(2005)
Theory
Legal
and
Law
law Rotolo) Theory Tushnet
2008 on of
of based Philosophy
Antonino November Legal
Philosophy V. 1
Handout Mark
Critical
(prof. the
By
3 to
Guide
Blackwell
The
In self
argument legal
rule-
combine
argument and
deduces
of
University should favour motivation
political reasoned
Overview it
law because
in
Harvard to
law and of and individual
applicable account
and
Theory: coercion formalism
e.g., formalistic,
with
liberalism
1979s: an reasoning about
methods of realism:
Legal combination 2
theory the
the of is assumptions
critique legal Chicago-law-and-economics
from against
The legal
Critical legal theory scepticism
of
starting politics. American
inequality, messy analysis
in hence,
social
too, thin
US fairly
is used, of
in from
Law
race, legacy
Developed 1. 2. 3.
is
be interest
law
Slogan: rules
Issues: should The The
• • • • • •
so- property
resources the
interfere in
pairs,
sufficient
the law that over
defended property
in arguments
grouped the can’t prevail
legal are
(1) owners
over
system in I
(CLS) the
Thesis injury):
example,
concepts produce to
sovereignty
significance, other ought
legal
studies wish)
Indeterminacy (or of can
For
well-developed observe
reasoning concept
property
outcome nuisance
legal I
owner’s lawyer
other. what
social 3
critical can property subordinate
the the
legal significant well-trained
is is
some we over over
concept concept
reasonably
realism, in fields:
The with the
thesis dominant sovereignty
socially with the
predominant
dispute one.
subordinate
legal a
legal indeterminacy that circumstances
do
any dominant
concept
specific is
(I
any
American the
legal in problem
owned
available justify with
the the
one
any Within usually
called • •
Like with
In to The the
difficulty one. a actually in
in is
choice
dominant are lawyers
makers
a
(2) experience the
the that
Thesis result. constraints?
decision because
it means
making law
lawyers any
Indeterminacy constitutional this
decisions.
to intuition,
legal
law. these
lead
in decisions,
Sometimes of
and that can 4
of
field predict
concept against source
implies materials
to
other predict
law
fields:
The to the
is
subordinate some thesis
private possibility
Legal What’s
this somehow
legal to indeterminacy Indeed,
from choice.
turn
different constrained.
the
a can
lawyers example,
elevating experience
of Response: we
position
Across if
Then The fact
But
For
in interest.
legal is
explanation? reforms
this naïve
The wealthy that labour
class
power. contend quite
(1) to
self-conscious or liberal-seeming
not way is
capital
Theory is this
they
determinacy law, opposite class:
of But the
interest
Social role. working
powerful. to
a an that
attention
tilt in
actual a 5
the plays argue example,
and this the
in
the
of made against
fact
CLS pay to
of
of
source hints
favour for
this to
source consciously report made
argue,
sufficient
that
the in the deny
that consciously
“tilted” regularly to
are difficult
Is
believe no
not enough.
(Marxism) Decisions are
is Problem: do
system Judges There were
CLS
CLS it
not Is
the
the
other of for
common
role basis
of accept
and other.
interest (the the
in
experience.
rights to alternative each provide
engaged
(2) the groups and/or media real
civil from
Theory reflect as
reinforcement
own
hegemony:
law, as mass
isolated
themselves
subordinate internalize
social
law themselves
their
labour the
Social the idea. available individuals
of by
of
not people
sense
find supplemented
of this 6
social
notion lead
and should
proponents perceive
they
criticize no people’s that
processes as and
(1920)
CLS is
which
sincere. often
systems life
there experience
to sometimes
Marxism: is social
Gramsci’s
liberal under
stands more experience
that
workers? social
basically democratic media) of
but
conditions believe
two
that fantasies
Personal
Humanist
various project
People
Antonio
on
group, mass
were
believe This
relied to
a
reforms in largest •
•
Why
CLS CLS
at
a structure
social can
in
line
and consciousness choice
in others)
structure in
standing (economic the
(participation
(3) the that
predominant
Theory to
with
people believe
Marxism
comes
connecting
(image: zaps” CLS
Social determined
which
a classic superstructure).
“intersubjective
find individualism 7
not
and “altruism”,
and in
CLS fully
CLS as
service
too, not
such legal
is
is but
for
theory, predominant called
subordinate determinism
one. constrained,
the
waiting movements)
subordinate determines
social moments
bank
The The No be
In a
•
• •
•
(1) entitlements
public public
private sphere
usually
Division of a
private
and it of
actions
as
public result
the
division, consequences.
goals. the
Public/Private out
by the
between with
defined spell
political is
this actors
identified
they
distinction that has
is
some market
sphere as
argues fact 8
the are
courts
achieving This
sphere.
the private and
“market”
of CLS
liberalism institutions.
by
Critique family
private
individuals. particular
so-called
to
functional and a
in constitutes
the “family” legal
CLS: obvious the in in
the actors
and
is of
that
articulated, definitions
of Example:
quite agencies, what
say
spheres by
CLS held
is but
It be
the
but to working and
successfully worker
intervention, victims
choice;
(2) unsafe
Division impoverished individual discriminations.
