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1

What are the key attributes of positivism?

Key Idea: Law and morality are separate and distinct

  • Law comes from a sovereign or state
  • Law is a set of rules or commands
  •  Legal sources of social ordering are separate and distinct from other social norms
  • Law is human-made, a social construct, so it can be described and understood
  • Is a descriptive theory

 

2

What are the key attributes of Natural Law Theory?

Key Idea: Law must be based in morality

  • Legitimacy of laws comes from sovereign or state compliance with higher order norms (either derived from religion or the natural world)
  • Legal rules are grounded in an overriding set of moral principles
  • Legal rules that are inconsistent with these principles are not really law and do not have to be followed
  • Theoretical shortcomings of natural law in a secular and multicultural society

3

What are the key attributes of Feminist Legal Theory?

Key Idea: Promting legal recognition of women's equality

  • Original focus on formal equality – equal recognition of rights for men and women under the law
  • Shift in focus to substantive equality – e.g., do employment laws discriminate?
  • Liberalism movement – many feminists reject this movement because it leaves women out of its belief that everyone should be equal (concerns the well-established feminist argument that the public/private distinction tends to insulate the private sphere from regulation and thereby contributes to women's subordination in that sphere)
  • Contemporary feminism -- Legal system is paternalistic and male-centered; Vague notions of "policy," "common sense," or "human nature" have also found their way into law and been used by judges to preserve male privilege

4

What are the key attributes of  Legal Realism?

Key Idea: Law is not free of moral and political influence, so we need to understand that

  • Precursor to CLS
  • Basic premise: law is imperfect and frail because it is human-made
  • Oliver Wendell Holmes: “The life of the law is not logic but experience” – The life of the law includes people’s experiences, not neutral vacuums. Law evolves as a consequence.
  • Focuses on the inability of legal rules to be sufficiently precise to conclusively determine the outcome of legal disputes
  • Attempts to identify non-legal factors that influence legal decision-making and embed them within legal argumentation

5

What are the key attributes of Critical Legal Studies?

Key Idea: Law institutionalizes and legitimizes the authority and power of particular social groups or classes; law is simply another form of politics

  • Rejects notion that there is any kind of “natural legal order” discoverable by objective means
  • Direct descendant of legal realism
  • Any articulation of a rule was subject to multiple interpretations
  • Calls into question the autonomy of law from broader social and political considerations
  • The rule of law is indeterminate, full of subjective interpretation and a large degree of incoherence
  • CLS holds that individuals are tied to, and part of, such things as their communities, socio-economic class, gender, and race to the extent that they are not autonomous actors. Rather, their circumstances determine and therefore limit the choices presented to them.

6

What are the three key stages in applying Critical Legal Studies to legal thought?

  • Hegemonic consciousness – Western laws are driven by a system of beliefs founded in a liberal, market-driven economy and reflect only the transitory, arbitrary interests of a dominant class
  • Reification – beliefs are reified into a material thing: they are presented as essential, necessary and objective
  • Denial – laws and legal thinking aid in the denial of real truths. The denial occurs between the promise of a certain state of law—such as equality—and the reality, such as the vast amounts of discrimination or racism that can be found so readily in society if we only look

7

Is Positivism descriptive or normative?

Descriptive

8

Is Natural Law Theory descriptive or normative?

Descriptive

9

Is Feminist Legal theory descriptive or normative?

Normative

10

Is Legal Realism descriptive or normative?

Descriptive

11

Is Critical Legal Studies descriptive or normative?

Normative

12

Is Law and Economics theory descriptive or normative?

Both descriptive and normative

  • Descriptive in that it's seeling patterns and trying to define trends in existing law
  • Normative in that it has a goal -- efficiency

13

Is Public Choice theory descriptive or normative?

Descriptive and normative

  • It's an offshoot of law and economics theory, so is descriptive in the sense that it's trying to identifying patterns and trends in existing law, but it also has the goal of efficiency.

14

What are the key attributes of Law and Economics theory?

Key Idea: Explains legal doctrines with reference to wealth maximization and economic efficiency.

  • Uses cost-benefit analysis to shape laws
  • Applies traditional economic methodology to legal rules to assess efficiency.
  • Came out of Chicago School in 1970s, which had a strong, free-market, neo-liberal philosophical base. Justice Posner is big proponent.
  • Pareto optimality – situation where the welfare of all parties can’t be increased any further without being detrimental to one party. Goal is increasing the welfare of everyone.
  • Assumption is that policy makers will act in order to maximize their political support rather than to maximize social welfare or in other ways.

15

What is Pareto Optimality and with which theory is it associated?

Associated with Law and Economics theory

Pareto optimality – situation where the welfare of all parties can’t be increased any further without being detrimental to one party. Goal is increasing the welfare of everyone.

16

What are the key attributes of Public Choice theory?

Key Idea: About self-interest and incentives

  • Offshoot of law and economics theory
  • Focus on tendency of political actors to concentrate benefits and disperse costs
  • Promotion of institutional choices that counter this tendency
  • Assumes that public servants, like people generally, are largely driven by their own self-interests
  • Both descriptive and normative