected judges of veto
power over legislation; 3) the legislators who are the representatives of the people an
politically accountable to them, not the judges with an almost lifetime tenure, are the

25
Idem.
7
ones to make, modify, change, or repeal legislation; 4) courts should have no advantage
over elected legislators and the former are to put into effect legislation regardless of
their disagreement with the wisdom of the legislation, except when it is unconstitutional;
5) legislative facts and assessment of policy questions are entirely different from judicial
facts and consideration of actual cases; and 6) courts have no moral and legal bases to
create or contradict rules or policies merely on advisability.26

The indeterminacy of laws enacted by the legislature appears in two forms. First,
when they are vague. Second, when they provide inconclusive guidance as to how
persons are to act in the performance of their obligations or in the exercise of their
rights.27 Although it may appear that these are permissible cases wherein courts may
exercise judicial discretion, the issue on separation of powers is still taken into account.
The specific commentary is that it is the better part of wisdom to “send out warning
signals through dictavi or similar devices.” The reason for this approach is that dicta,
whether judex dictavii or obiter dictaviii are harmless for they are disowned by the ratio
decidendiix.28 Thus, they do not qualify as judicial precedent.

Another point given emphasis by the critical legal scholars is that judicial policy-
making dulls the cutting edge of pure analytical reasoning. Analytical reasoning is
replaced by political reasoning whenever courts engage in judicial policy-making.29

Judicial activism is an abdication of judicial neutrality and, what may even be

worse, a concealment of the real grounds for the so-called decision. It, then, becomes a
mask to hide illegitimate exercise of judicial power.

5. Idealistic and Cynical Concepts of Democracy

26
Pascual, Legal Philosophy by Pascual, 364
27
Fishel, R., Some Realism About Critical Legal Studies, 41 University of Miami Law Review,
505.
28
Cardozo, B., Law and Literature in JURISPRUDENCE IN ACTION, 47
29
Klare, K., THE POLITICS, iv.
8
 The critique against the idealistic version of democracy is that it is awash with
inapt hope on and misplaced confidence in the majoritarian rule and the theory of the
consent of the governed. Abuses of the will of the majority and of the consent of the
governed are common. In the case of the principle of the majoritarian rule, sometimes,
no heed is given to the varying claims, demands and expectations of the people. In the
case of the principle of the consent of the governed, critical legal realism agrees only on
its basic premise that consent is necessary because nobody really has an a priori right
or claim to govern anybody. The problem arises when this principle is exploitatively used
and applied.30

The dominant liberal paradigm has manipulated the people, confining the
concept of consent of the governed to involve only periodic elections to or rotations in
offices at the different levels of government. For the critical legal realists, both the
intellectual constructs of majoritarian rule and consent of the governed have been subtly
manipulated by the dominant liberal paradigm to mask social divisions and material
hierarchies it has imposed on society.

The critique against the cynical type of democracy is that the dominant liberal
paradigm has virtually gained control of the government as well as the monopoly of the
financial, production, commercial, and monetary involvements of the country.31 The
dominant liberal class would argue that it has occurred only after hard, rugged
competition. Although there is hard and rugged competition, it is indisputable that such
contest is still among the elites themselves. The other members of the society, not
belong to that class, become social victims. Robert Unger points out that the elites who
shrewedly seek the support of the people through the election and other established
representative institutions may just stop doing so,32 especially when the domination of
the legal order has reached its maximum degree. The realization of such would lead
make the dominant liberal paradigm more insulated from being accountable to the
public.

30
Pascual, Legal Philosophy by Pascual, 372.
31
Unger, R.M., The Critical Legal Studies Movement, 96 Harvard Law Review, 589.
32
Ibid., 581.
9
 b. Transformation of the Liberal Legal Order

There are two basic means for transforming the liberal legal order dominated by
avid capitalism. These are the norm of positive equality and the norm of democratic
republicanism.33

1. Positive Equality

The transforming norm of positive equality is traceable to Aristotle, who

posited the concept of fair equality as a jural postulate of natural law. 34 It has become
the basis for the distribution of the social and material goods of society depending upon
individual effort and merit.35

In Guido v. Rural Progress Administration36 and Republic of the Philippines v.

Baynosis37, Justice Jose P. Laurel developed the idea that positive equality is a
categorical egalitarianism. He found nothing cunning in the dimensions of the norm of
positive equality. These dimensions mentioned are: 1) equality of opportunity; 2)
equality before the law; 3) equality between values given and received; and 4) the
equable sharing of social and material goods on the basis of efforts exerted in their
production.

Critical legal scholars emphasize that the transforming norm of positive equality
is not so much the production of social and material goods as it is the fair and equable
distribution thereof on the basis of individual effort and merit so that none should be
wanting. This transforming norm is the best constitutional security not only against
social and material divisions but also against the dichotomy of legal relations in terms of

33
Bauman, R. A., The Communitarian View of Critical Legal Studies, 33 McGill Law Journal,
295, 346.
34
Legal Philosophy by Pascual, 373.
35
ARISTOTLE, THE POLITICS, Book V, Chapter 2. Ross Translation. Oxford University Press,
London.
36
84 Phil. 847.
37
96 Phil. 461.
10
the places occupied by individuals in the social structure. 38 The rationale is that it tilts
the enviable objects of human desires on the side of the disadvantaged class in society.
The post-liberal society claims that there is indeed social, political, economic,
educational, and legal equality.39

However, the equality envisioned is still dependent on the honest implementation

of the norm of positive equality.

