LLB290 Chapter Notes - Chapter 2: Social Forces, Critical Race Theory, Postmodern Architecture
Chapter 2 – Unlocking Legal Theory:
2.10: A Locked Gate:
oGrammar and vocabulary of legal theory
oTheories so fundamental that they ‘triggered fundamental rethinks about law and the way
it is understood.’ (pg 31)
oImportance of images and imagination in the understanding of law
oConsider the context of each theory – When? Who for? Why?
oTheories must be learnt within their context to be understood
oDevelop the tools to look closer and find benefits and flaws
2.20:
oTheories have their own NLDB
oNon-conventional legal theories: looks outside law’s rules and from the perspective of those
outside the law
oExtravert (non-conventional) accounts of legal theory
oCase studies show how legal theory is used by courts
2.30:
oDrunken Philosopher’s Song – Case Study:
Legal theories can never be understood without an understanding of context
Leads to jumbling and theorists sitting alongside others regardless of an entirely
different context and time in history
oCase studies demonstrate and explain ideas in legal theory, law and its relationship to
society
oThink about legal theory as the DNA of the law
2.40: Legal Theory as DNA:
oSo vital that it is obscured
oLegal theory is not immune from external changes
oOriginators: Hale, Coke and Blackstone
oOften contextual disparities are not given appropriate weight when considering these
theories
oLaw has locked onto some key principles
oHistory becomes fragmented overtime
2.50: The Influences of Declaring and of Legal Positivism:
oBelief that the law was perfected in the past and does not need to change, in line with
declaratory theory
oDeclaratory theory of law:
Developed in the 15th and 16th century
Law has always existed and is able to be found by judges whose job is to declare it
Involves the idea that judges do not make decisions but simply apply the pre-existing
law through legal reasoning
HOWEVER, ‘This theoretical position is… a fairy tale in which no-one any longer
believes. In truth, judges make and change the law.’ – Kleinwort Benson Ltd v Lincoln
City Council (pg 39)
oTheories tend to stick for a period, only to be changed in a very particular set of
circumstances, and all laws made within this period tend to be locked on one certain theory
oMany theories adopt ‘strict legalism’ which involves a failure to recognise the importance of
the context in which they developed – this is an introvert trait and extremely analprudic
oHLA Hart: recognised the problem with applying the same theory to different contexts, but
suggested that the law could be proactive and move ahead of political and social changes
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Why: theories must be learnt within their context to be understood, develop the tools to look closer and find benefits and flaws. 2. 20: theories have their own nldb, non-conventional legal theories: looks outside law"s rules and from the perspective of those outside the law, extravert (non-conventional) accounts of legal theory, case studies show how legal theory is used by courts. 2. 30: drunken philosopher"s song case study: Legal theories can never be understood without an understanding of context. 2. 50: the influences of declaring and of legal positivism: belief that the law was perfected in the past and does not need to change, in line with declaratory theory, declaratory theory of law: Developed in the 15th and 16th century. Law has always existed and is able to be found by judges whose job is to declare it. Involves the idea that judges do not make decisions but simply apply the pre-existing law through legal reasoning.
