Critical Legal Studies and Legal Realism: a Summary

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The myth is that the state doesn’t TAKE sides in the matter of judicial decisions. The myth is that the system is neutral and that everyone is treated equally and fairly. Natural law states that there should be UNIVERSAL acceptance on what law should be like. But this is untrue, there is NO AGREEMENT, there are the powerful and the otherwise. Value Consensus: Groups may disagree and have conflicting views, but BY AND LARGE, stability is taken to be the norm. There is a general agreement that the law can settle things in a neutral and just manner CONFLICT is explained in this way, STABILITY BEING ASSUMED. Value Antagonism: The claim of consensus is TOTALLY REJECTED. This theory also explains the theory that wars, revolution, bloodshed and the like are not as FREQUENT, because the MORE POWERFUL groups use state power to suppress the less powerful groups and make it impossible for them to cause trouble. It ASSUMES conflict, and attempts to explain STABILITY. Realism: believe that judicial decision making is a highly subjective exercise that often produces ambiguous, inconsistent results. (Majority decisions are a brilliant example of this situations: In a 3:2 ruling, all 5 judges are looking at the same facts, same situations and using the same laws (and presumable applying the same precedents) BUT REACHING DIFFERENT CONCLUSIONS. The Realists feel that not only will the facts of the case, laws applied, precedents, etc. etc., will affect the outcomes of the case, BUT ALSO THE JUDGE. They take into account the moral values of the judge in concern, their beliefs, their positions in society, etc. The beliefs of realism are BASICALLY: 1) Law protects powerful economic interests first. 2) The outcome of a legal dispute is dependent on the judge’s morality, mood, personality, social position and the like. (Stark contrast to positivism) 3) Since the judge’s

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