Critical legal scholarship tips off that to the extent that the contemporary liberal
order fails to deal with the struggle for positive equality, then, the legal order “sinks into
desperate self-concern and denial of commitment”, as uttered by Unger. In this
scenario, the contemporary liberal legal order “becomes conceited and denies its basic
commitment as an instrument in balancing the conflicting or overlapping wants and
interests of the different sectors of society.”40

2. Democratic Republicanism

The democratic republicanism underscores the proper relationship that should

exist between the legal order and society in general and defines the essential features
of the social organization as well as the individual rights and entitlements that the
government must protect come what may.41

The post-liberal society should not be only republicanized, that is to say

established and organized for the purpose of deconstructing the liberal order but also
democratized, that is to say eradication of social divisions and hierarchies and the

38
Johnson, C., Do you Sincerely Want to be a Radical? 36 Stanford Law Review, 359.
39
Alexander, L. and Schwarschild, M., Liberalism, Neutrality and Equality of Welfare v.
Equality of Resources, 16 Philosophical and Public Affairs, 85.
40
Pascual, Legal Philosophy by Pascual, 375
41
Unger, R.M., The Critical Legal Studies Movement, 96 Harvard Law Review, 570.
11
return to the people of their right to rule through universal suffrage, genuine
representative institutions, freedom of expression and the benefits of the print and
electronic media to make such freedom possible and worthwhile.42

It can be inferred based on this discussion that the harmonious co-existence of

the exercise of governmental powers and the people’s enjoyment of their basic rights
and primary entitlements is possible.

E. Transformative Content of Post-Liberal Order

There is neither exact formula nor detailed blueprint of the structure of the post-
liberal polity. The general statement however, is not to repeat the errors of the past.
Each society has its own distinct needs and social temper. Thus, the details of
the post-liberal order will be dependent of such temper and needs. However, Roberto
Unger points out two considerations that must be taken into account in the
conceptualization of the transformed socio-legal order. These are: 1) the post-liberal
socio-legal order must not fall hostage to any faction therein;43 and 2) the transformed
socio-legal order must always be alert for opportunities to eliminate divisions and
hierarchies in society.44

Furthermore, Roberto Unger proposes the decentralization of government, the

reorganization of the market economy, and the reconstruction of the system of rights in
order to avoid the first consideration abovementioned and to realize the second
consideration.

1. Decentralization of Government

The critical legal realists say that the legal ordering of the society is hampered by
too much check and less balance and a lot more undue process of law in the execution

42
Pascual, Legal Philosophy by Pascual, 375
43
Unger, R. M., The Critical Legal Studies Movement, 96 Harvard Law Review, 593
44
Ibid., 588.
12
of projects and activities especially in the area of exercise of executive power vis-à-vis
use and practice of legislative power.45

Included in the resolutions of the critical legal realists is accountability. The three
branches of government, regardless of number, should themselves be designed to be
accountable to the people.46

The second one would be devolution or the dispersal of governmental powers,

functions and resources down to the regional level of society.47 It would be the
legislative and executive power authority that have to be devolved. It should provide
mechanisms to empower the people for them to have active participation in governance.
Examples would be initiative, plebiscite, recall and the like. However, there must be
clear limitations in the devolution of authority in order to preserve the unity and peaceful
existence of the state.48

The third element involves the effective and efficient decision-making. It involves
the quick and clear resolutions of conflicting and overlapping interests among the
branches of the government.

The last element for the decentralization of government is concerned with the
party in power. The critical legal realists envision that the party government shall be
responsible, accountable where politics is not insulated from public scrutiny and where
governmental positions and offices are not considered as personal entitlements or
hereditaments.49

2. Reorganization of the Market Economy

45
Ibid., 500.
46
Unger, R. M., The Critical Legal Studies Movement, 96 Harvard Law Review, 593.
47
Idem.
48
Pascual, Legal Philosophy by Pascual, 382
49
Ibid., 383
13
 Aside from the decentralization of government, the critical legal realists propose
another transformative context, which is the reorganization of the market economy. In
the dominant liberal paradigm, the mechanisms of monopolization and cartelization
compose the market system.50 The market is controlled by the mega-business with
interlocking satellite businesses and other forms of economic ventures. The small- and
medium-scale business could hardly penetrate the market. Thus, the principle of
equality of opportunity is hardly realized, resulting to a divided society.

The reorganization of the market economy means the equitable sharing and
distribution of surplus or pure profit on the basis of effort exerted in its production.51
Thus, the government has to create mechanisms or projects in order to extend support
for the demand on the social capital.

