Friday, September 18, 2009
It is my belief that Critical Legal Studies Theory and Legal Realism do not provide normative views for a very particular reason. Both of these legal philosophies, as is my understanding, are trying to point out the failures and shortcomings of the legal system, and while doing this create clear examples of how and why the system has these faults. Although both philosophies differ on how to point out these faults, they both are very similar, or at least it appears so, in the fact that they do not believe it is possible to change the system enough, or have the ability to remove human biases, to actually alter the system and make the improvements necessary. It is this belief that no matter how we attempt to fix it, the same problems will always arise, the "if men were angles there would be no need for government" ideology, that leads both of Critical Legal Studies Theory and Legal Realism to be both non-normative and quietist. Although Critical Legal Studies Theory has issues with the Legal Realist method of empirical examination, I believe that the Critical Legal Studies Theory method is almost exactly the same, using previous information and data, combined with various other factors to develop decisions for the future, is just as biased and not truly empirical. I was personally shocked more at the similarities between Legal Realism and Critical Legal Studies Theory, rather than by their differences, which seems very small to me.
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I agree that the critical legal studies theory and legal realism do not provide normative views, and that they only seem to focus on the negative. By believing that change and improvement is impossible and only pointing out the shortcomings of a law, these theorists will never be able to achieve such changes and improvements in the system.
ReplyDeleteIs it at all possible that these critics of the system have no desire to actually change how the legal system works? The legal system is a very cumbersome and complex institution. Perhaps the critics serve as simply catalysts to change and have no intention of bringing that change upon the system single handedly. We have often needed people in the past to point out the injustices in society and help spark social and political change. Its important to realize that just because you point out flaws to people does not mean that you have to change the system. While on paper it seems like a great idea, changing an entire system of government or the way it's courts work is not a one man job.
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