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Contemporary Legal
Theories
The Different Ways we Look at the Law
Beyond Natural and Positive

Agenda

1. Legal Formalism

2. Legal Realism

3. Critical Legal Studies

4. Feminist Jurisprudence

5. Law Based on Economics

Legal Formalism
Treats

Math

law as though it were a science or

Belief

that law consists of a body of rules

and nothing more

Judges

should merely apply the law and

have no authority to act outside it

Judges

cannot depart from the law or use

their discretion in an unusual case

Judges

must apply the rules made by the

state and its agencies

Formalism continued...
Law

is enacted by a legislature and derived

from the state

The

role of the judge is to be remote and

disinterested and to apply the law

It

is not the judges role to make social

policy

New

cases should be decided according to a

scientific application of legal precedent

Conservative

view of the law

Still continued
Widely

supported in Britain and Canada

until recently

Canadian Charter of Rights and Freedoms

(1982) challenged the principles of legal
formalism

The

Charter opened a debate between

those who support the view that judges
should merely apply the law and those who
argue that the role of judges is to make law

Legal Realism
Rejects

the principles of legal formalism

Supporters

argue that the law is often

uncertain, vague, and based on the judges
own view

Some

argue decisions are often the result

of the judges mood or personal prejudices

Argues

law

that judges are real authors of the

Legal Realism
It

is the court, not Parliament, which

makes the law

Scientific

application of precedent is

an illusion
Judges

shape precedents to support

their own conclusions

Legal Realism

Based on the old

adage, a judge
will make his
decision based
upon what he had
for breakfast.

Critical Legal Studies

CLS

shares some of the views of legal

realism, but goes further in its criticism of
accepted legal theories

Law

is not neutral or value-free; it is about

value choices

CLS continued

Law exists to support the interests of the people in power

and can be a powerful instrument for injustice and
oppression

The wealthy and the powerful use the law as an instrument

for oppression in order to maintain their place in hierarchy

CLS continued
Judicial

decisions are the result of

ideological and historical struggles (e.g.
civil rights, Aboriginal land claims)

Law

should be used as a tool to achieve

social justice

State

provides for the health and welfare of

its citizens through law

Judges

can and should exercise discretion

to ensure the law also achieves justice

Feminist Jurisprudence
A

philosophy of law based on the argument

that the legal system upholds political,
economic, and social inequality for women

The

logic and language of the law creates

and reinforces male values

Even

laws put in place to protect women

and children support the view that women
are the property of men (e.g. rape laws)

Feminist Jurisprudence (continued)

Argues that the prevailing

theories of law reinforce and
preserve male authority

Theory has led to changes in

laws affecting employment,
divorce, domestic violence, and
sexual harassment in North
America

Feminist Jurisprudence (continued)

Goals of Feminist Legal Theory:

First,

feminist jurisprudence seeks

to explain ways in which the law
played a role in women's former
subordinate status.
Second,

feminist legal theory is

dedicated to changing women's
status through a reworking of the
law and its approach to gender.

Law based on Economics

The discipline of economics offers the best

explanation for how the law functions or should
function

Includes the study of laws dealing with property,

torts, and contracts

The purpose of all law is resource allocation

The function of law is to determine how resources

should be divided

Example: Richard Posner (Contemporary

Theorist)

Richard A. Posner

Law based on economics

Law

should be used as a social tool to

ensure the fair allocation of resources

Laws

should be evaluated purely from a

functional perspective (e.g. a law that
imposed a fine is successful only if it saved
more money through fewer peoples use of
state services than it cost to enforce the
law

Judges

should consider economics in all

their decisions rather than such subjective
issues as morality and justice

Law based on Economics

Transport Ministers wont

commit to criminalizing
distracted driving

Debate question: should distracted driving be criminalized?

http://globalnews.ca/tag/distracted-driving/