free
intrusion
to with
public able agreement,
Public/Private job on
unjustified
of be an a focus
object accepting
would Could of
Yes… sources
is to
be 9
fraud. not
an
wife concept
might is
in
be is
answer structural
choice
the a would point
mistake,
abused
child dominant
of the
the
him free
Critique a the
is discrimination:
who Formally,
abused penalizing a
concept on
made
the
husband but
who perpetrators,
CLS: have
contract subordinate conditions?
that
parent a to Racial
claim
often said
In
A (2005)
Theory
Legal
and
Law
law Rotolo) Theory Tushnet
2008 on of
of based Philosophy
Antonino November Legal
Philosophy V. 1
Handout Mark
Critical
(prof. the
By
4 to
Guide
Blackwell
The
In
race
its moral,
repudiate involving vindicating groups
to cases
begun
Rights subordinated
system
in (1954)
had interests
of Court
Critique legal Topeka
socially
liberal
Supreme 2
a of
of Education
of
The of
symbol
US behalf behalf
the (1973)
on
after on of
the
interventions Board
rights
welfare
created were Wade
constitutional v.
cases Brown v.
were social Roe
earlier
CLS Two
and • •
the
States
Equal
Court on
white down jurisdiction
and
Supreme the United
Handed
black of
that
(1) violation
States its
the
for stated
Background opportunities. within
schools of
United decision a
unequal.” Amendment person
ruled
public
The (9-0)
educational was any
(1954). inherently
separate
The unanimous segregation to
Fourteenth
Rights: 3
deny
Topeka established are
equal [...]
facilities
Court’s laws).
of racial
of the shall
children
Education
Critique that of the
state
Warren jure
educational
laws Clause of
black (no
de protection
of state the
The result, Constitution
Board denied 1954, Protection
“separate
that equal
a
v. declared 17,
students As
Brown May • •
against privacy for
The the at
restricting ‘viable.’” weeks.”
occurs
pregnancy outside
Amendment.
(2) laws to becomes usually
or
right 20
Background live
most outlawing at
her even
to
constitutional
decision, abort Viability
Fourteenth foetus able earlier,
holdings. may
laws potentially
the
Roe
The aid. occur
mother
federal which
a the
the violated artificial
its
Rights: 4
may
of being
with
to a at
and
Clause that
According but
“point
inconsistent
States as
state with weeks)
held
of viable
Process the
Critique all albeit
United centrally
(1973). (24
until
overturned defined
were months
womb,
Due
the up
Wade
Wade
The that reason,
in Court
the six
mother’s
abortion abortion
decision v.
v. under about
Roe The
Roe any
right rights- other of
courts affirmative to
double- activists (Dominance
legal to
1980s
only devote
a
are
of induced
in
vindicate the
claims
Motivation whites
rights-claims they legislation.
from naturally
making attention
of
courts fact, example,
In
of that
Rights: in
terms
that strategy)
the
groups.
utility as
suggests diminishing
for
reason 5
legal such
the rights,
of subordinated rights
in
questions action
no
Critique thesis claims
the the
is courts,
There pursuing
grounds vindicate political
indeterminacy political
rights by in
The sword. made cases. redress
of
of in
of
to Framing
number
critique lawyers
started
claims arenas
action
edged seek
The
a
The (2)
(1)
on minority
of
them
state,
(people the
substantial to
with developing fail
set undervalue
connecting on
the they
a
individualism from
conferred
(cont’d) provided
against subordination;
of more springing
way CLS
not something
mainly
generate
and the CLS.
Motivation rights
relations.
reinforce service in than social
against
individuals
stand of
rather
as
could social membership.
for
arena reduce
rights recognition
that 6
reacted
waiting
Rights: state, of
that
individualism
judicial experience
by out to
the scholars rights-claims
bank made arising
solidarities full
judicial
person,
of the of
a change
Critique are
at to experiences sense
legal
in line an people fictional
Rights-claims
Rights-claims the
legal
others), progressive
community Minority
in a
with
standing that
leading
The of
lived
a communities
contribution
the by appreciate
Response:
(4)
(3) subordinate
out
in their treatment
and live point
on
Theory persons focusing and legal more
community the
that or
Feminist only namely, two
assumes by
Theory with
of
hegemony; abstract intersectionality,
idea people
Critical it the 7
Race since in of
on
social identifiable composed
Individualism: insist
wrong,
Critical and of women
CLS men
notion
political theoretically groups
are gay
of
wrong: American
the
and interests developments American
of
supports of
isolation
of status
is importance e.g.
Individualism
Critique is own African
social Asian
it it identities,
Recent
(ii)
(i) and •
•
the (2005)
Theory
Legal
Theory and
Law
law Rotolo) Legal
2008 on Smith of
of based Feminist Philosophy
Antonino November
Philosophy Patricia 1
Handout in By
Themes
(prof. the
5 to
Guide
Four Blackwell
The
In
Issues the justice social
men to
women barriers
of purposes all
retarded
Main out for
in
1970s. justice pose
grew law women
relevant
and that that
the
and
that promote
History structures
in
1960s denial
of
legally
discipline so topics
inclusion
treated to
law
late etc.)
of
all
Theory: means
different
legal the
the 2
for devices
be problem,
a in
the
of that should a
analysed<
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
Scarica il documento per vederlo tutto.
-
Philosophy of law
-
Philosophy of Law - concetti generali
-
Appunti di Philosophy of law
-
Philosophy of Law - concetti generali terza parte