GS/Law 6761:  Theoretical Perspectives on Public Law & Administration:  Day 2

Approaches to study of public policy mentioned in Brooks:
    public choice
    class analysis

Philosophical approaches to law from the perspective of the function law plays in society.
Liberalism is
    Idealist:  builds on abstract ideals (liberty and equality), &

Functionalism concerned with how law actually functions; not so concerned with prescription
Functionalism inspired
    Legal positivism
    Legal realism
    Critical legal studies

August Compte
Stages of western philosophy
    Metaphysical (idealist)
    Positivism:   Scientific & most advanced stage
6 sciences are math, astronomy, physics, chemistry, biology & sociology

Emile Durkheim
Studies of population
Sociology should promote the moral cause of greater social harmony & cooperation
A moral community provides the milieu for greater self-realization

Leon Duguit
Human rights derived from duties related to social solidarity
Rights perform the function of promoting social solidarity
John Austin:  law is “orders backed by threats.”

Liberal utilitarianism could be considered closer to functionalism than idealism

Herbert Spencer

Social evolution
    Natural evolution is toward differentiation & this promotes liberty
Fabian Socialism (1844)
    Sidney & Beatrice Webb
    G.B. Shaw
    Collective ownership, regulation, provision of social support, taxation
    Social engineering
    Need neutral public service

New liberalism
    T. H. Green: positive liberty

American pragmatism
    John Dewey

Legal realism
    Human factor is central to understanding legal processes
    U.S.:  from early 1900s
    Sydney Peck (Osgoode):  mid-1960s
    Peter Russell:  B&B study
    Today – generally accepted

Functionalism in study of politics:  rule-making, rule-application, rule adjudication.  Approach now abandoned.

Critical Legal Studies
No objectively correct results exist
Liberalism contains contradictory principles (eg. liberty & equality) with no way to reconcile them
Law tends to reduce situations only to legal relations
Crits are against functionalism of any kind
Law is a “plastic medium of disourse that subtly conditions how we experience social life”
Law is a locus of conflicting theories
There’s no judging without politics
Focus on the politics of lawyers
Focus on achieving social goals through politics, not law

Feminist Legal Studies
Since 1970s
Feminist scholarship
Mary Wollstonecraft’s critique of status of women (1790)
Canadian feminist legal theory
Women’s specificity
Bezaire case & other 2 cases

Mashaw:  Greed, chaos & governance
-combines parts of public choice theory with economic analysis of law
Public servants (at least in U.S. federal bureaucracies) should be make important political decisions
More accountable
More ethical
Eg. of an economically backwards, politically motivated law:  California law on new car dealerships (300 miles apart)
Some people act from selfish motives; others from altruistic ones