LAWS 1001

Introduction to Legal Studies I

Session III

Prof. Umut Özsu

Legal positivism
Legal positivists argue that law is always a creation of the state, and that law
must therefore be understood in conjunction with the power and authority of
the state.
Legal positivists also argue that law must be considered on its own terms—that
is, as a body of rules which is autonomous and which stands at a distance from
norms or practices of morality, politics, economics, et cetera. In their view, there
is no necessary connection between law and morality, politics, economics, et
cetera.
Legal positivists reject the view that law is best understood as an outgrowth of
broader conceptions of moral right, social justice, or the common good. In
particular, they repudiate the natural law tradition. According to the natural law
tradition, law is an expression of objective and unquestionable moral norms. For
natural law theorists, if certain legal rules are not grounded in basic moral
imperatives, they are not truly legal rules. Legal positivists reject this position,
arguing that there is no necessary connection between law and morality.
Many (though not all) legal positivists seek to provide an account of law as a
more or less closed, rationally integrated “system”. Hans Kelsen is a prime
example of one such legal positivist.
H. L. A. Hart (1907–92) Hans Kelsen (1881–1973)
Legal realism
Legal realists reject the view that law involves relations between self-standing, autonomous
legal actors, each endowed with a single, clearly discernible “will”. Actual people, operating
under actual social conditions, are more complicated than this classical legalistic image
suggests.

Legal realists also reject the view that law should be understood as an essentially “natural”
order, i.e. an order that reflects the way society “naturally” is or ought to be.

Many legal realists are committed to the idea of “indeterminacy”. This is the idea that law, legal
reasoning, and legal dispute-settlement are never fully “determinate”, in the sense of yielding
consistent and predictable decisions on the basis of a pre-existing logic of some kind. For legal
realists, there is nothing mechanical about law, legal reasoning, and legal dispute-settlement.
For instance, the socio-economic background and political commitments of a given judge will
often influence the way they understand, interpret, and apply the law.

Legal realists often believe that their approach requires empirical, social-scientific examination
of the actual behaviour of judges, juries, and other participants in legal proceedings. They are
often committed to purposive, pragmatic assessment of the costs and benefits of competing
policies, institutional structures, and dispute-settlement procedures.
Felix Cohen (1907–53)
Marxist approaches to law
Followers of Karl Marx, the nineteenth-century thinker and activist,
tend to be quite hesitant to rely upon law. The reason is simple.
Most Marxists argue that legal rules (like moral beliefs, cultural
forms, political traditions, and state institutions) are products of
more basic socio-economic forces and relations. It is these socio-
economic forces and relations that really drive human history. As a
result, it is not through legal reforms or arguments, but through
concrete changes to social and economic relations, that real
progress is achieved.

Marxist legal scholars argue that class power needs the authority of
the state (and, by extension, the authority of the law) in order to
secure the “legitimacy” it needs to rule. Brute coercive force is
never enough to sustain and preserve “legitimate” authority. Instead,
ideology (including legal ideology) is always needed.
Evgeny Pashukanis (1891–1937) Nicos Poulantzas (1936–79)
Weberian approaches to law
Adherents of Max Weber attempt to classify different types of law, both formal
and informal, “modern” and “traditional”, “rational” and “irrational”.

Weberians associate the most “modern” types of law with formal and “rational”
systems that are rule-governed and essentially predictable. These systems differ
from those of ethics, religion, and politics.

Formal, “modern”, and “rational” systems of law are distinguished by the

consistent interpretation and application of a stable set of formal rules, as
opposed to arbitrary and unpredictable reliance upon moral values or political
goals.

The growth of “modern” law goes hand in hand with the growth of capitalism in
Europe from the sixteenth century onwards. For Weber, the relation between
law and capitalism is the inverse of Marx. Marx believed that “modern” law is an
outgrowth of the capitalist mode of production. By contrast, Weber believes that
capitalism is to a significant degree an outgrowth of the “Protestant work ethic”
(and the “modern” law in which it finds expression).
Max Weber (1864–1920)
Feminist legal theory, queer legal theory, and critical race theory
Feminist legal theorists seek to explain the legally sanctioned relations of domination
and exploitation that play a crucial role in the subordination of women, ultimately
with the goal of effecting concrete social change (e.g. having unpaid work or care
work recognized as “real” work). Feminist legal theory has also laid the foundations
for much of queer legal theory, which is concerned with LGBTQ+ issues, as well as
recent work on the rights of transgender persons.

Critical race theorists seek to explain the processes whereby people come to be
associated (and come to associate themselves) with particular racial identities. They
do so in order to question seemingly obvious assumptions about race, reveal the
significance of racial categories in law-making and law-enforcement, and facilitate the
emancipation of all those who are subordinated on account of their racial identities.

Some of the most interesting work in feminist legal theory, queer legal theory, and
critical race theory lies at the intersection between these approaches. In fact, it is
called just that—“intersectionality”. The basic idea here is that people have
“intersectional” identities. One is not simply a woman, a homosexual, or a person of
colour. Instead, one is a woman, a homosexual, and a person of colour. This means
that identity is fundamentally complex, involving multiple social categories.
Kimberlé Crenshaw Dean Spade