Critical Legal Studies and Feminist Jurisprudence

Abstract

The theories about the relationship between law and morals discussed in Chaps. 2 and 3 and theories of constitutional interpretation in Chap. 4 by no means exhaust the available legal theories that have been prominent in the philosophical literature. In the debates about the validity of laws pertaining to the family and family relationships one will find not only variations of legal positivism and natural law theory, but approaches to the law that attempt to determine how legal decisions are made by judges. What is legal reasoning and how does it differ (if at all) from moral and political reasoning? How does a judge begin the process of legal reasoning? Is her choice of a guiding principle based on the self-evident nature of the principle, as would be recommended by natural law, or is it to be found in whatever policies and practices promote the general welfare, such that we can say “The law is whatever the judge says that it is”? The latter approach to legal reasoning, first developed in the United States in the 1920s and 1930s, is Legal Realism. It was a reaction to an earlier theory now called Legal Formalism. Another theory, influenced by Legal Realism and originating in the 1970s, is Critical Legal Studies. A fourth, partly influenced by both Legal Realism and CLS, is the radical version of Feminist Legal Theory. We will discuss these in order.