The Traditions Of Jurisprudence Commerce Essay

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THIS SCHOOL OF JURISPRUDENCE ENERGETICALLY DEFINED ITSELF IN OPPOSITION TO THE TRADITIONS OF JURISPRUDENCE TAUGHT AT US UNIVERSITIES THE TIME AND FOR THIS REASON IT IS RECOGNISED AS A 'NEW DEPARTURE'.

IN THE 1970s TWO OPPOSED GROUPS EXISTED AT US LAW SCHOOLS. THE RADICAL BODY OF YOUNGER FACULTY MEMBERS AND THE CONSERVATIVE SENIOR PERSONNEL OF LAW FACULTIES.

AT YALE THE POLITICAL TENSIONS LED TO SIX YOUNGER MEMBERS BEING REFUSED TENURE BEING CRITICAL OF THE STATUS QUO. THIS INSTITUTIONAL HOSTILITY CULMINATED IN THE START OF THE CLS AT THEIR CONFERENCE HELD AT THE UNIVERSITY OF WISCONSIN LAW SCHOOL IN 1976 WITH THE AIM OF BUILDING SOCIAL AND PROFESSIONAL LINKS.

IDEOLOGIES OF CLS

OPENNESS TO ALL INTELLECTUAL APPROACHES, WITH A STRONG INFLUENCE OF AMERICAN REALISM AND MARXISM.

THEY ACCEPTED THE SCEPTICISM OF FORMALIST APPROACHES TO LAW (AS EVIDENT IN THE AMERICAN REALISM) AND ACCEPTED THAT THE STUDY OF THE LEGAL SYSTEM WAS FOUND IN THE PERSONAL AND POLITICAL FACTORS.

HOWEVER, THE DIFFERENCE BETWEEN AMERICAN REALISM AND CLS IS THAT WHILE THE AMERICAN REALISTS WERE SCEPTICAL ABOUT THE LEGAL FORMATION, THEY BELIEVED THAT THEY COULD IMPROVE THE LEGAL SYSTEM BY ASSISTING LAWYERS AND STUDENTS UNDERSTAND HOW THE LAW REALLY WORKS IN PRACTICE.

THE AMERICAN REALISTS BELIEVED THAT THE UNCERTAINTY OF LEGAL RULES SHOULD BE REPLACED BY A FORM OF POLICY SCIENCE THAT DREW INFORMALLY UPON THE WISDOM OF THE SOCIAL SCIENCES TO INFORM LEGAL JUDGMENT. (IN OTHER WORDS THEY WANTED TO STUDY HUMAN BEHAVIOUR AND ITS RELATION TO THE LAW)

CLS MEMBERS BELIEVE THAT SOCIETY IS CHARACTERISED BY INEQUALITY AND OPPRESSION AND THE LAW PLAYS A PART IN THIS BY PERPETUATING THIS AND PROMOTING THE STATUS QUO.

CLS AIMED TO EXPOSE THE INJUSTICE AND EXPLOITATION THROUGH THE USE OF SOCIAL SCIENCE, NOT ONLY TO INFORM LEGAL JUDGMENT BUT RATHER TO DEVELOP A TRUE SCIENCE OF LAW AS A SOCIAL PHENOMENON.

THROUGH NEO-MARXISM A MAJOR INFLUENCE ON CLS A SOCIAL EQUILLIBRIUM SEEKS TO BE ACHIEVED. (NEO-MARXISM PLACES A GREAT EMPHASIS ON THE ROLE OF SOCIAL ALIENATION IN SHAPING THE CONTORS OF SOCIAL LIFE & SEEKS TO ADOPT A THEORY OF POLITICS THAT MAKES OVERCOMING ALIENATION CENTRAL TO THE POLITICAL OBJECTIVE).

CLS MODEL OF US SOCIETY?

WHILE DWORKIN AND RAWLS SAW US SOCIETY AS RULED BY CONSENSUS, CLS SCHOLARS SAW CONFLICT AS THE DEFINING QUALITY NOT ONLY OF THE USA BUT OF ALL WESTERN DEMOCRACIES.

