CRITICAL LEGAL STUDIESLaw, Power and Hierarchy :

Does the law just perpetuate a hierarchy of power that favors some over others?

RULE OF LAW REQUIRES JUDGES TO APPLY LAW REGARDLESS OF JUDGES’ OWN IDEA OF GOOD PUBLIC POLICY

Critical Legal Studies challenges the simple application of Rule of Law.

“Critical Legal Studies (CLS) emerged during the 1970s as an attack on mainstream ideas about law and legal institutions. The attack came from the perspective of radical left-wing politics and had as its ultimate aim the fundamental transformation of society”

CRITS ARGUE THAT…. Society is riddled with hierarchies of power,

making some dominant and others subordinate

Hierarchies are not legitimate if the power cannot be justified (it’s MIGHT rather than RIGHT)

Many hierarchies in our society ARE illegitimate:

E.g., capitalist bosses over workers Judges over litigants Lawyers over clients Teachers over students Adults over children Whites over non-whites Men over women

LAW IS A TOOL TO MAINTAIN POWER OF ONE GROUP OVER ANOTHER…. CRITS DENY THE EXISTENCE OF THE RULE OF LAW – IT’S A SHAM

Crits say the law serves the interest of the powerful

Law in practice is just a tool the powerful use to control the powerless

“Crits argue that it is a fundamental mistake to think that we should rely on the rule of law to combat illegitimate power, be it the “public” power of government or the “private” power of institutions like corporations

Query – Can we relate this idea to current events?

CRITS, RADICAL FEMINISTS AND CRITICAL RACE THEORISTS COMPARED

All three think society consists of illegitimate hierarchies that oppress, and that the law helps maintain that oppression

Differences: (1) Fems and CRTs focus on gender or race only,

CRITS don’t think one type of oppression deserves privileged status over other types of oppression

Fems and CRTs say law is used to oppress a gender or race; CRITS say rule of law is an impossible fiction, that politics rules

CRITS seek to discredit legal reasoning and thereby delegitimize the law that supports society’s illegitimate institutions and practices

LEGAL REASONING: A MAINSTREAM ACCOUNT – AUTHORITY AND LEGAL REASONING

Law and authority:Some decisions must be made uniformly by

society, e.g., which side of the road you drive on

Democratic society makes collective decisions for the benefit of all through elected representatives

It is appropriate that these collective decisions preempt individual decisions that conflict

LEGAL REASONING ASSUMES THAT DECISIONS THAT MAKE UP THE LAW ARE NOT ARBITRARY

Motivational reasons are “why” you do something; justifying reasons show whether the decision was right or wrong. Legal reasoning assumes JUSTIFICATION, not just motivation – this is what makes it rule of law rather than arbitrary

Because legal reasoning requires justification, such reasoning should allow for exceptions when a rule literally applied yields an unreasonable result – look at the reasons or policies behind the rule

THE DOCTRINE OF PRECEDENT: STARE DECISIS Legal reasoning must be consistent from case

to case, hence stare decisis – rulings judges follow in future cases involving the same issue

Legal reasoning involves general principles, so legal reasoning may clarify or elucidate prior authority as applied to specific circumstances

Precedent can be changed if it appears the reasoning no longer justifies the result (e.g. Brown v. Board of Education), but precedent should not be changed without compelling reasons

DURING THE 1900S, THE TRADITIONAL VIEW BEGAN TO BE ATTACKED – LEGAL REALISM

Legal formalism claimed we just apply rules, like a formula and out pops a decision

Legal realists claimed personal and political considerations influenced reasoning and “some way could almost always be found to get around precedents one did not like.” Query – is this true?

Realists said labor v. capital, claiming that judges deciding labor disputes always decided with the owners against the workers.

INDETERMINACY – HOW MUCH IS THERE?

“If the law is mostly indeterminate – if most issues and questions have no determinate answer – then the whole idea of legal reasoning begins to look very dubious.”

Formalists say there is very little indeterminacy; realists say there is a lot.

“No reasoning regarding the law can proceed on the assumption that society’s authoritative decisions are to be followed if those decisions are as empty as the more radical realists say.”

Realists say judicial decision-making is all politics

SO LONG, STARE DECISIS…. “For both radical and moderate realists, one big

problem with stare decisis stems from the fact that similarity is in the eyes of the beholder.”

“Precedents can be interpreted very broadly or very narrowly or somewhere in between, and there is no single, legally correct way of determining exactly what a precedent has decided.” (holding v. dictum)Query – is this true?

e.g. do laws prohibiting homosexuality violate privacy? Bowers 1980, majority says no, dissent says yes, both cited precedent – if precedent is so clear, how can there be such strong disagreement?

Legal realists say “it is not that one side is legally right and the other wrong. There is no correct legal answer and no way of reasoning to any such answer.”

Query – is this true?

