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 apply the law as it exists. Also called Legal Conservatism.

Legal Realism Argues that judges are the authors of law. Law is all about value judgements. The Court, not Parliament, really makes the law. Judges shape law to suit own pre-conceived notions of justice.

Critical Legal Studies No method of lawmaking is truly neutral. Meaning depends on circumstances and human choice. Law is about value choices of people in power and can be used as an instrument of control. Judges should be given discretion to ensure the law achieves justice.

Feminist Jurisprudence The state and all its features are seen as male. Laws have been framed to perpetuate patriarchy Objectivity is a male-prized norm - females value empathy more. Effect can be seen in recent changes to laws concerning rape, sexual harassment, employment, etc.

Law Based on Economics Purpose of law is resource allocation. Economic impact should be considered, not just morality. Ex: bicycle helmets should be mandatory only if the savings (use of health services) outweighed the cost of enforcement. Cost/benefit analysis