Contemporary Legal Theories

Slides:



Advertisements
Similar presentations
Constitutions, Law and Judiciary
Advertisements

Sauvé v. Canada (Chief Electoral Officer), 2002
+ Law & Society. + Thoughts? “The laws of a society reflect the values and beliefs of the people in that society.” Law is dynamic and changes as a society.
Power of Naming Feminist Perspectives on Women and Computers WS 445/545 – Spring 2005 Pat Samuel.
Contemporary Legal Studies. Legal Formalism: Law as Science All law is established and it is the role of the courts to discover the appropriate rule and.
Implementation of International Covenants International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural.
1Prentice Hall © 2005 PowerPoint Slides to accompany THE LEGAL ENVIRONMENT OF BUSINESS AND ONLINE COMMERCE 4E, by Henry R. Cheeseman Chapter 1 Nature of.
CLN4U Heritage 1 Thoughts Can you think of an act / behaviour that is always wrong? Why is it wrong? Is it wrong in all contexts? Has it always wrong.
Classifying Law Chapter 2:. Sources of Law in Canada Canadian Laws originate from three sources: ◦The Canadian Constitution- Constitutional Law ◦Elected.
Defining Law: Law can be divided into three different contexts as a legal concept as a legal system as a set of rules.
Introduction to Legal Theories
The Charter is part of the Canadian Constitution enacted under the Government of Prime Minister Pierre Trudeau. The Constitution is a set of laws containing.
Copyright © 2005 Pearson Education Canada Inc. Business Law In Canada, 7/e, Chapter 1 Business Law in Canada, 7/e Chapter 1 Introduction to the Legal System.
Chapter 2. In Canada laws originate from three sources: 1.previous legal decisions (common law), 2.elected government representatives (statute law), 3.Canadian.
 Unit 1.  Plato, Aristotle, Locke, Rousseau, and Marx disagreed over what society ought to be like, BUT agreed that a truly good and just life can only.
The Canadian Charter of Rights and Freedoms (CCRF)
THEORIES AND CONCEPTS OF LAW Unit 1. NATURAL LAW and POSITIVE LAW Natural Law is the philosophical basis of law. Positive Law is the working of the law.
Rights & responsibilities law in action. outcomes know where individuals rights and responsibilities come from define rights and responsibilities as applied.
Theories and Concepts of Law continued Positive Law Law is simply what political authorities or lawmakers command It is based upon human reason and authority.
SOURCES AND CATEGORIES OF LAW
Gender and Inequality How do different versions of feminism explain gender inequality? What are their strengths and weaknesses?
HISTORY OF THE CONSTITUTION: AN INTRODUCTION TO CONSTITUTIONAL LAW CLN4U.
Social Science. Society has a set of rules, enforced by the government, called laws Only rules that everyone has to follow One of the basic principles.
Classifying Law Sources of Canadian Law. What do you think? 1.Which of these situations involve law? 2.Explain how the law is involved in the situations.
1 REVIEW OF DELEGATED LEGISLATION IN CANADA: ROLE OF THE LIBRARY HUGH FINSTEN L IBRARY OF P ARLIAMENT O TTAWA, C ANADA August 2005.
Charter of Rights and Freedoms
JURISPRUDENCE: A Beginner’s Simple and Practical Guide to Advanced and Complex Legal Theory Professor Allen Richard Kamp BA, University of California-Berkeley.
Unit 1 – Heritage of Law Beyond Natural and Positive Law.
C ONTEMPORARY LEGAL THEORIES AND THEORISTS. LEGAL FORMALISM Laws are looked at and treated as if they are science or math formulas. Law consists of rules.
Classifying Law Chapter 2. Sources Of Law English Common Law – aka Case law. English Common Law – aka Case law. Laws based on the decisions of previous.
Copyright © 2008 Pearson Education Canada2-1 Chapter 2: Introduction to the Legal System.
Chapter Two Classifying Law. Key Terms and Concepts administrative law p. 43 administrative law p. 43 bylaws p. 37 bylaws p. 37 civil law p. 44 civil.
Contemporary Legal Theories CLN4U. Legal Formalism Law is a body of rules that describe what ought to be. Law is a scientific entity. Judges can only.
Last Topic - Factor responsible for development of Administrative Law
Who Said it???.
Ethics and Values for Professionals Chapter 2: Ethical Relativism
The Origins of Liberalism (Classical Liberalism)
Commercial & Property Law
Classifying Law Chapter 2.
SOURCES AND CATEGORIES OF LAW
The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms (CCRF)
Sociological School of Law
Beyond Natural and Positive Law
THEORIES AND CONCEPTS OF LAW
Law on the Web Findlaw.com.
Law on the Web Findlaw.com.
Individual Rights and the Common Good Outcome 13
The Canadian Charter of Rights and Freedoms
Theories and Concepts of Law continued Positive Law
Theories and Concepts of Law
The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms
Contemporary Legal Theories
Jurisprudence.
Exploring Jurisprudence
Theories of law.
Review for Unit 1 Test Created by Educational Technology Network
The Structure of Canada’s Government
Classifying Law.
The Canadian Charter of Rights and Freedoms (CCRF)
The Canadian Charter of Rights and Freedoms
THEORIES AND CONCEPTS OF LAW
The Canadian Charter of Rights and Freedoms
Challenging the Law Unit 9.
The Canadian Charter of Rights and Freedoms
Contemporary Legal Theories
Theory: The Nature of Law
The Canadian Charter of Rights and Freedoms
DEMOCRATIC PRINCIPLES
Presentation transcript:

Contemporary Legal Theories http://globalnews.ca/video/2931598/alberta-justice-robin-camp-apologizes-for-comments-in-sex-assault-case 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 law as though it were a science or Math 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 judge’s 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 judge’s own view Some argue decisions are often the result of the judge’s mood or personal prejudices Argues that judges are real authors of the law

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/