Legal Theories (Week 4) Flashcards
Define natural law? what are its advantages and its weaknesses?
What does “lex iniusta non est lex!” mean?
Universal law that pre-dates humanity - God given
Content of law is more important than its form
plus - law must have some moral content
minus - whose morality is best is difficult to define, less stable and less predictable
Meaning: An unjust law is no law at all!
Critique of natural law today? ex of nat law today?
Law cannot be based on absolutes, must be adjustable
Shift from what is moral to what works
ex: US constitution, Universal Declaration of Human Rights
What is legal positivism? What are the plus and minus?
Law as science, should promote predictability, calculability and stability
Valid law = valid process - places form of law over content
Sees law as autonomous from other orders (apolitical)
Plus - Pred.Calc and flexible
Minus - immoral, racist, sexist
ex: apartheid and Indian act
The social contract and the doctrine of parliamentary supremacy are important to what from of legal theory?
Positivism
Define legal realism? What are some of the theory’s assumptions about law?
Asks about the pragmatic concerns of law - what it do baby
People need to study the context in which law emerges and is applied - law on the books vs law in practice
Law is NOT apolitical
Turn to social sciences to reveal effects of law
What are the plus and minus of legal realism?
Plus - non-idealized law, better reflects idea that law exists in a web of relations
Minus - because it is a method, no coherent vision of what law ought to be
Explain the early Marxist approach? What does he think bout capitalism?
Societies are fundamentally divided (by class)
Laws are a reflection of economic conditions - relations
Capitalism is internally contradictory and is destined to fail, resulting in communism - state and also law will simply whither away, there will be no need for coercion after revolution
According to Marx, ho does law allow the bourgeoisie to maintain dominance?
What are the plus and minus of his views?
Hint: there are 2 ways
- through force (coercion)
- through ideology (consent)
Plus - recognizes inequalities in society/unequal distribution of resources
Minus - inequality limited to economic inequality, law is only ever a tool fr oppression
Explain critical legal studies? where does it have its roots?
How does CLS view law?
Roots in Marxism
Critical of mainstream legal field and doctrinal approach to law - privileging of legal actors in practical experience of law
As a tool for the elites - any theory of law that excluded particular groups of interests was ignorant
What is critical legal theory a mix of?
What does it reveal about law?
What are its plus and minus?
Mix of Marxists and Legal Realism
Explicitly political, views neutrality as an illusion
Shows law’s indeterminacy - cannot cover all situations
Plus - looks at assumptions on which law is based
Minus - no consistent direction (like realists) to fix things
No StaCalcPred
Define Feminist approaches to law?
Law from male perspective enforces patriarchy
Law’s treatment of women reinforces stereotypes and constructions
Raises consciousness, advocates practical changes
Demonstrating tactics of othering and how law produces an “outside”
What are the plus and minus of feminism?
Plus - recognizes how law is not neutral, shows limits of simple formal equality
Minus - no firm agreement on how law should be understood or how law should be addressed
Explain Critical Race Theory? What is intersectionality?
what are the plus and minus?
Law stabilizes a system of racial inequality
Intersectionality - addresses the impact of multiple points of discrimination
Plus - role of race in foundations and operation of law, highlghts role of multiple forms of discrimination
Minus - Lack consistent method and focus
What is law and literature?
Focus on rhetoric and legal storytelling
Suggests that knowledge of law can come from texts (narrative forms)
Plus - recognizes that how we understand law is culturally mediated
Minus - unclear definitions about what is and what its goals are, accused of excluding certain cultural forms and voices
What happened in the Christie vs. York Corp trial?
FACTS: Christie denied service at bar because he is black
PROCEDURAL HISTORY:
Trial: s. 33 of Quebec Licence Act “.. no restaurant may refuse service to a traveller seeking food.”, judge sides with Christie
Appeal: Private business can do what it wants to protect its interests, court rules against Christie
Supreme court: 4 2 1 in favour of York Corp, complete freedom of business owners in Quebec, s. 33 did not apply because Christie was not a traveller seeking food
DISSENT: Tavern had a duty to serve any member of the public as a licence holder
