EH

Legal Theory: American Legal Realism and Critical Legal Studies

Legal Debates and Critical Approaches

  • Traditional Dominant Schools of Thought
    • For centuries, legal debate has been primarily shaped by two major approaches:
      • Legal Positivism: Focuses on law as it is, created by human institutions.
      • Natural Law: Approaches include both substantive (moral content of law) and procedural (fair process leads to just law).
    • Both approaches, despite their differences, share a high level of abstraction, acting as "grand theories" that incorporate political and moral views to influence judicial decision-making beyond mere interpretation.

American Legal Realism

  • Focus: Emphasizes studying the "real-world of law" or "law in practice," rather than abstract legal theories.
  • Critique of Judicial Decision-Making: Challenges the idea that judicial decisions are purely objective interpretations, suggesting judges might make mistakes in observation, recollection, or apply subjective factors.
  • Indeterminacy of Law: Realists argue that law is not completely determinate, meaning there's not always a single, clear legal answer to every case.
  • Hart's Counter-Argument (against extreme realism):
    • Law is not merely what a judge pronounces.
    • People follow rules constantly due to an "internal point of view" (as discussed in lectures on Hart), without constant guidance from legal officials.
    • Citizens, through their internal point of view, actively apply a certain code of conduct and adhere to the legal system, making it work, not just judges.
    • This suggests law isn't entirely indeterminate; there are clear cases where rules are consistently followed.
  • "Weak Discretion": In cases where the law is unclear or "hard," there is room for a judge's moral or political views. However, this discretion should be guided by the general principles underlying a specific legal system, rather than simple political discretion of the judge.
  • Empirical Observation: To understand law, one must observe it empirically and situate it within its social context.
  • Law's Interconnectedness: Law is not a "pure subject" separated from politics, economics, or morality; it's intricately connected to these aspects of society.
  • Motivation for Adherence: Most people follow rules and adhere to the legal system not primarily out of fear of sanctions, but due to internal acceptance and the internal point of view.

Critical Legal Studies (CLS)

  • Origins and Context:
    • Arose from dissatisfaction with legal scholarship in the US during a period of radicalism, youth counterculture, and popular rebellion of the 1960s and 1970s.
    • Shared skepticism with legal realism concerning the perceived "orthodoxy" or mainstream legal theory of the time.
    • More radical and had wider objectives than legal realism, aiming to challenge the fundamental black-and-white choices presented by dominant legal and political systems (e.g., liberalism vs. other systems).
  • Core Commitments:
    • Exposing law's inherently ideological nature.
    • Pursuing a more egalitarian society.
  • Rejection of Value-Free Law: CLS scholars reject the idea of presenting a value-free model of law, directly opposing views like Kelsen's "pure theory of law." They argue that legal reasoning is never neutral but is always influenced by a jurist's personal biases and social background.
  • Critique of Legal Liberalism:
    • Challenge to Individualism: Critiques the liberal focus on individual rights, autonomy, and the notion that individuals are rational, free, and equal actors making choices without coercion (e.g., in contract law).
    • Formal vs. Practical Equality: Highlights that formal equality (e.g., "the law is the same for everyone") does not translate into practical equality in reality, particularly in areas like property law or civil law.
    • Social Construction of Reality: Argues that reality, including legal reality, is "socially constructed" rather than an immutable product of nature. This means power dynamics and social agreements define what is considered real.
    • Law as a Tool of Power:
      • Law is not neutral; it's ideologically and politically charged.
      • It facilitates a specific "order of things," presenting certain arrangements as "natural" or "normal" even when they serve particular interests or groups.
      • Law is used to solidify, ratify, and perpetuate existing power relations and social imbalances.
      • It can be used to subordinate people to other people, legitimize the status quo, and benefit dominant social groups.
    • Gabel's View on Legal Reasoning: Quotes Gabel, suggesting that the function of law is to give individuals the impression that the system operates according to normative rules, thus indoctrinating and motivating them within a system often driven by power imbalances. Law functions as "collective terror and coercion" masquerading as justice.
  • The Gap Between Promise and Reality:
    • CLS emphasizes the significant gap between the promise of law (e.g., equality, freedom for all citizens, like former slaves) and the reality of its application.
    • This gap revolves around various social markers such as income, gender, and race, which often become "legal markers of subjection."
    • These markers can intersect, creating complex layers of inequality (e.g., in contract law, the illusion of fairness can mask open coercion or significant disparities in bargaining power).
    • Example: The rise of consumer law in the 20^{th} century is an attempt to compensate for the power imbalance between corporations and consumers, illustrating a societal recognition of these disparities.
  • Offshoots and Influence: CLS spawned various movements and theories that share its core critique of law's ideological nature and its role in perpetuating inequality, including:
    • Critical Race Theory
    • Feminist Legal Theory
    • LatCrit Movement (Latin American perspectives on law)
    • Queer Legal Studies
    • All these offshoots aim to deconstruct what is considered the "natural" or "normal" order of things and expose how law facilitates specific power structures.

Comparison: American Legal Realism vs. Critical Legal Studies

  • Shared Ground: Both are skeptical of legal orthodoxy (mainstream legal theory).
  • American Legal Realism:
    • Focus: Courts and judicial behavior.
    • Approach: Very empirical, pragmatic, focused on "law in action" (what actually happens in court).
    • Central Concept: Rule skepticism, which has two main subcategories.
  • Critical Legal Studies (CLS):
    • Focus: Law, ideology, and politics.
    • Approach: More theoretical, critical, political reflection on the flaws of law.
    • Central Concepts: Legal indeterminacy, contradictions within the law, and a call for change in the "current order of things."
    • Role of Law: Focuses on law's role in ratifying existing imbalances, legitimizing power, and facilitating specific power dynamics.

Conclusion and Practical Advice

  • These schools of thought should be regarded not just as abstract theories but as invitations to look at law critically.
  • Critical examination should consider the biases of judges, prejudices of jurors, and the impact on citizens whose contracts and lives are shaped by inherent inequalities.
  • This critical approach to law is valuable throughout legal studies and careers.

Exam Information

  • There is conflicting information regarding the exam duration: one source states 1 hour 50 minutes, while another email indicates 2 hours 30 minutes.