LegPhi Group 3

7/31/2019 LegPhi Group 3

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Group 3 August 1, 2012

Legal Philosophy Atty. Japhet Masculino


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Legal Realism Critical Legal Studies

Law and Economics Outsider Jurisprudence


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The realists eschewed the conceptual approachof the positivists and naturalists in favor of anempirical analysis that sought to show how

practicing judges really decide cases (see Leiter1998)

On their view, judicial decision is guided farmore frequently by political and moral intuitionsabout the facts of the case (instead of by legalrules) than theories like positivism andnaturalism acknowledge


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The class of available legal materials is insufficient to logicallyentail a unique legal outcome in most cases worth litigating atthe appellate level (the Local Indeterminacy Thesis);

In such cases, judges make new law in deciding legal disputesthrough the exercise of a lawmaking discretion; and

Judicial decisions in indeterminate cases are influenced by thejudges political and moral convictions, not by legal

considerations.

Though (3) is logically independent of (1) and (2), (1) seems toimply (2): insofar as judges decide legally indeterminatecases, they must be creating new law.


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CLS theorists emphasize the role of ideology in shapingthe content of the law. On this view, the content of the lawin liberal democracies necessarily reflects ideologicalstruggles among social factions in which competing

conceptions of justice, goodness, and social and politicallife get compromised, truncated, vitiated, and adjusted

The inevitable outcome of such struggles, on this view, is aprofound inconsistency permeating the deepest layers of

the law. It is this pervasive inconsistency that gives rise toradical indeterminacy in the law. For insofar as law isinconsistent, a judge can justify any of a number ofconflicting outcomes.


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At the heart of the CLS critique of liberal jurisprudence isthe idea that radical indeterminacy is inconsistent withliberal conceptions of legitimacy.

According to these traditional liberal conceptions, theprovince of judges is to interpret, and not make the law.For, on this view, democratic ideals imply that lawmakingmust be left to legislators who, unlike appointed judges,are accountable to the electorate.

But if the law is radically indeterminate, then judges nearlyalways decide cases by making new law, which isinconsistent with liberal conceptions of the legitimatesources of lawmaking authority.


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The law and economics movement argues for the value ofeconomic analysis in the law both as a description about howcourts and legislators do behave and as a prescription for howsuch officials should behave.

Many areas of law, esp. the great common law fields ofproperty, torts, crimes, and contracts, bear the stamp ofeconomic reasoning. It is not a refutation that few judicialopinions contain explicit references to economic concepts.

Posner subscribes to the so-called efficiency theory of thecommon law, according to which the common law is bestexplained as a system for maximizing the wealth of society

More influential than Posners descriptive claims is his

normative view that law should strive to maximize wealth.


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According to Posner, the proper goal of thestatutory and common law is to promote wealthmaximization, which can best be done by

facilitating the mechanisms of the free market. Posners normative view combines elements of utilitarian

analysis with a Kantian respect for autonomy On the utilitarian side, markets tend to maximize wealth

and the satisfaction of preferences. In a markettransaction with no third-party effects, wealth isincreased because all parties are made better off by thetransaction-otherwise there would be no incentive toconsummate the transaction-and no one is made worse

off.


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On the Kantian side, the law should facilitatemarket transactions because market transactions

best reflect autonomous judgments about the value

of individual preferences

Kantian theory states:

The good will is not good because of what its effects or

accomplishes or because of its adequacy to achieve someproposed end; it is good only because of its willingness, itis good onto itself.


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So-called outsider jurisprudence is concerned withproviding an analysis of the ways in which law isstructured to promote the interests of white males and toexclude females and persons of color.

For example, one principal objective of feministjurisprudence is to show how patriarchal assumptionshave shaped the content of laws in a wide variety of areas:property contract, criminal law, constitutional law, and

the law of civil rights.

Additionally, feminist scholars challenge traditional idealsof judicial decision-making according to which judgesdecide legal disputes by applying neutral rules in an

impartial and objective fashion.


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Critical race theory is likewise concerned to point up theway in which assumption of white supremacy have shapedthe content of the law at the expense of persons of color.

Additionally, critical race theorists show how theexperience, concerns, values and perspectives of personsof color are systematically excluded from mainstreamdiscourse among practicing lawyers, judges, andlegislators.

Finally, such theorists attempt to show how assumptionsabout race are built into most liberal theories of law.


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Between 1961 and 1989, more than two hundred people were shotand killed by border guards while attempting to escape thecommunist German Democratic Republic (East Germany) into WestGermany.

One particular instance of a fatal border crossing occurred on February5, 1989 when two East Germans, Chris Gueffroy and Christian Gaudian,attempted to escape the German Democratic Republic. Theysuccessfully made it to the final border fence, where they werespotted by border guards and shot. Chris Gueffroy was killed andChristian Gaudian was wounded and arrested.

The specific laws in the GDR at the time of the shooting permittedkilling unlawful border crossers only in serious cases. According tospecific, GDR law, crossing becomes a serious case when it iscommitted along with others, with particular intensity or if the act isaccomplished with the use of dangerous means or methods.


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In the case under scrutiny, Chris Gueffroy and Christian Gaudianwere crossing together with the use of a grappling hook(which is considered a dangerous method) to scale the fences.

Based on the methods of these border crossers, the law explicitly statesthat firing is to be permitted. Although there is a provision written intothe law which states that in firing The life of persons is to be spared tothe extent possible, this provision is vague and was contrary to thesoldiers training and what they were encourage to do.

Nine months after his death, the wall was opened, and East Germanswere allowed to begin traveling freely. The opening of the wall was themost dramatic event in the upheaval that brought about the ouster ofthe Communist Government in East Germany and the unification of East

and West Germany.


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The four border guards who participated in the shootingof these two East Germans were place on trial in 1991.

Defendant H was convicted of homicide and sentenced to

prison for three years and six months by the 23rd GrandCriminal Court of the Berlin State Court.

Defendant H has now appealed the State Courts verdictbecause he is unhappy with any prison sentence for an act

which he believes was legal within the GDR law that hewas subject to at the time of the act in question.


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A central argument in the defenses case will bethat a conviction for murder constitutes ex-postfacto laws in violation of the human rights

convention, which states:- No one shall be held guilty of any criminal

offense on account of any act or omission which did

not constitute a criminal offense under national orinternational law at the time when it was committed.Nor shall a heavier penalty be imposed than the one

that was applicable at the time of the criminal offense

was committed (German Law Journal).


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The defendant accused of firing the fatal shots, 27-year-old Ingo Heinrich, told the court at the time I

was following the laws and commands of the

German Democratic Republic.

But the judge, Theodor Seidel, said as he

pronounced the sentences, Not everything that

legal is right.

Documents

LegPhi Group 3