Contemporary Legal Thought
After today's lesson in class, you would have gone through a time wrap. One in which you would've imagined yourself along with Plato, Hobbes, and Bentham - to name a few. These philosophers have influenced jurisprudence and contemporary legal thought in North America. Some of these historical views have been accepted, while some have been overruled by contemporary theories and theorists. That is exactly what you will be studying in today's lesson.
Contemporary Legal Theories
L+A+W = LAW! The best way to understand legal formalism is the idea of combining your knowledge from math/science to law! It is a legal positivist theory. Supporters of legal formalism believe that law is a body of rules. With that being said, judges should therefore apply the 'formula' of law, rather than applying their 'authority' or 'judgment'. Think about this, formalists believe that judges do not 'make' the law, rather, they 'find it'. If there are new cases, then a judge must apply scientific applications rather than make social policy. When the Charter was introduced in 1982, many formalists challenged its principles. The Charter opened debate between those who support view that judges should apply law and those who argue that role of judges is to make law.
Realism and formalism do not get along! Supporters of this theory argue that formalist views are too vague and lead to uncertainty. They argue that judges are in fact the authors of law and should be the ones who shape precedents.
Critical Legal Studies (CLS)
CLS and realism are acquaintances - but not friends. CLS proponents argue that the law is neither neutral nor value-free. Meaning, are firm believers that the law support the interests of the people in power and can also be an instrument for injustice. Remember the Benjamin Franklin quote? According to CLS, judicial decisions are the result of ideological and historical struggles. Examples: Aboriginal land claims and Civil Rights Movement.
Girl power! FJ support the theory that the legal system upholds political, economic, and social inequality for women. Consider the legal language of law. Think back to the quotes we looked at in class. One of them read "If any one steal the minor son of another, he shall be put to death" - Code of Hammurabi. FJ philosophies argue that the historical/contemporary laws supposedly protect women and children. But, through this quote, you can observe the inequalities women faced back then and today as well. Supporters of this philosophy consider the laws that deal with rape were put in place to protect women as a marriageable commodity rather than protect them from a violent act.
Law Based on Economics
How should the law function? Well, you can ask supporters of this theory and they can tell you that the purpose of law is resource allocation. Meaning, law tells us how (scarce) resources should be divided. The law is evaluated based solely on economics and it's 'quantitative' functions.
You will be examining four (4) contemporary theorists who have approached law and jurisprudence through a different perspective than the historical philosophers you studied today. First, you will read pp. 98-99 and then using the Padlet link, you summarize each theorists ideologies into one group Padlet board.
1) H.L.A Hart http://padlet.com/ms_lal/l7zd3tm9hlkp
2) John Rawls http://padlet.com/ms_lal/iz8zwil321iu
3) Richard A. Posner http://padlet.com/ms_lal/6het9htdc692
4) Noam Chomsky http://padlet.com/ms_lal/224e29uplu5w