Contemporary Legal Theories H.L.A. Hart John Rawls Richard Posner Noam Chomsky

Contemporary theorists Many of these theorists share either a natural or positivist perspective on law and justice Unlike historical philosophers – they aren’t radically different in their thinking Have challenged philosophers and added their own contributions Recognize valid aspects to most theories

1. Legal Formalism: Recognizes law as a science; a body of rules. Judges should merely apply the law; have no authority to act outside it. Judges should not depart from the law; cannot rely on their “impartial” discretion. Must apply rules made by state and its agencies. Judges should not be involved in making social policy. Decisions in new cases come from the scientific application of legal precedent.

Formalists also believe that law is enacted by a legislature and derived from the state. Legal formalism is a very conservative view of the law. The introduction of the Charter in 1982 challenged the principles of legal formalism. Sparked debate: Should judges merely apply the law or should they be involved in making law.

2. Legal Realism Rejects the principles of legal formalism. Law itself is often uncertain, vague, and based on the judge’s own view. Legal decisions often are the result of a judge’s mood or personal prejudices. Judges are in fact the real authors of law; Court, not Parliament, in reality makes the law. “Scientific application of precedent” is an illusion. Judges shape precedents to support their own conclusions.

3. Critical Legal Studies (CLS) Shares some views of legal realism CLS argues that the law is not neutral; it is about value choices. The law exists to support the interests of the people in power; law can be a powerful instrument for injustice and oppression. Law should be a tool to achieve social justice. Judges should use own discretion to insure law achieves justice. The state should use the law to ensure the health & welfare of its citizens.

4. Feminist Jurisprudence Based on the argument that the legal system upholds political, economic and social inequality for women. The logic and language of the law create and reinforce male values. Prevailing theories of law reinforce & preserve male authority at the expense of women (even law in place to protect instead Support that women are property of men). What are some examples of these laws?

Supporters of FJ have led to changes in North American laws affecting: Employment / Sexual Harassment -Glass Ceiling Affect + Wage Discrepancy Divorce - In 1925, men could file for divorce based on adultery - In 1925, women had to prove desertion + adultery to file for divorce Domestic Violence - Battered Women Syndrome Political Rights - Person’s Case (1929) - Women’s Franchise Act (1918)

5. Law Based on Economics Discipline of Economics offers best explanation of the functions of law. Deals with property, torts, and contracts Purpose of law is resource allocation. Law should be a social tool to ensure the fair allocation of resources. Laws should be evaluated based on the functional perspective(Richard Posner) Example: law imposes fine for ppl who don’t wear helmet on bike would be considered successful only if more money through fewer ppl’s use of health services due to less injuries Judges should consider economics in all their decisions, instead of justice and morality.