CRITICAL THEORIES

SYNOPSIS:

• CRITICSM ON LEGAL POSITIVISM BY HISTORICAL

SCHOOL OF THOUGHT

• CRITICISM BY SALMOND ON LEGAL POSITIVISM

• CRITICISM ON LEGAL REALISM
INTRODUCTION:

• A self-conscious group of legal scholars of United States founded the

Conference on Critical Legal Studies (CLS) related to the critical theories of
law in 1977.

• Some critical scholars adapt ideas drawn from Marxist and socialist theories
to demonstrate how economic power relationships influence legal practices
and consciousness.

• Different jurist criticized different already existing theories of law with their
own thoughts.
• CLS thinkers share the idea that there is another ‘truth’ to the law than that
of its apparent content though the status of this other truth.

• The central object of CLS is to challenge the apparent objectivity of law

and legal practice in order to expose the political choices embedded in
legal discourse
CRITICISM ON LEGAL POSITIVISM:

1. BY HENRY MAINE:
• main exponent of historical school of law
• criticized legal positivism on two grounds

• LAW IS NOT INVARIABLY LINKED WITH SOVEREIGN:

• In early communities, rules which regulated life were derived from
immemorial usages and these rules were administered by domestic
tribunals in families or village communities.
2. MANY LAWS THAT DO NOT FALL UNDER THE
DEFINITION OF AUSTIN ARE STILL LAWS:
• There are rules of customary law, international law and even constitutional
law in England which are habitually obeyed and yet they do not fall within
the Austinian definition of law.

• Austin’s theory of law is historically inaccurate in so far as it postulates the

interdependence of law and sovereignty.
CRITICISM BY LORD BRYCE ON LEGAL
POSITIVISM:
He said:
• The once popular definition of law as a command of the state is an instance
of the danger of forgetting the past. Austin says whatever sovereign gives
as a command, it would be treated as law, meaning thereby that people
would then forget about their traditional and customary laws.
• There would be a chaos as according to the definition, the laws changes
with every sovereign.
CRITICISM BY SALMOND:

ACCORDING TO SALMOND:
• Austin has ignored the ethical purpose of law. the imperative definition of
law eliminates from the implications of the term ‘law’ all elements
included that of force.
• All laws cannot be commands. much modern law is of a purely permissive
character and confers privileges.
• Declaratory laws, enabling statutes, and the rules relating to civil procedure
and interpretation of statutes cannot be accommodated with Austin's
imperative definition of law.

• He further says that Austin said whatever given by the political superior
must be considered as law and this is not possible as all law is not
produced by laws and all laws do not produce laws.
CRITICISM ON LEGAL REALISM:
• The view explained by legal realist that a statement of law is nothing more
than a prediction of what the courts will decide is subject to the following
criticism:

• A statement of law is seldom treated as a prediction which a counsel

submits before a court. He is not forecasting what the judge will decide,
but he is asking what the judge should decide.
• Today it may be thought that the creative days of the judges are largely
past. Now that the common law is mostly completed and the greater part of
the modern law is statutory, the task of the judges is in fact the more
automatic one of applying settled rules to the cases between the litigants.
What other new theories emerged as a result of critical legal
studies:
• Feminist legal theory

• Liberal feminism
• Critical race theory
FEMINIST LEGAL THEORY:

• Traditional jurisprudence traditionally overlooked the position of women.

• Feminist legal theory has been remarkably successful in remedying this

neglect.

• American laws after this moment added various feminist laws in their legal
system.
LIBERAL FEMINISM:
• Liberalism asserts for the maximum freedom of the individual, freedom of
speech, association, sexuality etc.
• Liberal feminism perceives individuals as autonomous, rights-bearing agents
and stresses the values of equality, rationality and autonomy.
• As men and women are equally rational it is argued they should have the same
opportunities to exercise rational choice.
CRITICAL RACE THEORY:
• Critical Race Theory (CRT) originated in Madison Wisconsin in
1989.
• Its mainspring however is the need to expose the law’s pervasive
racism.
• CRT adherents argue that those who have themselves suffered the
indignity and injustice of discrimination are the authentic voices of
marginalized racial minorities.
• The law’s formal constructs reflect the reality of a privileged elite,
male, white majority.
Thank You