THEY SAW CLASS DOMINATION AND SYSTEMATIC INEQUALITY IN THE US MASKED BY AN OFFICIAL DISCOURSE OF EQUALITY AND FREEDOM. (IN OTHER WORDS THE 'LIE' COVERING REALITY)

THEY IDENTIFIED THE HIERACHICAL NATURE OF THE US SOCIETY, WHICH CONTRADICTS THE TEXTS SUCH AS THE BILL OF RIGHTS AND ITS "EQUALITY".

CENTRAL TO THE CLS MOVEMENT IS THE CONCEPT OF ALIENATION, WHICH IS MORE CONCERNED WITH THE HIERACHICAL NATURE OF SOCIETY WITH DAMAGING CONSEQUENCES.

(NOTE: MARX'S CONCERN WITH ALIENATION REVOLVED AROUND THE ALIENATION OF WORKING-CLASS MEMBERS OF SOCIETY.)

CLS SCHOLARS GABEL AND HARRIS ARGUE THAT IN CAPITALIST SOCIETIES THE SOURCE OF ALIENATION IS FOUND IN THE PREVALENCE OF HIERACHY AS THE DOMINANT FORM OF SOCIAL ORGANISATION. ALIENATION IS THE INABILITY OF PEOPLE TO ACHIEVE GENUINE POWER AND FREEDOM THAT CAN ONLY COME FROM THE SUSTAINED EXPERIENCE OF AUTHENTIC AND EGALITARIAN (characterized by belief in equal political, economic, social, and civil rights for all people) SOCIAL CONNECTION.

THE PREDOMINANCE OF HIERACHY IN SOCIETY, BOTH IN PRIVATE AND PUBLIC LIFE LEADS TO A PROFOUND LOSS OF THE SENSE OF SOCIAL CONNECTION. PEOPLE COME TO EXPERIENCE ONE ANOTHER AS POWERLESS AND PASSIVE IN RELATION TO THE HIERACHIES WITHIN WHICH THEY WORK AND LIVE.

THIS COLLECTIVE POWERLESSNESS IS MANIFESTED IN THE SOCIAL ORDER AS INDIVIDUALS INTERNALISE THIS POWERLESSNESS IN THE FORMATION OF THEMSELVES.

THEREFORE ALIENATION AND POWERLESSNESS BECOME A SELF-GENERATING SOURCE OF SOCIAL REPRESSION THAT LEADS TO THE REPRODUCTION OF CLASS, RACE AND SEX HIERACHIES FROM GENERATION TO GENERATION.

CLS BELIEVE THAT A MODERN STATE SHOULD AT LEAST PERSUADE (PSEUDO-PERSUASION) THE PEOPLE ITS GOVERNING THAT THE EXISTING ORDER IS BOTH JUST AND FAIR AND THAT THEY DESIRE IT.

THE ROLE OF LAW

TO PERPETUATE HIERACHY AND ALIENATION IN THE US SOCIETY BY LEGITIMATING THE UNJUST SOCIAL ORDER.

THIS IS DONE THROUGH LEGAL RITUAL AND LEGAL REASONING. HOW IS THIS POSSIBLE? THE LAW ACCEPTS SOCIETY AS IT IS HOWEVER UNJUST. FOR EXAMPLE, LABOUR LAW ALLOWS WORKERS CERTAIN PROTECTIONS BUT NEVER CHALLENGES THE EXPLOITATIVE BASIS OF THE RELATION BETWEEN CAPITALIST AND WORKER.

CLS ACCEPTS THAT LEGAL RIGHTS ARE CRUCIAL AS SYMBOLS OR SOCIAL ASPIRATIONS, HOWEVER, IN ACTUAL SOCIETY SUCH RIGHTS OR PROMISES ARE ONLY REALISED PARTIALLY.

THEREFORE CLS ARE NOT OPPOSED TO LEGAL RIGHTS & HUMAN RIGHTS (SEE FREEMSN P 249 OF HANDBOOK) BUT FORMAL RIGHTS IN THEMSELVES DO NOT GUARANTEE FREEDOM FROM HUNGER, SICKNESS, IGNORANCE OR ANY OTHER SOCIAL ILLS. THE STRUGGLE FOR RIGHTS SHOULD NEVER BE ALLOWED TO DISPLACE POLITICAL AND ECONOMIC STRUGGLES OF PEOPLE SEEKING FREEDOM FROM OPPRESSION.

