UNIVERSITY OF NAIROBI

SCHOOL OF LAW

MASTERS OF LAW (LLM) PROGRAM

GPR 6103: JURISPRUDENCE AND LEGAL THEORY

ASSIGNMENT: SEMINAR SIX QUESTION

NAME: ANNET AKOTH OTAGO

REGISTRATION NUMBER: G62/45405/2023

COURSE INSTRUCTORS: PROF. ALBERT MUMMA

DR. NANCY BARAZA

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SEMINAR SIX: MODERN PERSPECTIVES ON LEGAL THEORY

Question:

Modern and post-modern theories of law are inherently reactionary in nature driven by a

counter-majoritarian narrative. Explore the statement with reference to at least three modern

theories of law.

Introduction

The discourse surrounding modern and post-modern theories of law unveils a profound tension

rooted in the philosophical foundations of legal thought. This tension is often characterized by

the assertion that both modern and post-modern theories are inherently reactionary, responding

to and shaped by a counter-majoritarian narrative. In this essay, we will delve into three theories

namely; American realism, Scandinavian legal realism and Feminist theory to discern how each,

in its own way, reacts to the challenges posed by majority will and societal shifts.

American Realism

American Legal Realism was the most important indigenous jurisprudential movement in the

United States during the 20th century. 1 It emerged as an anti-formalist and empirically oriented

response to and rejection of the legal formalism. 2 It’s a combination of the analytical positivism

and sociological approaches. Realists define law as generalized prediction of what the courts will

do. They believe that certainty of law is a myth and its predictability depends upon the set of

facts which are before the court for decision.

Justice Oliver Wendell Holmes: Bad Man Theory

1
Brian Leiter, ‘American Legal Realism’ (2002, University of Texas Law, Public Law Research Paper No. 42
2
ibid

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 Oliver Holmes was one of the proponents of American realism. In his book, Common Law,

Holmes defined law as predictions of what courts will decide. According to him, law is derived

from judicial decisions enforced by the state. This view of law considered other factors that

influenced a legal system rather than concentrating on “pure law”. Such factors include

philosophy and economics. Holmes held the opinion that law should be applied as a practical

social science that responds to the actual social needs of a highly industrialized society. He was

of the opinion that good law comprised of not only logic, but also experience, thus making it

applicable.

He held the opinion that law and morality should be separated in order to be able to fully

understand the law. Instead of using the standards of morality, the common law standard of a

“reasonable and prudent” man would be used in determining the liability of a person. According

to him, lawyers were to concern themselves only with what the law is and not what it ought to

be. Karl N. Llewellyn

In his article, Some Realism about Realism (1931), Llewellyn enumerates the following themes

as common to the general realist approach to method: a) Law is not static, and should be

considered and investigated as if in flux. b) Law is to be considered as a means to a social end. c)

Because society is in a continuous process of change and is often ‘ahead of the law’ in its

attitudes, continuous reexamination and revision of the law is essential. d) ‘Is’ and ‘ought’ must

be divorced—if only temporarily—for purposes of legal study. ‘e) Traditional concepts and legal

rules cannot provide a full description of what the courts do. f) Law has to be evaluated in terms

of its impact and effects on society.

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Scandinavian legal realism

Scandinavian Legal Realism was a version of legal positivism that sought a strict separation

between law and politics and law and morality. 3 Like its American counterpart, it was not viewed

as a jurisprudential movement, but as part of the broader political cultures. It was founded by

Axel Hagerstrom and Alf Ross who highlighted the gap between legal rules and their practical

application, contending that judicial decisions were inherently subjective. This perspective

reacted against the idea of a clear-cut majoritarian narrative, advocating for a recognition of the

judicial discretion and interpretation involved in legal decision-making.4

Feminist Legal Theory

The development of the Feminist movement is categorized in three waves. The First Wave

originated in the late 19th and early 20th century. The key concerns included access and equal

opportunities for women, with the United States focusing mainly on the right to vote while those

in Europe focusing on education, employment and marriage laws. It led to women being granted

the right to vote in the US vide the 19th Amendment to the Constitution and reforms in

education, workplace, professions and healthcare. It only focused on women’s public life.

The second wave developed in the late 1950s-70s focusing on women liberation of oppressed

groups that included homosexual movements, civil rights and black power movement. 5 This

wave highlighted the different kinds of oppression that women experienced including sexism,

racism and classism. It advocated for equal rights for women just like men in pursuing careers.

3
Jes Bjarup, ‘The Philosophy of Scandinavian Legal Realism’ (2005, 18 Ratio Juris 1).
4
ibid
5
Patricia Smith, “Feminist Jurisprudence”, in A Companion to Philosophy of Law and Legal Theory (D. Patterson
ed., Blackwell, Oxford, 1996)

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The third wave developed in the 1990s and focused on women’s interests that had not been

focused on by the two waves. It focused on middle class women of color in the developing world

who were left out by the first and second waves. It emphasized the role of culture, media and

technology in shaping women’s identities of race, ethnicity and gender.6

Conclusion

In examining American legal realism, Scandinavian legal theory, and feminist legal theory, it

becomes evident that these modern legal perspectives share a common thread of reacting against

a perceived majoritarian bias in legal thought. The inherently reactionary nature of these theories

underscores the ongoing dialogue between legal philosophy and the evolving values of society,

challenging the notion that legal thought exists in a vacuum detached from the broader

sociocultural context.

6
Bridget J. Crawford, Toward a Third Wave Feminist Legal Theory: Young Women, pornography and the praxis of
Pleasure (2007) Pace Law Faculty Publications, Paper 243

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