Contemporary Legal Theories

Modern Thought Modern legal theorists accept the principles of the past philosophers However, they have challenged many of the views of jurisprudence and added their own contributions Although there are quite a few modern schools of thought related to law, the following are some of the more prominent ones.

Legal Formalism Law should be treated like math or a science Law is nothing more than a body of rules, nothing more Judges should only apply the law and have no authority to act outside of it Judges cannot depart from the law or use discretion in unusual cases The law is derived from the power of the state- therefore judges should be remote and disinterested- use scientific application of precedent

Legal Realism Rejects the ideas of formalism because the law itself is uncertain, vague and based on a judge’s personal view Personal prejudices, moods, experiences play a role in the decisions Judges are in fact the real authors of the law Judges can shape precedent to support their conclusions

Critical legal Studies (CLS) The law is not neutral or free of values- rather it is all about value choices The law exists to support the interests of the people in power Judges decisions are made through ideological and historical struggles CLS supporters believe that the law is used to achieve social justice (health care) or to suppress Judges can and should exercise their discretion to cases Opponents say that the law is a way to control a society and bend their beliefs

Feminist Jurisprudence The legal system upholds political, economic, and social inequality for women Logic and language of law creates and enforces male values Even laws that protect women are there as an indication of the view that women are property of men Rape law was not made to protect a woman but to protect the value of a woman as a commodity

Law Based on Economics The purpose of all law is resource allocation, nothing more. Determine how resources should be divided and therefore where power can lay Fair allocation or oppression? Fiscal functionality is a popular legal perspective- a law forcing people to wear bike helmets would be considered good only if it saved money through fewer people’s use of health care services Judges should think of economics and not morality or justice when making decisions Sometimes labeled as “Marxist theory”