Updated: Sep 25
What are other legal theories are there? Law, rules, sovereigns seem to be quite dull... Are there any other EXCITING theories?!
opposes formalism (law is determinate)
two types of realism: American (rule-sceptic) and Scandinavian (metaphysic-sceptic)
seen as behaviorist - "outward manifestation of mental processes"
founding father, Oliver Wendell Holmes
"The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified..."
obsessed with the empirical effects of the law
law is in flux/moving
law is a means of social ends rather than ends itself
concedes that law is neutral and embraces liberalism
identifies two types of law (Formal and Grand)
Grand Style - judges are more considerate of policies (favored by him)
Formal Style - judges relying on rule of law
six 'law-jobs' are needed as well as crafts (i.e., practice of the law)
differentiates fact-sceptic (i.e., elusive facts in trial) and rule-sceptic (i.e., rules are not certain)
Criticisms of American Realism:
some argue that this is prone to tyranny
Brian Leiter: Realism is a 'jurisprudential joke'
Critical Race Theory
law is indeterminate and rejects that law is neutral and liberalism
legal thought is a form of 'denial' - contradictions that are too painful for our human mind
main beliefs demonstrated through opposing Roberto Unger:
indeterminacy - no certain law
contradiction - there is no dominant law view, instead many contradictory point of views
marginalism - law is not a decisive factor
Postmodernism Legal Theory
does not believe in the universal values/'metanarratives'
new pragmatism: it has down-to-earth goals (political, ecological, and economic)
reject the idea of 'subject' and 'object'
Jacques Lacan (1901-81): "unconscious is structured like a language"
Justice is only "fantasy" that obscures the impossible goal of a "harmonious community"
How does women play a role in law?
believe in the equality of law between women and men
especially emphasize in equality within employment
being criticized by radical of not relieving women from subjugation in the private domain (i.e., housework, etc.)
believe in the domination of power - currently patriarchal society
concern of legal consequences
"The injustice of sexism is not irrationality; it is domination."
revealing miscellaneous discrimination against women (e.g., criminal, tort, etc.)
focuses on the 'maleness' of law
devised three steps for feminist legal method:
'Ask the woman question': expound on rules that seem to be neutral but actually has 'gender implications'
'feminist practical reasoning': challenge the law's claim of having a majority
'consciousness-raising': highlight women's subjugation
Critical Race Theory
attack against law which innately reflects the opinions of 'privileged, elite, male, white majority'
The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.
P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!