George P. KyprianidesBarrister-At-Law[Inner Temple]

LLB, LLM with Distinction

Advocate-Legal Consultant

Professor Duncan Kennedy is amongst its adherents. Duncan Kennedy speaks at Harvard Law School during a panel on 2008 -2009 Gaza War.

•CLS deny that that law is a system. “Doctrine "never provides a determinate answer to questions, nor can it cover all conceivable situations. This is described as the

principle of indeterminacy.

•It rejects the view that there is an autonomous and neutral mode of legal reasoning. This is described as the principle of antiformalism

•It disputes the idea that ‘doctrine’ encapsulates a single, coherent view of human relations; instead CLS argue that ‘doctrine’ represents several different, often

competing views, none of which is sufficiently coherent or persuasive to be called dominant. This is described as the principle of contradiction.

•It doubts that even where there is consensus, there is reason to regard the law as decisive factor in social behavior. This is described as the principle of marginality.

Three main inf luences of CLS movement.

1. American Legal Realist movement is the progenitor of the CLS movement.

Although, Duxbury says

“ CLS –for all that it may have progressed little further than did legal realism in grappling with law as a political phenomenon-is not simply realism

repeated.”Neil Duxbury, Patterns of American Jurisprudence (Oxford: Hart Publishing, 2000), at pg. 425.

In deciding cases, judges react to the underlying facts of the case, whether or not they are legally significant.

The legal rules and reasons generally have little or no effect, especially in appellate decisions.

Many of the realists advanced ‘core claim’ is the hope of reformulating rules to tender them more fact-specific.

Brian Leiter, “Rethinking of Legal Realism: Toward a Naturalized Jurisprudence”.

Oliver Wendell Holmes Jr. (Supreme Court Justice):

“The Common Law is not a brooding omnipresence in the sky but the article voice of some sovereign or quasi sovereign that can be identified.” Southern Pacific Co. v Jensen 244 US 205 (1917) at 222.

“ I define postmodern as incredulity toward meta-narratives.”Jean- Francois Lyotard, The Postmodern Condition: A Report on

Knowledge.

Four vital characteristics:

Anti-formalist:“Wage a War on totality”

Lytard.

Socially conditioned nature of all thinking: nature of knowledge:

Subjectivity.

If the meaning of words is so unstable, how can we communicate at all?

Derrida: An illusion of stable meaning is created by binary oppositions.

Derrida emphasizes the implicit hierarchy in the oppositions one term carrying positive connotations and the other negative.

“Deconstruction” :

“Uncovers the politics which underpins philosophy and by concentrating on language reveals how this politics is secreted away.”

Ian Ward.

“Base”

“Superstructure”

For Marxist law has an extremely vital ideological function where the term “ideological”: obscure and maintain the exploitative relationships on which the society works.

“Men and their circumstances appear upside down”.

How does Marxism influence the CLS movement?

Judges make arbitrary decisions, this is why we have some decisions being overruled or dissenting judgements.

We live in a two party system with each party having opposing points of view; traditionalist free marketeerswithin the Conservative Party and reforming socialists within the Labour Party mean an inevitable contradiction in different laws - freedom of contract vsminimum wage

Jurisprudential theories contradict each other even when they are in agreement Dworkin/Hart

Is a contradiction within itself

Laws exist for the benefit of the people

Yet the law must fetter and restrain itself for fear of becoming tyrannical

This means however that it cannot benefit the people as much as it otherwise might

As a result the law must benefit the people but must to do so to its full ability

Phrase coined by Kennedy

An individual should not be impeded upon by other people or society as a whole

In order to protect the individual from other individuals the law must impede upon others and fetter their actions

The law is however little more than the implementation of a collective point of view upon an individual and thus the individual is being coerced into actions by society

CLS philosophers have identified 3 main contradictions:

