Critical approaches to law Flashcards
Q: What is Dworkin’s approach to legal interpretation?
A: Dworkin argues that the law in a particular case should be interpreted through the “best” or “most coherent” interpretation, which has both backward-looking (fit) and forward-looking (justification) elements.
Q: What does Critical Legal Studies (CLS) argue about the law?
A: CLS asserts that the law is inherently indeterministic, unstable, and reflects power dynamics that serve the interests of the dominant economic class, especially in capitalist societies. It challenges the idea that the law can advance liberal values like equality and personal liberty.
Q: What is the historical and ideological context of CLS?
A: CLS emerged in the 1970s as an eclectic movement influenced by Marxism, American Legal Realism, and postmodern theories. It emphasizes the role of law in sustaining class domination and reflects power relationships in society.
Q: What is the influence of American Legal Realism on CLS?
A: American Legal Realism, which emerged in the 1920s-1940s, focuses on the practical application of law rather than theoretical rules. It suggests that legal decisions are indeterminate and often post-hoc, shaped by judicial decision-making rather than strict adherence to legal principles.
Q: How does CLS view the law in capitalist societies?
A: CLS sees the law as a “superstructure” that serves to maintain class domination by presenting itself as impartial, while in reality, it supports the economic interests of the ruling class.
Q: What is the connection between postmodernism and CLS?
A: Postmodernism’s anti-foundationalist approach influences CLS by suggesting that meaning is unstable, and there are no absolute standards of truth or justice. Textual meaning is always in flux, and binary oppositions (e.g., male/female, good/evil) shape how we interpret law and society.
Q: What role does Marxist theory play in CLS?
A: Marxist theory views law as part of the “superstructure” that maintains class power. It suggests that laws, like the fiction of “freedom of contract,” mask economic exploitation and inequality by presenting them as natural and immutable.
Q: What is CLS’s view on legal doctrine?
A: CLS theorists argue that legal doctrine is internally inconsistent and contradictory. For example, in contract law, the principle of individual bargaining contradicts concepts that favor the welfare of weaker parties, such as unconscionability and undue influence.
Q: How does CLS view judicial decision-making?
A: CLS claims that judicial decisions are shaped by ideological biases and class interests rather than objective legal principles. Judges are seen as part of the elite, making decisions that protect the propertied interests of the ruling class.
Q: How does CLS differ from Dworkin’s approach?
A: Dworkin argues that constructive interpretation is possible and that legal interpretation can be done in a coherent and normative way. CLS, in contrast, asserts that legal materials are contradictory and that judicial decisions are influenced by the ideology of the ruling class, not objective legal principles.
Q: What is a critique of CLS regarding social transformation?
A: CLS critiques the law’s role in achieving social transformation. If judges always act in favor of the ruling class, it raises the question of how the law can facilitate social change. To achieve this, CLS scholars often look to other critical theories like feminist legal theory or critical race theory.
Q: What is one critique of CLS from Dworkin?
A: Dworkin argues that CLS exaggerates the inherent pluralism in law, and that values can be ranked and justified, allowing for constructive interpretation of legal principles.
Q: How does feminist legal theory differ from CLS?
A: While both reject law’s neutrality, feminist legal theory focuses on gender oppression and patriarchy, whereas CLS focuses on economic class oppression.
Q: What are the two main models of liberal feminism?
A: (1) Formal equality model: Legal equality achieved by treating men and women identically. (2) Substantive equality model: Legal equality that takes into account material conditions and seeks to ensure equal dignity and respect.
Q: What is the “reasonable man” test in self-defense law?
A: It is an objective standard used in self-defense cases that asks what a “reasonable man” would do in a given situation, often failing to account for the gendered realities of women in abusive relationships.
Q: What does feminist legal theory generally claim about women and the law?
A: Feminist legal theorists argue that women are subordinated through the law, which reflects, maintains, and legitimizes patriarchy.
Q: What is the difference between the “ethics of care” and the “ethics of justice”?
A: Women tend to focus on relationships, needs, and context (ethics of care), while men are more likely to focus on abstract rights and justice (ethics of justice).
Q: What is the stance of Radical Feminism regarding the law?
A: Radical feminism argues that the law enforces gender domination and true equality is only possible by dismantling the patriarchal system that underpins the law.
Q: Why does MacKinnon reject liberal and difference feminism?
A: She believes that the law is inherently male and cannot achieve gender equality because it is structured to enforce male dominance, and gender oppression cannot be eliminated through reformist approaches.
Q: How is intersectionality recognized in Canadian law?
A: Intersectionality is recognized in Canadian law, where discrimination claims that intersect multiple grounds (e.g., gender and race) are treated as distinct and complex.
Q: What does Critical Race Theory (CRT) critique about the formal equality model?
A: CRT critiques the colour-blindness approach, arguing that the law’s official blindness to race perpetuates white privilege and inequality, rather than addressing the structural nature of racism.