Two constraints for the realization of the reorganization of the market economy
are seen by the critical legal realists. These are: 1) the possibility, not entirely remote, of
the merger of domestic entrepreneurs into another hierarchy of market organization;
and 2) the rapid population growth which puts a severe and continuing strain on the
natural resources.52

3. Reconstruction of the System of Rights

The critical legal realists state that the liberal concept of rights and obligations is
based on the elitist conditions of avid property holding stabilized by power and wealth.
These conditions have been nurtured by the dominant liberal paradigm as its zone of
free will neither the government nor private individuals may invade.53

50
Idem.
51
Idem.
52
Ibid., 384.
53
Unger, R. M. The Critical Legal Studies Movement, 96 Harvard Law Review, 597. Adler, M.,
W e Hold This Truth, 137, 139. MacMillan Press, New York.
14
 The dominant liberal paradigm views the concepts of “right” and “obligations” as
its discretionary area of enjoyment. Thus, the rich becomes richer and the poor poorer.54

An example of an elitist economic liberalism according to the critical legal realists

would be the 1987 Constitution wherein it has taken the reference to property to another
dimension, from protection of dominion in property to protection of interest in value.

In the post-liberal socio-legal order, new concepts of rights are introduced. These
are: 1) the “resistance right”; 2) the “destabilization right”; 3) the “solidarity right”, and 4)
the “market right.”

The “resistance right” gives every individual “the fundamental sense of safety that
enables him to accept a broadened practice of collective conflict without feeling his vital
security endangered.”55 One is given authority to be able to repel interferences with his
vital security in the social and economic aspects of life.

The “destabilization right” is the counterpart of the equal protection clause

enshrined in our constitution. The reason for the introduction of this principle is to avoid
discriminatory legislation as it violates human dignity. Critical legal realists claim that the
equal protection of law principle that we know is inadequate in so far as it could not
disrupt government institutions that have contributed to social divisions instead of social
justice and national unity. This right insures that institutions do not accumulate power
that may insulate them from challenge and accountability. Under the dominant liberal
paradigm with solicitude and tendency for avid property holding and protection, even the
accountable branches of government may fall under the control of entrenched segments
or institutions and thus, fail to protect and serve the public.56

Destabilization right is the institutional protection of an empowered democracy.

This right corrects the collective disadvantage by prohibiting the state from becoming a

54
Pascual, 385
55
The Critical Legal Studies Movement, 96 Harvard Law Review, 600.
56
Pascual, 387
15
party to oppression and obliging the government to disrupt the unjust and cruel exercise
of authority which had become effectively insulated from democratic conflict.57

“Solidarity right” gives every member of the society the right to exact the
performance of the entire interests or responsibilities of a group in order to enjoy along
with others the unified life of society.58

“Market right” establishes the limits of the claims which a person or group of
persons may make against capital available in society. It enables every member of the
society to question concentration of concessions of natural resources in one individual
or group of individuals. It gives a person the “conditional and provisional claim to the
divisible portions of the social capital established by the state.”59

F. Nature and Function of the Law

Critical legal realism has unleashed an intense challenge to the dominant liberal
paradigm. It has been claimed that critical legal realism is “the most extensive and
influential critique of liberalism in recent memory.”60

For the critical legal realists, law is an instrument to redeem the people from
social divisions and hierarchies. Critical legal realism is an advocacy of the law as a
neutral and objective means of social control with emphasis on its liberating function.
“Only when the law is neutral and maintains its neutrality in the inevitable conflict of
claims, demands and expectations can everyone in society accept it as a means of
social control and feel safe and secure from illegitimate divisions and hierarchies.”61
57
The Critical Legal Studies Movement, 96 Harvard Law Review, 612, 613-614.
58
Ibid., 600.
59
Ibid., 600.
60
Levenson, S., Escaping Liberalism: Easier Said Than Done, 96 Harvard Law Review, 1466;
Stick, J., Can Nihilism be Pragmatic?, Harvard Law Review, 322; Ackeman, B., Law in the
Activist State, 92 Yale Law Journal, 1083.
61
Pascual, 389-390.
16
ENDNOTES:

17
i
Posner is the leading figure of the moderate Law and Society Movement. In his book entitled
Economic Analysis of Law (2d edition), Posner studies the possibilities for the law of the principles
of economics and how to think like an economist about the legal rules.
ii
The use of the terms “dominant liberal tradition” and “dominant liberal paradigm” by the Critical
Legal Studies Movement does not refer to the familiar classification of persons and ideas as
“liberals” or “conservatives.”
iii

One of the leading defenders of the tradition of the dominant liberal paradigm.
iv

Marx championed the eradication of the liberal bourgeois society and its substitution by the
socialist society expressing the interests and aspirations of all the toiling classes.
v

The process of internal reformulation and development is also known as the deviationist process
due to deviation from the contemporary liberal legal order.
vi

Dicta – The part of a judicial opinion which is merely a judge’s editorializing and does not directly
address the specifics of the case at bar. These are judicial opinions expressed by the judges on
points that do not necessarily arise in the case.
vii

A judex dictum is an expression of an opinion on a matter argued by opposing counsels but not
essential to the disposition of the case.
viii

An obiter dictum is an expression of an opinion on a matter which has not been raised in the case.
ix

Ratio decidendi is the point in a case which determines the judgment or the principle which the
case establishes.