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Legal Justice Short Outline

Legal Justice Short Outline - Classical Legal Thought...

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Classical Legal Thought Substantive: natural rights theory – freedom + consent Liberty – contracts, property Distinguish between public and private Police power is only to protect against individual coercion Feasance/non-feasance – government can’t make you act, it can just stop you from interfering with another’s rights Procedural: Formalism Principles rules deduce to sub-rules No overt concern for the effect of the decision Formalism hides political choice Critiques: analogies hide political choices Deduction isn’t unbiased or “logical”
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Realism Main tenets: No public/private distinction. Separate the “is” from the “ought” to see how judges work, what the law is. Bring up the policy reasons in the decisions; use social science. Deduction is indeterminate; can reach at least two decisions by deduction. Politics influence the judge’s decisions even if he says he’s deciding on principles. Use social science to decide what decision will make the best outcome. Realism is defined by its position against CLT. Hale: Government/law affects how people can use their coercive powers. Threats = promises; the only difference is in the legal definition, which is circular. Changes in rights affect the balance of coercive power in society. People are always interfering with each other’s rights, so if the government only interferes when rights are interfered with, it can always interfere. Private is the public. Law gives you bargaining power and determines the extent to which you can use your coercive power. He doesn’t say how the government should interfere, only that it does. M. Cohen: The public good limits individual rights – public good v. rights. By protecting property rights (the power to exclude), the law creates power between people and inequities within society. The question is where to restrict property and where to give it free scope in interests of common good. Property right does exist but we should make a decision as to where we want to intervene and limit the property right. Wealth sovereign power over others Should regulate capitalism to help the public interest of not being under another’s power. Extreme property rights should not lead to domination over others. Radical realism He does agree that there are private rights (unlike Hale), natural rights; only he doesn’t want those to go too far to interfere with the public good. F. Cohen: “Thingification” of legal concepts gives them an unwarranted legitimacy; are just used by the court to make it look legitimate. Functionalism as reconstruction: social science to determine what decisions to make.
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Legal Justice Short Outline - Classical Legal Thought...

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