LEGAL EDUCATION

THE EDUCATION OF LAW STUDENTS AND THE MANNER IN WHICH THEY ARE INTERVIEWED FOR JOBS SENDS A MESSAGE THAT LAW SCHOOLS AND LEGAL FIRMS PRODUCE A BODY OF LEGAL PROFESSIONALS WHO OBEY AND REPRODUCE THE HIERACHIES OF THEIR PROFESSION AND THE UNJUST SOCIETY WHICH THEY SERVICE. (READ P 252 HANDBOOK)

THE CLS CRITIQUE OF LAW:

AN INTELLECTUAL RESPONSE TOWARDS THE DOMINANT TRADITIONS OF JURISPRUDENCE. CLS SCHOLARS SEEK TO EXPOSE INEQUALITIES AND EXPLOITATION INHERENT IN THE US LEGAL SYSTEM

PRACTICIONERS WORKING IN THE SPIRIT OF CLS IDEALS SHOULD ADOPT POWER-ORIENTED AS OPPOSED TO A RIGHTS-ORIENTED APPROACH TO LEGAL PRACTICE. THE RIGHTS APPROACH DOES NOT ADDRESS A PRECONDITION FOR BUILDING A SUSTAINED POLITICAL MOVEMENT. FURTHER, RIGHTS-CONSCIOUSNESS TENDS TO REINFORCE THE ALIENATION AND POWERLESSNESS.

POWER-ORIENTATED LEGAL PRACTICE SEEKS TO DEVELOP RELATIONSHIPS OF GENUINE EQUALITY AND MUTUAL RESPECT WITH THE CLIENT. THE LAWYER SHOULD CONDUCT HERSELF/HIMSELF IN A MANNER THAT DEMISTIFIES THE SYMBOLIC AUTHORITY OF THE STATE. THE LAWYER SHOULD ALWSY SEEK TO RESHAPE THE WAY CONFLICTS ARE REPRESENTED IN LAW, LIMITING THE CHARACTER OF LEGAL IDEOLOGY AND BRINGING OUT THE TRUE SOCIO-ECONOMIC AND POLITICAL FOUNDATIONS OF A LEGAL DISPUTES.

RELEVANCE OF CLS TO SOUTH AFRICA

LIMITATIONS OF THE RIGHTS-ORIENTATED LEGAL PROCESS ALERTS SA TO BE TOO CAREFUL IN RELYING ON THE PROVISIONS IN THE CONSTITUTION.

WITH REGARDS TO LEGAL EDUCATION C.R.M. DLAMINI COMMENTS IN THE SAME SPIRIT AS THAT OF CLS THAT THERE ARE RACIAL HIERACHIES IN SA THAT HAVE BEEN CONFIRMED RATHER THAN CHALLENGED BY SOUTH AFRICAN LAW SCHOOLS. LAW IS TAUGHT IN THE ABSTRACT SEPARATED FROM ITS SOCIAL CONTEXT. (READ P 255)

WITH REGARD TO A POWER-ORIENTATED APPROACH TO LEGAL PRACTICE, IT HAS A LIMITED IMPACT IN SA, HOWEVER, NELSON MANDELA'S LEGAL DEFENCES IN HIS TRIAL IN 1962 ON CHARGES OF INCITING AFRICAN WORKERS TO STRIKE SHARE THE STRATEGIES ADOPTED BY THE CLS. (READ P 256)

HOW IS THIS RELATED TO THE POWER-ORIENTATED APPROACH TO LEGAL PRACTICE?

IT WAS A HIGH PROFILE CASE THAT SHOWED HOW THE LEGAL SYSTEM WAS TURNED AGAINST ITSELF BY EXPOSING ITS INJUSTICE.

IT WAS A CASE THAT EXPOSED THE INJUSTICES OF A LEGAL-SYSTEM TO CHALLENGE ITS LEGITIMACY IN COMPARISON WITH THE APARTHEID LEGAL ORDER.

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