Law 121 Part One:Concepts of Law Legal Realism & Critical Legal Studies

KennyYu

提供给正在学law121的同学，
USE　ＡＳ　ＲＥＦＥＲＥＮＣＥ ONLY
COPYRIGHT INFRINGEMENT IS ILLEGAL



Law in context : Legal Realism & Critical Legal Studies
What was ‘realist’ about the legal realist school, and what aspects of ‘reality’ did they focus on?
The ‘ought’ defined by law is blindly taught as the ‘is’. As a result the teaching of the law is usually the perpetuation of a myth.
Two models of society:
Consensus Models:
Roscoe Pound : urged that in a democratic society, the values of the law ought to respond to the values of those to whom it applied.
Talcott Parsons: exactly the same as Pound and also made four principle assertions
o        Every society is a relatively persisting configuration of elements.
o        Every society is a well-integrated configuration of elements.
o        Every element in a society contributes to its functioning.
o        Every society rests upon the consensus of its members.
Conflict Models:
Ralf Dahrendorf:
•           Every society is at every moment subject to change
•           Every society experiences at every moment social conflict
•           Every element in a society contributes to its changes
•           Every society rests on constraint of some of its members by others.
Also he asserts that it is impossible empirically to choose between these two sets of assumption. Each  model may be useful to explain specific aspects of social process.
Indeed, the empirical studies make it quite clear that the value consensus model is not only incapable of accounting for the shape and character of the legal logically relevant questions about the law. The conflict model by contrast while having many shortcomings and not providing a complete answer to the questions raised by the study of law, is nonetheless much more useful as a heuristic model for analysing legal systems.
               
How does legal realism differ from natural law, positivism and tikanga Maori?
They deny the naturalist and positivist view that judges are influenced mainly by legal rules; realists attach greater significance to political and moral intuitions about the facts of the case.
The realists were preoccupied with empirical questions (attempting to identify the sociological and psychological factors influencing judicial decision-making,) ,yet their implicit conceptual loyalties were positivist. But, though they accept, along with the positivists, the need for a scientific analysis of law , the realists reject the single avenue of logic and seek to apply the numerous avenues of scientific enquiry, including sociology and psychology. Difference between positivism and realism  is:  this realism is an impatience with theory, a concern with law ‘as it is’, and a preoccupation with the actual operation of law in its social context .
Do you think New Zealand society is closer to the consensus or the conflict model?
Does that depend on who you are?
Did the legal realists take a consensus or conflict view of society and the role of law?
Why do you think the legal realist school arose in the United States and Scandinavia, and had less support in the United Kingdom (and Australia and New Zealand)?
Critical Legal Studies view:
Law is indeterminate; outcomes are not deduced from the law, but are arbitrary . Also perpetuates social inequality.
•        Law is shaped by society & society is shaped by law through human actions
•        Law is part of the State’s political framework
•        Law reflects and reinforces dominant social, economic, cultural, gender values & interests
•        ‘Objectivity & science’ disguise dominant interests & discredit alternatives
•        Law’s framework was designed & developed to reflect & protect the interests of capitalism, patriarchy & eurocentrism
•        Enforcing inequality of power
CLS and Realism:
Realists also made claims about indeterminacy. But the two schools differ.
American realist method:
American realism is powerfully informed by a behaviouralist view of law. Llewellyn suggests that the focus of study should be ‘shifted to the area of contact, of interaction, between official regulatory behaviour and the behaviour of those affecting or affected by official regulatory behaviour’.
Comments on American realists:
The American realists exhibited a narrow empiricism: ‘a vast amount of energy was burnt up in the collection of data’. According to Hunt, empiricists believe incorrectly that the collection of data is a sufficient condition for the development of a social science method. ‘Data collection becomes an end in itself; it becomes a purposeless and undirected activity.’
Anyway, the realist challenge to the autonomy of law was certainly an important precursor of the critical legal studies and postmodernist approaches to law.
According to Twining’s view that the main achievement of the realist movement was to concretise sociological jurisprudence.

魑魅魍魉

支持小kenny的帖子！！！！！！！！！！！！！！！！！！

蓝蜗牛382

好心的楼主 支持你。

当初我学的时候没有那么慷慨。怕别人考的比我好。。
我自己面壁去了。。