Legal Theory and Jurisprudence

Recap
Natural Law Theory
A system of law or the validity of law does not solely depends of rules
or it is not separate from external factors or considerations, such as
morality, religion, etc…
 Marxism and Law

• One of the pivotal observations made by Marx is that society is

divided into classes, mainly the bourgeois and the proletarian.

• And these classes in society is constantly in conflict, they are opposing

forces.
 Law and Marxism

• Marx also explains that when the proletarian, the working class sell
their labour, they become what he calls alienated. Marx describes
them as alienated because the working class are deprived of the fruits
of their labour by the bourgeois who owns the means of production,
i.e. the factories, the raw material, etc...
 Law and Marxism

• Marx observed that laws are in fact used to maintain the natural
order of things, that is, to provide the bourgeois the tools and
protection to exploit the means of production for their profit at the
expenses of the proletarian.

• This means that the law represents the interest of the dominant class
and maintains the status quo between the bourgeois and proletarian.
 Law and Marxism

• According to Marx, law, in fact, is a vehicle of class oppression and a

maintenance of the status quo which includes the privatisation of
natural resources.

• Marx also argues that the class controlled by the ruling class is not
free but in fact we are enslaved. It is true, we are not in chains
anymore, we are not whipped, but that does not mean we are free.
 Law and Marxism

Marxism unveils that law is more than rules, morality or other non-
rules standards. A system of law includes policies as well, whether
these policies are moral or immoral.

• For Marx, the main policy of the law was to oppress the working class
for the profit of the bourgeois.
• In the Communist Manifesto, the most famous book for which Marx is
known for, Marx states that the system of law is but the will of the
ruling class made into law for all.
 Law and Marxism
• Marxism is important because it denounces the false universality and
ideologies of the law in practice. In theory, law might be rules, and
about justice, morality but in practice, the law is primarily, if not the
only tool used by the ruling class to control the means of production
and to privatise property.
 Critical Legal Studies Movement
• Critical legal studies (CLS) is a theory which states that the law is
necessarily intertwined with social issues and politics.

• Critical legal studies theory challenges law's alleged impartiality,

neutrality and universality.
 Critical Legal Studies Movement
• A simple glance at society establishes how diverse our society has
become.

• Yet, the majority of lawyers, legislators, and judges are middle-aged to

elderly, middle to upper class men and women in Mauritius. Can the
law be said to be impartial when a group rather unrepresentative of
society is responsible for crafting the law, executing the law, and
resolving disputes about the law?
 Critical Legal Studies Movement
• Critical theorists argue that law operates as a tool of privilege and power in
historical and contemporary society.
• In other words, CLS states that the law supports a power dynamic which
favors the historically privileged and disadvantages the historically
underprivileged. CLS finds that the wealthy and the powerful use the law as
an instrument for oppression in order to maintain their place in hierarchy.

See for example:

• Section 4 of the Public Officers Protection Act;
• Attorney General v Director of Public Prosecution
 Critical Legal Studies Movement
Three themes of CLS

• Firstly, law is politics.

• Secondly, law is indeterminate.
• Thirdly, law will only change when society changes.
 Law is politics
• CLS scholars share the notion that law is politics—in other words, that
law and politics are indistinguishable from one another.

• According to CLS theorists, however, the law is not separate from the
political realm and its disputes.
 Law is politics
• CLS exposes the flaws legal theory and practice.

• It argues, for example, that judicial objectivity is impossible because

political neutrality or philosophical objectivity cannot exist.

• As Allan C. Hutchinson, a CLS theorist, wrote: "The judicial emperor,

clothed and coifed in appropriately legitimate and voguish garb by the
scholarly rag trade, chooses and acts to protect and preserve the
propertied interest of vested white and male power."
 Law is indeterminate
• It is possible to reach sharply contrasting conclusions in individual
cases – see also legal realism

• Critical theorists argue that existing gaps, conflicts and ambiguities are
not anomalies or exceptions but are widely present even in easy
cases.
 Law will only change when society changes
• If the status quo is that law exists for the powerful and the wealthy,
law will only change if the powerful and wealthy become either
concern with the interests of the lower classes or their interests will
be prejudiced if the law does not change.