1. Formal “Rules” are used alongside the contradictorily informal “Standards”

2. The importance of individual understanding and the subjectivity of truth against the idea of an objective understanding throughout society

3. The idea of individual actions and decisions against the issue of determinism

The law relies on Formal Realizability in many areas, notably statute, in which decision makers have clear boundaries and instructions to which they must react in a certain way

On top of this the law has certain standards that are not strict but may be as loose as simple guidelines, for example the maxims of equity

Rules

Strict, must be followed in set manner that may not be diverged from

Prevent arbitrary decision making

Certainty of verdict

Allow “toeing the line” of the law and allow loopholes to be created

Flexible, allow the decision maker room to find their ideal decision

Allow an arbitrary element within the law

Lack of certainty

Prevents “toeing the line” but undermines the Rule

Standards

The subjective morals and understanding of the individual are key to liberal ideology

The law however imposes objective morals onto the individual

Laws are imposed as overriding of the person’s individual morality

This is contradictory within itself, however

There is no such thing as “objective truth” and thus the understanding of one group takes precedent over another, which makes one group of greater importance than the other contrary to liberal beliefs

Intentionalism – people act of their own free will and make decisions as to their own antonymous choices

Determinism – people act according to the experiences from the world around them their actions are therefore neither blame or praiseworthy

Criminal law is overwhelmingly intentionalist -punishment of an individual for choosing to act in a certain manner

Private law also has a large degree of intentionalism –freedom of contract, caveat emptor

Intentionalism

Overwhelming basis of reasoning behind the law and a person’s actions

For something to be a crime the actus reusmust be intended

Recognised within the law, but is implemented only as an exception, for example a plea of insanity

Strict liability, where fault is not needed

Determinism

Intentionalism

Criminal law considered traditionally intentionalist

Apart from when it’s not...

For example the plea of provocation where someone has acted because circumstances were out of their control

Negligence is considereredtraditionally determinist

Apart from when it’s not...

Though it may be accidental that the result happened, there are certain levels of choice negligence – eg I chose not to check the ginger beer bottle for snails

Determinism

LeBarron v State – a man decides to stop raping a woman because she says that she is pregnant. The court found that he only stopped due to the extraneous circumstances and thus found him guilty of rape – however, many other men would not have stopped, thus it was his decision to not rape her

An individual’s Will is supposedly the embodiment of how they wish to have their estate split upon death. However, the court will often override clauses that it considers inequitable – “I leave all my money to my local school, but only for the benefit of those with blonde hair and blue eyes” will be overridden because eugenics are considered immoral and if the decision had been made today it would (presumably) not include the caveat

The law therefore operates on the grounds of intentionalism, yet contradicts itself through allowing determinisitic factors to be recognised in an ad hoc manner

This leads to contradictions in other areas, such as certainty

Creates arbitrary decisions in a system that is meant to avoid uncertainty

CLS claims that in a reformed system the two elements would be recognised more overtly

Contract Law

Unger Competing values of individual freedom and surrounding

social obligations

Mensch ‘The principle of free contract is incoherent on its own terms’

Hobbes It is rational to accept limits on our freedom in order for

society to function efficiently

Dworkin We should expect a legal system to be responsive to the

range of values held by society

When judges decide hard cases, they choose the interpretation of the law that best fits and justifies the law’s current position

Fuller The aim is to find the best possible conjoint pursuit of a

plurality of principles.

CLS mistakes Complexity for Conflict

Finnis Not two conflicting rules, but one complex rule

Unger Flawed conclusion that:

existence of exceptions to a rule = incoherency

exception = counter-principle

Complex society

Complex rules required to regulate such a society

The law reflects the contradiction inherent in our existence

The law is not contradictory in itself

The law does indeed have contradictions, which are vast and inherent within the law itself

However, these contradictions are not as fatal to the current legal system as the CLS movement would wish

Deconstructionism, although a useful tool does not comprehensively destroy the arguments in favour of the law and may be countered