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/