Understanding Jurisprudence Flashcards
Critical legal theory.
- in 1970s in USA (Marxims + American realism)
- law is uncertain, ambigous
- law reflects political and economic power
- law is neither neutral norl not objective
- equality under rule of law is illusory
- social justice is undermined by the power strucures embedded within the law
- law legitimises power by presenting it as a natural and apolitical
- methods - trashing, deconstruction, historical analysis
a) hegemonic consciousness (Gramsci)
b) reification (Marx)
c) denial (Freud) - principles of law
a) indeterminacy
b) anti-formalism
c) contradictions
d) marginality - critical legal theory fails to propose some new social order instead the one that it totally denounced and crushed
Postmodern legal theory
- rejection of universal values (equality, justice, Enlightnment ideas)
- focus on individual experience rather than grand narratives
- Jacques Derrida (deconstruction; différance - meaning is deferred and arises from difference, not intrinsic qualities)
- Jacques Lacan (identity is shaped by language and remains fragmented and unstable; subject of statement; subject of enunciation)
- Chantal Mouffe (we should embrace the absence of ultimate societal foundations)
- challenges traditional notions of law, rights and identity, bringing instability
Critical race theory
- emerged in late 20th century
- response to critical legal studies and civil rights scholarship
- critiques of liberalism (colorblindness and affirmative actions might actually perpetuate systemic inequalities)
- storytelling
- structural determinism (examines how legal systems reinforces power hierarchies)
- intersectionality (explores how race, gender, class intersect to create unique forms of discrimination)
Hohfeld’s frameworkof legal rights.
- jural correlations (owner of right vs. 2nd party) and opposites (referrs to owner)
- pure right (X has right; Y has duty to respect it)
- privilige (X has privilidge to do whatever they want with their ownership; Y has no right to do anything)
- power (X has the power to change legal status; Y is liable to respect it)
- immunity (X is immune to change of legal relationship; Y is disabled to change the legal relationship)
Theories of rights
A. Interest theory (rights protect interests of individuals; rights are justified when protecting a specific interest is sufficient reason to impose duties on others)
B. Skeptical theory (it is not possible to find an “absolute foundation of human rights”, because human rights depend on cultural history and context)
C. Intuitionist theory (human rights are like a dogma; all humans have inalianable rights which is self-evident)
D. Ontological theory (human have rights becuase of their special nature that makes them different from animals - rationality and freedom)
E. Will theory (rights protect the ability to make choices; rights entail both the power to waive or enforce duties on others)
Rights according to Dworkin.
- rights as trumps (rights are fundamental and take precendents over collective goals or welfare)
- human dignity
1) principle of intrinsic value (equal importance of all human life; each human life has a value as a potentiality)
2) principle of personal responsability (each person is responsible for realising their own successful life)
Other views on rights.
- Communitarianism (human rights prioritise individualism at the expense of community values; empahsise collective welbeing over individual rights)
- Relativism (cultural and ethical relativism; human rights are not universal, but shaped by local culture, history and social or political contexts)
- Utilitarianism (individual rights are suobrdinate to general welfare; individual rights are only secondary to collective goals)
- Socialism (individual rights conflict with socialism’s communitarian goals)
- CLS (rights are tools to preserve existing power structures; rights mask real inequalities and maintain systemic oppression)
Aristotle’s theory of justice.
- just and unjust behaviour can be understood through reason
- emotions help in determing what is (un)just
- justice is an ethical virtue -> Golden Mean (middle ground between 2 extremes)
- happiness (eudaimonia) can be achieved by cultivating virtues and practical wisdom
A. Corrective justice (issued by court, retributive justice)
B. Distributive justice (fair distributions of resources based on merit)
Rawl’s theory of justice and fairness.
- justice is prerequisite for good
- original position = hypothetical scenatio where individuals, behind the veil of ignorance, choose principles of justice without knowing their social position
1) Equal basic liberties - everyone has equal rights to fundamental freedoms
2) Difference principle - inequalities are permissable only if:
a) they benefit the least advantaged
b) arise under fair equality and opportunity
Feminist strands.
A. Liberal (gender-neutral laws, treating men and women the same)
B. Radical (focuses on systemic oppression and male dominance; critiquestion male-defined norms and societal structures; questioning the ability of male-created law to achieve genuine equality)
C. Postmodern (rejects fixed definitions; analyses embedded concepts; focuses on gender-neutral norms and how they reinforce discrimination)
D. Difference (highlight inherent gender differences; ‘ethic of care’ emphasis on relationships over abstract justice)
Law and social theory.
- understanding law requires sociological analysis rooted in social conditions that shape legal ideas and practices
1) law is a social phenomenon
2) legal concepts provide only partial understanding of law in action
3) law is one of several forms of social control
A) social structure
B) social statufications
C) social function
Roscoe Pound; Èmile Durkheim; Eugen Ehrlich
Roscoe Pound
- law in book vs. law in action
- social ingineering (law is a tool to maintain social cohesion by protecting ‘intersts’)
- theory of interests (individual, social, public interests)
- intersts need to be balanced, but only on the same level
Eugen Ehrlich
- introduced the concept of ‘living law’
- norms of decision (codified rules enforced by courts)
- living law (norms governing daily life that lies outisde formal systems)
Èmile Durkheim
a) mechanical solidarity (simple, homogenou societies)
b) organic solidarity (complex, diversified societies)
- act is criminal because it offends collective moral sentiment -> punishment reinforces collective conscience by expresing societal norms
- evolution of crimes - religious (agains community) to ciriminal (against individuals)
- evolution of punishment - physical (harsher) to deprivation of liberty (milder)
Max Weber
- 4 stages of development of law
1) charismatic revelation
2) empirical law creation
3) imposition by secular/theoratic source
4) formal law and legal procedures - 3 types of legal domination
a) traditional
b) charismatic
c) legal-rational - power = ability of individual to impose their will on others, even against resistence
- domination = institutionalised form of power, where commsnds are voluntarily obeyed because they are perceived as legitimate
- law effects economics (capitalism) indirectly (provides stable set of rules for the protection of contractual expectations)
Karl Marx
- materialism = all processes and events are reducible to material objects, their changes and movements
- historical materialism = human beings transform world through material activity and historical processes, not through ideas
- dialectical materialism = each period of economic development has a corresponding class system
- material base = foudation of society, holds forces of production (means and knowledge); relations of production (enabling exchange of labour and wage)
- ideological superstrucutre = includes elements like culture, religion, education, media, law; maintains the dominance oer base through law
- law is a tool for perpetuating dominance of burgeoisie over proletariat, individual rights protect private property which symbolises capitalist values, regulates economic elations to sustain capitalist system
- fetishism = material objects are attributed with social properties and power beyond their intrinsic value
- reification = human relationships are reduced to relations among material things, distorting true social connections
- conflict model of society = society is devided in 2 opposite camps
Michele Foucault
- power operates through institutions to discipline individuals into docile bodies
- panopticon - metaphor for surveillance based control, fostering self-regulation through fear of being observed
- law doesn’t hold primacy, but is part of broader network of disciplinary power
- discipline shapes individuals by normalising and regulating behaviour, rendering law secondary to these mechanism
- law integrates with broader societal norms and mechanism of control
