Group 3 Legal Philosophy

August 1, 2012 Atty. Japhet Masculino

Legal Realism Critical Legal Studies Law and Economics Outsider Jurisprudence

The realists eschewed the conceptual approach of the positivists and naturalists in favor of an empirical analysis that sought to show how practicing judges really decide cases (see Leiter 1998)
On their view, judicial decision is guided far more frequently by political and moral intuitions about the facts of the case (instead of by legal rules) than theories like positivism and naturalism acknowledge

The class of available legal materials is insufficient to logically entail a unique legal outcome in most cases worth litigating at the appellate level (the Local Indeterminacy Thesis);
In such cases, judges make new law in deciding legal disputes through the exercise of a lawmaking discretion; and Judicial decisions in indeterminate cases are influenced by the judges political and moral convictions, not by legal considerations. Though (3) is logically independent of (1) and (2), (1) seems to imply (2): insofar as judges decide legally indeterminate cases, they must be creating new law.

CLS theorists emphasize the role of ideology in shaping the content of the law. On this view, the content of the law in liberal democracies necessarily reflects ideological struggles among social factions in which competing conceptions of justice, goodness, and social and political life get compromised, truncated, vitiated, and adjusted
The inevitable outcome of such struggles, on this view, is a profound inconsistency permeating the deepest layers of the law. It is this pervasive inconsistency that gives rise to radical indeterminacy in the law. For insofar as law is inconsistent, a judge can justify any of a number of conflicting outcomes.

At the heart of the CLS critique of liberal jurisprudence is the idea that radical indeterminacy is inconsistent with liberal conceptions of legitimacy.
According to these traditional liberal conceptions, the province of judges is to interpret, and not make the law. For, on this view, democratic ideals imply that lawmaking must be left to legislators who, unlike appointed judges, are accountable to the electorate. But if the law is radically indeterminate, then judges nearly always decide cases by making new law, which is inconsistent with liberal conceptions of the legitimate sources of lawmaking authority.

The law and economics movement argues for the value of economic analysis in the law both as a description about how courts and legislators do behave and as a prescription for how such officials should behave. Many areas of law, esp. the great common law fields of property, torts, crimes, and contracts, bear the stamp of economic reasoning. It is not a refutation that few judicial opinions contain explicit references to economic concepts. Posner subscribes to the so-called efficiency theory of the common law, according to which the common law is best explained 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.

According to Posner, the proper goal of the statutory and common law is to promote wealth maximization, 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 market transaction with no third-party effects, wealth is increased because all parties are made better off by the transaction-otherwise there would be no incentive to consummate the transaction-and no one is made worse off.

 On the Kantian side, the law should facilitate

market 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 some proposed end; it is good only because of its willingness, it is good onto itself.

So-called outsider jurisprudence is concerned with providing an analysis of the ways in which law is structured to promote the interests of white males and to exclude females and persons of color.

For example, one principal objective of feminist jurisprudence is to show how patriarchal assumptions have 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 ideals of judicial decision-making according to which judges decide legal disputes by applying neutral rules in an impartial and objective fashion.

Critical race theory is likewise concerned to point up the way in which assumption of white supremacy have shaped the content of the law at the expense of persons of color.
Additionally, critical race theorists show how the experience, concerns, values and perspectives of persons of color are systematically excluded from mainstream discourse among practicing lawyers, judges, and legislators. Finally, such theorists attempt to show how assumptions about race are built into most liberal theories of law.

Between 1961 and 1989, more than two hundred people were shot and killed by border guards while attempting to escape the communist German Democratic Republic (East Germany) into West Germany. One particular instance of a fatal border crossing occurred on February 5, 1989 when two East Germans, Chris Gueffroy and Christian Gaudian, attempted to escape the German Democratic Republic. They successfully made it to the final border fence, where they were spotted by border guards and shot. Chris Gueffroy was killed and Christian Gaudian was wounded and arrested.

The specific laws in the GDR at the time of the shooting permitted killing unlawful border crossers only in serious cases. According to specific, GDR law, crossing becomes a serious case when it is committed along with others, with particular intensity or if the act is accomplished with the use of dangerous means or methods.

In the case under scrutiny, Chris Gueffroy and Christian Gaudian were 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 states that firing is to be permitted. Although there is a provision written into the law which states that in firing The life of persons is to be spared to the extent possible, this provision is vague and was contrary to the soldiers training and what they were encourage to do.

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

The four border guards who participated in the shooting of 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 Grand Criminal Court of the Berlin State Court. Defendant H has now appealed the State Courts verdict because he is unhappy with any prison sentence for an act which he believes was legal within the GDR law that he was subject to at the time of the act in question.

A central argument in the defenses case will be that a conviction for murder constitutes ex-post facto 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 or international 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).

The defendant accused of firing the fatal shots, 27year-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.