This paper challenges the Critical Legal Studies (CLS) claims of legal indeterminacy. It shall use a legal formalist logic and language as its main assertion, further maintaining that the CLS claims is only grounded in ambiguity and confusion.
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 – law is politics. Consequently, CLS maintained that these results to indeterminacy of law.
Legal indeterminacy can be summed up as contrary to the common understanding that legal materials, statutes and case law, do not really answer legal disputes. Legal principles and doctrines, as CLS scholars claim, are said to be indeterminate, for it is riddle with gaps, conflicts, and anomalies that are widely present even in simple cases. Legal indeterminacy also rises because of the underlying political power – law is politics – that implicates law as merely a tool for oppression.
This thesis shows that CLS assertions with legal indeterminacy is only grounded on ambiguity. On one hand, using the main concept of legal formalist logic and language grounded with sub-arguments: inherent generality of legal language, reasoned elaboration, and neutral principles, it refutes the CLS claims of legal indeterminacy. On the other, the paper maintains that their main reason of legal indeterminacy, ‘law is politics’, is merely a statement of fact that currently happens in society is sentimental and weak through counterexamples.
Table of Contents
INTRODUCTION
CRITICAL LEGAL STUDIES
Positive and Negative Jurisprudence
External and Internal Viewpoint
Legal Realism
Critical Legal Studies Scholars ‘crits’
CLS Major Themes and thoughts
LEGAL INDETERMINACY AND POLITICS
Legal formalism
Inherent generality of laws
Reasoned Elaboration
Institutionalized System
‘Law is politics’
CLS’ Response
Legitimacy of laws
CONCLUSION
Research Objectives and Core Themes
This thesis examines and challenges the Critical Legal Studies (CLS) assertion that law is inherently indeterminate and essentially political. By employing a legal formalist framework, the work seeks to refute the CLS perspective by demonstrating that legal language and principles provide a stable, objective basis for adjudication that is distinct from raw political interest.
- Critique of the CLS claim of legal indeterminacy.
- Application of legal formalist logic and reasoned elaboration.
- Refutation of the assertion that "law is politics" through counterexamples.
- Analysis of the institutionalized and objective nature of legal systems.
- Evaluation of the legitimacy of law despite socio-political biases.
Excerpt from the Book
Inherent generality of laws
Another concern for the critical theorist is the vagueness of language used in legal rules e.g. ‘reasonable’, ‘due process’, ‘fair value’ etc. However, their claim of legal indeterminacy as founded on the vagueness of language is simply a confusion with the inherent generality of legal language. Laws are inherently general. It is to allow the legal practitioners in reading it as broadly or as narrowly as necessary to achieve a desired result.
In addition, it will be irrational to claim that all laws are supposed to be specific to be applied on each legal cases, for it will never and cannot reflect the exact reality of events that happen in a certain society in which it is applied. That is to say, with the complexities of events, crimes, definitions, individuals, etc. laws exist to be general and overlapping for it to match the complexities to which it is to be applied. According to Hart, laws are supposed to be general for better application. Codes and rules are composed of general provisions from enforcement, application, and penalties. He further claimed that the law is coherent, clear, and discoverable in most cases. He specifically argues that the legal rules are necessarily worded in generalities so that they will apply to a broad variety of cases. This leaves an ‘open texture’ quality of rules for an element of judicial discretion in cases where law is unclear.
Summary of Chapters
INTRODUCTION: The author introduces the critique of CLS, outlining the focus on legal formalism and the intention to challenge the notion that law is purely political.
CRITICAL LEGAL STUDIES: This chapter covers the historical background, key proponents, and postmodern themes of the CLS movement, including the distinction between positive and negative jurisprudence.
LEGAL INDETERMINACY AND POLITICS: The final chapter presents the central argument of the thesis, utilizing legal formalist principles to refute the idea that legal ambiguity leads to indeterminacy, and questioning the "law is politics" assertion.
Keywords
law, jurisprudence, philosophy, critical legal studies, CLS, indeterminacy, legal formalism, reasoned elaboration, legal theory, social justice, legitimacy, political bias, judicial decision-making.
Frequently Asked Questions
What is the primary focus of this research paper?
The paper fundamentally challenges the Critical Legal Studies (CLS) claim that law is indeterminate, incoherent, and merely a tool for political power.
What are the central themes discussed in the work?
Key themes include legal indeterminacy, the "law is politics" assertion, legal formalism, the inherent generality of legal language, and the role of reasoned elaboration in judicial processes.
What is the main objective or research question?
The objective is to demonstrate that law is not inherently indeterminate by using a legal formalist framework to prove that legal codes are objective, stable, and distinct from political maneuvers.
Which scientific or theoretical methodology is employed?
The author employs a legal formalist approach, utilizing logic and language analysis to argue that legal consistency is achieved through institutional protocols, reasoned elaboration, and neutral principles.
What is addressed in the main body of the paper?
The main body examines the origins of CLS, the postmodern influence on legal theory, the critique of "law is politics," and the application of formalist tools to show that legal structures maintain stability despite external political pressures.
Which keywords characterize this study?
The work is characterized by terms such as legal formalism, jurisprudence, CLS, indeterminacy, and legal legitimacy.
How does the author define "legal formalism" in this context?
The author clarifies that "formalist" here refers to the strict observance and adherence to established legal rules and structured judicial reasoning, rather than just the specific "Legal Formalism" historical school.
Why does the author argue against the "law is politics" claim?
The author argues that while politics exists within society and influences legal practitioners, the law itself acts as a tool that can be used for the benefit of society, thus rejecting the total reduction of law to political power.
- Quote paper
- Ian Benitez (Author), 2015, A Discussion of Critical Legal Studies' Claim of Legal Indeterminacy, Munich, GRIN Verlag, https://www.grin.com/document/304400