LEGAL REALISM DIED OUT AFTER WWII, BUT LEFT A LEGACY…..

“Many mainstream thinkers conceded … that a certain amount of indeterminacy existed in the law; on some legal questions, society’s authoritative decisions simply had no resolution, since the legal rules and precedents were too unclear or ambiguous or conflicting. On such questions… judges had no choice but to go beyond the law and legal reasoning and to make decisions based on moral or political considerations.

A LITTLE REALISM IS A GOOD THING….REALISM BECOME PARTLY MAINSTREAM..

Mainstreamers argued “legal rules needed to have some flexibility and adaptability built into them, so that judges could adjust them to changing social conditions.”

query – is this true?

LEGAL REALISM REVIVES IN THE 1970S – BUT ON STEROIDS! THE CRITS…. “Because of vagueness, ambiguity, conflicts,

and gaps within the body of rules and decisions, realists argued, judges could decide for either side in virtually any case and support their decision on the basis of existing rules. The crits agreed but… sought to explain why there were conflicts within existing rules.”

Query – why do you think there are conflicts?

IRRECONCILABLE POWER STRUGGLES… ‘The crits argued that underlying the body of

authoritative decisions and rules were fundamentally incompatible moral and political viewpoints. The rules and decisions were in conflict because they were expressions of deeper views about right and wrong, good and bad, that were themselves in irreconcilable conflict.” So judges make political decisions.

Evidence: moral or political views are NEVER carried to their logical conclusion, e.g. “the state cannot criminalize the use of contraceptives or the viewing of sexually explicit materials in private. But the principal is not carried to its logical conclusion: we do permit government to prohibit the possession and use of marijuana in the home.”

MORE EVIDENCE…. In the 90s, Colorado amended its constitution

to prohibit state or local laws against discrimination based upon homosexuality (in other words, it was illegal to pass laws protecting homosexuals against discrimination) Su. Ct. said “ a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” and violates equal protection. Why didn’t this reasoning apply in Bowers case in the 80s that involved a statute criminalizing homosexuality?

CRITS’ ANALYSIS OF “NO DUTY TO AID” Under common law, there is no duty to aid

another absent a contract or statutory obligation Crits say this (1) this is a policy judgment favoring

individualism over altruism (2) both individualism and altruism (exceptions to

the no duty to aid) appear in the law, but neither is carried to its logical conclusion

(3) exceptions are so elastic they make the rule meaningless (e.g., duty to aid if you caused the harmful situation or have a “special legal relationship, e.g., lifeguards, parents, psychiatrist told by patient he plans to kill has duty to warn victim)

Query – social host liability?

LIBERALISM AND THE RULE OF LAW Author’s definition of “liberalism refers to an

approach that takes individual liberty as a value of central importance. According to liberalism, society must be organized so that each individual has a wide area of freedom in which to decide for him or herself how to live and that zone of freedom must be equal for all individuals.”

Rule of law is essential because “individuals may disagree with one another over values, but if they agree to obey society’s authoritative decisions, then they can live and work together in peace and freedom.” Therefore, there “must be some method of determining what those rules require and that method must filter out value disagreements that divide people.”

WHY LEGAL REASONING IS KEY TO LIBERALISM…. ‘The idea that such a method is possible is

precisely the idea that legal reasoning is distinct from moral and political decision making. If there were no such method of reasoning, then the disagreements that individuals had with one another over values would generate disagreements over the meaning and application of the rules that they had agreed to obey.”

“in that case, it would be FUTILE to turn to the rule of law in order to establish peace and freedom. The agreement to obey the law would be practically meaningless, since each individual would decide what the law required in a way that reflected his or her own values.”

ROBERTO UNGER’S VIEW….. (CRIT)

“Unger contends there is no value-neutral process for enacting society’s authoritative rules; any process will favor some values over others.”

This means persons whose values are not favored have good reason to reject the process as unfair to them, and they will likely refuse to agree to obey the rules that are enacted.

THE MAINSTREAM RESPONDS…

CRITS FOSTER CYNICISM AND DISRESPECT FOR THE LAW.

CRITS’ ANALYSIS IS DISTORTED BECAUSE THEY FOCUS ON THE MOST CONTROVERSIAL LEGAL CASES – MOST CASES DECIDED ON PRICIPLES VIRTUALLY EVERYONE AGREES UPON

RONALD DWORKIN…. The body of law is coherent and consistent –

rather than contradictions we have competing interests (query – security v. 4th A; public safety v. 1st A

Legal reasoning does provide justifying reasons

Legal reasoning must generally respect society’s authoritative decisions and accept what those decisions have settled.

The Bower case was just a mistake – courts make mistakes, that doesn’t mean everything is arbitrary.

Realists and mainstreamers don’t recognize that when law is not clear, judges look for the strongest moral and political principles that can justify its authoritative decision

THE END