CLS is a legal theory that challenges and overturns accepted norms and standards in legal theory and practice. They maintained that law in the historical and contemporary society has an alleged impartiality, and it is used as a tool of privilege and power. CLS is a kind of postmodern theory of law, the philosophical study of law within the scopes of postmodern theoretical outline: poststructuralist, neo-pragmatist, or post-Freudian psychoanalysis. Living in a pluralistic society, maintained by postmodern theory, means differences of the collective from wealth, gender, ethnicity, etc.
In many instances, these differences often lead to conflicts. According to Chambliss and Seidman, the myth is that the state does not take sides, that it is neutral.
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The legal order is a self-serving system to maintain power and privilege . This position is very different from Natural Law and Legal Positivism. In contrast to postmodern theories of law, there is a universal acceptance and agreement on what laws should be. However, the myth claims that powerful groups impose their will upon the collective by controlling the law inside a certain society.
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Legal Realists assert that judges hold the key to the influence of law. They further claimed that judges are guided by their interpretation of the law; however, being human means being influenced by other factors such as feelings, moods, alliances, and preferences.
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They highlight the fundamental importance of personality in the outcome of dispute. The CLS scholars used the ideas and legacy of Legal Realism that sought to challenge the existing convention in the legal system. Legal Realism is a school of legal philosophy that is generally connected with the attack on the orthodox and conventional claims of late 19th century classical legal thought in the United States .
Its most important legacy, the challenge to the classical legal claim that legal reasoning was separated and autonomous from moral and political discourse, was then used further and improved by the Critical Legal Studies. In the beginning, many proponents of the American CLS scholars are into the legal education. From these different protests against the domestic politics, CLS started off and eventually translated into a critical stance towards the dominant legal ideology of the modern Western society. Both the British and American version started roughly at the same time. The movement operated around a number of conferences held annually, particularly the Critical Legal Conference and the National Critical Lawyers Group.
Since then CLS has steadily grown in influence and permanently changed the landscape of legal theory.
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Gordon, Morton J. Horwitz, Duncan Kennedy, and Katharine A. Like most schools and movements, CLS has not produced a single, monumental body of thought. The first theme is that legal materials, such as statutes and case law, do not totally determine the result of legal disputes. The arguments take aim at the positivist conception of law being separated from politics and morality. Third is the traditional claim is that far more often than is usually suspected, the law tends to serve the interests of the wealthy and powerful by protecting them against the demands of the poor and the subaltern, women, ethnic minorities, working class, indigenous people, disabled, homosexuals, etc.
Fourth are the claims that legal materials are inherently contradictory. Finally, they question the central assumption of law that an individual, a judge or a lawyer, is an autonomous individual. That they are able to make unbiased decisions based on reason detached from political, social, or economic constraints. CLS scholars hold that individuals are intrinsically tied to their epoch, socio-economic class, gender, race, and other conditions of life, temporary or permanently.
However, as stated earlier, CLS, as a legal theory, shows different weaknesses as a critique of the legal system. One of their main claims states that due to the politics of law, its contradictory character, and other external factors, law becomes indeterminate.
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Nevertheless, this claim is grounded on the ambiguity of conflations, ideas, and concepts. This thesis will use a legal formalist logic and language critique of CLS claims of legal indeterminacy. It maintains that laws are inherently objective, stable, and therefore determinate. It states that the CLS claims of legal indeterminacy is excessive, using a legal formalist logic and language as the main counter-argument, backed by grounds as follows: inherent generality and neutrality of legal codes, reasoned elaboration, centrality and institutionalized process.
It will be done through offering counterexamples that will uphold law as an entity that is not purely politics. Although it will not dwell on CLS concerning its postmodern approach and view, it will discuss the weaknesses of postmodernism applied to legal jurisprudence, to serve as a supplementary critique to its flaws. Their approach or way of looking into the nature of law can be used to develop a viable alternative theorization that is capable of providing a new direction for legal scholarship and legal institutions as a whole.
olmokopenfu.tk Moreover, in showing the weaknesses and strengths of CLS, the paper will offer a resolution that will further answer the problem with the legal system as whole. This thesis also offers examples of statutes, laws, and legal cases in the Philippine context. These examples will further help the reader in contextualizing the theories posited by the paper. In addition, it also shows the concepts, views, subjects, and themes that the CLS movement has, by tracing them from the existing adherent works.
Then, the discussion narrows down to the CLS main assertions, its grounds, claims, and warrant, concerning their statement of law as indeterminate and purely political. This paper will show that CLS assertions are based on ambiguity. Find out about support services, the Australian education system, accommodation and more to help you get the most out of your study at UTS.
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