Critical Legal Studies by hcj


									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

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

   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.
Critical Legal Studies

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

   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,
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.
       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

CLS Includes Several
   Marxism

   Legal Feminists

   Critical Race Theorists

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

   The economically dominant class has power
    of the subordinate class.

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

   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

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

      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

       Critical Race 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.

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
Legal Reasoning
   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
Legal Reasoning
   CLS therefore sees the law as a collection of
    beliefs and prejudices that covers the
    injustices of society with a mask of

   Law is an instrument for oppression used by
    the wealthy and the powerful to maintain
    their place in the hierarchy.
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
   (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
     –   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
     –   Your work should display superior content, organization, style, and mechanics.
     –   Appropriate citation style should be followed.

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