Challenging the Law

Unit 9

Stare Decisis

“Following precedent.”

It is important for precedent to be followed because the stability of society requires that the law not change too rapidly.

Legal Realism

Judges arrive at decisions using personal, moral and political considerations.

The law fails to yield determinate decisions in cases.

Law students need to take a less idealistic view of the law.

The Legal Realists felt that the law should be flexible to promote the good of society.

Society was evolving and new legal rules are required in order for progress to continue.

Legal Realism

Sources of law are not self interpreting.

For matters on appeal there are no legal materials at hand to help reach a decision.

Legal Realism

Critical legal studies (CLS) is a theory that challenges and overturns accepted norms and standards in legal theory and practice.

Critical Legal Studies

Critical Legal Studies

Proponents of this theory called “Crits” believe that logic and structure attributed to the law grow out of the power relationships of the society.

The law exists to support the interests of the party or class that forms it and is merely a collection of beliefs and prejudices that legitimize the injustices of society.

Critical Legal Studies

The wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy.

Bosses/workers, judges/litigants, adults/children, whites/nonwhites/men/women.

Critical Legal Studies

The basic idea of CLS is that the law is politics and it is not neutral or value free. CLS is also a membership organization that seeks to advance its own cause and that of its members.

Critical Legal Studies

History of CLS

CLS was officially started in 1977 at the conference at the University of Wisconsin-Madison, but its roots extend back to 1960 when many of its founding members participated in social activism surrounding the Civil Rights movement and the Vietnam War.

Source: http://topics.law.cornell.edu/wex/Critical_legal_theory

CLS Includes Several Subgroups

Marxism

Legal Feminists

Critical Race Theorists

Marxism

The history of political and social life is a history of class struggle.

The economically dominant class has power of the subordinate class.

Marxism

One class dominating the other will be reflected in the law.

Those in economic power often have control over making and applying the law.

Lawmakers and judges are drawn from the elite class.

The legal order is unable to sustain norms too contrary to the prevailing economic relationships.

Marxism

The economic class one belongs to will determine the concept of morality and values that one adopts.

Laws that appear neutral and impartial on their face really aren’t.

Feminist Legal Theory

Catharine A. MacKinnon is a leading figure in radical feminist criticism (sometimes called fem-crit).

Source: http://topics.law.cornell.edu/wex/Critical_legal_theory

Throughout her career, MacKinnon has attempted to show the ways in which the established legal system reflects the sexism of the society that created it.

Feminist Legal Theory

Source: http://topics.law.cornell.edu/wex/Critical_legal_theory

Feminist Legal Theory

"The law," MacKinnon wrote, "sees and treats women the way men see and treat women."

Source: http://topics.law.cornell.edu/wex/Critical_legal_theory

Critical Race Theory

Critical race theorists share a number of themes. Like CLS, CRT finds major faults in liberalism and particular features of liberal jurisprudence that bear on race, including affirmative action, neutrality, and "color blindness."

Source: http://topics.law.cornell.edu/wex/Critical_legal_theory

Many CRT writers, for example, dispute that the Constitution is or ever can be "color-blind." They also assert that supposed breakthroughs in the area of racial rights by the Supreme Court serve only to validate an unjust political system by creating the illusion that racial inequalities are being ended when in fact they are not.

Critical Race Theory

Source: http://topics.law.cornell.edu/wex/Critical_legal_theory

Law as Politics

First among the basic ideas that CLS scholars tend to share is the notion that law is politics—in other words, that law and politics are indistinguishable from one another.

According to the crits, there is no subcategory of practical reasoning called “legal reasoning.”

The kind of practical reasoning judges and lawyers do is no different from the kind anyone does when making a moral or political decision.

Legal Reasoning

The legal system, according to CLS, supports the status quo, perpetuating the established power relations of society.

The law does have logic and structure, but these grow out of the power relationships of society.

Legal Reasoning

CLS therefore sees the law as a collection of beliefs and prejudices that covers the injustices of society with a mask of legitimacy.

Law is an instrument for oppression used by the wealthy and the powerful to maintain their place in the hierarchy.

Legal Reasoning

The Law

CLS theorists also share the related view that the law is indeterminate. They have shown that using standard legal arguments, it is possible to reach sharply contrasting conclusions in individual cases.

The Law

The conclusions reached in any case will have more to do with the social context in which they are argued and decided than with any overarching scheme of legal reasoning.

Final Paper

Listen to (or read) the speeches by Martin Luther King and George Wallace concerning the issue of segregation and analyze the transcript of those speeches. Identify views of philosophers or philosophical theories discussed during the term that relate to these speeches. 

A speech by Dr. Martin Luther King, Jr., delivered 28 August 1963, at the Lincoln Memorial, Washington D.C

Governor George Wallace’s January 14, 1963 inaugural address Analyze the statements of each speaker. What does each statement imply

regarding their views on the following legal philosophical issues: (a)   the legitimacy of positive law versus natural law (b)   a subject’s duty to obey the law (c)   how law should or should not be used to promote the common good (d)   Harm to others principle as justification for his views (e)   the roles paternalism and autonomy should play in determining the aims of

law (f)    the role morality should play in determining the aims of law

Final Paper

Identify the statements in the speech that support your position. Justify your arguments by referencing the views of philosophers or philosophical theories discussed during the term. Supplement your discussion with material from two sources other than the textbook.  If you perform the assignment completely, you will have 12 arguments total, six for each speaker.

Your paper should be at least 1500 words in length, exclusive of references. In addition to fulfilling the specifics of the assignment, a successful paper must

also meet the following criteria:– Length of each summary should be at least 1500 words excluding cover page and

references. – Viewpoint and purpose should be clearly established and sustained. – Assignment should follow the conventions of Standard American English (correct

grammar, punctuation, etc.).  – Writing should be well ordered, logical and unified, as well as original and

insightful. – Your work should display superior content, organization, style, and mechanics. – Appropriate citation style should be followed.