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

2. Agenda 1. Legal Formalism 2. Legal Realism 3. Critical Legal Studies
4. Feminist Jurisprudence
5. Law Based on Economics

3. 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

5. 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

6. 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

7. 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

8. 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

9. Legal Realism
Based on the old adage, a judge will make his decision based upon what he had for breakfast.

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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.

16. 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)

17. Richard A. Posner

18. 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

19. Law based on Economics
Transport Ministers wont commit to criminalizing distracted driving
Debate question: should distracted driving be criminalized?