Critical Legal Realism

A. Introduction The Critical Legal Studies Movement was formally organized at the First Conference on Critical Legal Studies held in May of 1977 at the University of Wisconsin.1 This jurisprudential movement has won adherents in France, in Germany, in Canada, in England where the First Critical Legal Conference was held there in 1981.2 In 1988, the movement was introduced in the Philippines as part of the course in Legal Theory in the College of Law of the University of the Philippines.3 For the critical legal realists, the task of a good law school is to provide a legal education which frees the minds of professors and students alike from the grips of the dominant liberal paradigm and to delegitimize the improper and illicit tie between law and politics.4 B. Critical legal Scholarship Scorned

The leading proponent of the Critical Legal Studies Movement is Professor Roberto Mangabeira Unger of Harvard University Law School. The critical legal realists consider this jurisprudential movement as particularly close to the modern school of legal realism. However, some critics question the legitimacy of this movement. Richard A. Posneri of the United States Court of Appeals and Senior Lecturer at the University of Chicago Law School contends that the critical legal scholars are the “illegitimate descendants of the modern legal realist school of jurisprudence.”5 G. Edward White, Professor of Law at the University of Virginia, claims that the kinship claimed by the critical legal scholars to the modern school of legal realism “is a grasp at legitimacy.” 6 Cornel West, Professor of Religion at Princeton University, brands the critical legal scholars as “the academic left subculture.” While Professor West finds many of the 1 2 3 4 5 6

Pascual, Legal Philosophy by Pascual, 346 McGill University Law Journal, 189; 18 Ottawa University Law Review, 89. In some law schools, the name of the course is Jurisprudence. Unger, R.M., The Critical Legal Studies Movement, 96 Harvard Law Review, 667. Posner, R., , 86 Michigan Law Review, 827, 829. White, G.E., The Inevitability of CriticalLegal Studies, 36 Stanford Law Review, 649, 650.

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criticisms leveled by critical legal scholars against the tradition of the dominant liberal paradigm persuasive, he admits that he has “not fully understood their animosity and hostility toward liberalism displayed in much of their writings.”ii C. Polemics v. Critical Legal Realism

The Critical Legal Realism is a critique directed against many aspects of the dominant liberal paradigm. Included therein are the “ways in which the language of impartiality, objective due process, and value-free procedures hide and conceal partisan operations of power and elite forms of social victimization.”7 The scholarship of the Critical Legal Studies Movement has naturally incurred the hostility and ire of the dominant liberal paradigm.8 Ronald Dworkiniii dismisses the thrusts of critical legal scholarship as “spectacular and even embarrassing failures.” 9 Some proponents of the dominant liberal paradigm have branded critical legal realism as another form of radical socialism,10 no different from the critical socialism of Karl Marx iv(1818-1883). As stated by Karl Marx, “the bourgeois concept of law is but the will of the dominant elite erected into legislation, a will whose essential character and direction are determined by material and economic conditions of the existence of the class.”11 A closer analysis of the critical legal realism of Roberto Mangabeira Unger and the critical social realism of Karl Marx will show that their common denominator is their disenchantment with 1) the elitist tendencies of the dominant liberal paradigm, 2) the concealed intentions and judgments behind the legal concepts and ideas which the dominant liberal paradigm has managed to include, directly or indirectly, into the legal 7

West, C. Brendan Brown Lectures: Reassessing the Critical Legal Studies Movement, 34 Loyola University Law Review, 265, 269-270. 8 Ewald, W., Unger’s Philosophy: A Critical Legal Study, 97 Yale Law Journal, 665; Carrington, P., Of Law and the River, 34 Journal of Legal Education, 227. 9 DWORKIN, R., LAW’S EMPIRE, 274. Harvard university Press, Cambridge. 10 Ewald, W., supra., 733, 741-753 11 THE COMMUNIST MANIFESTO, Part II, 47. Possony, S.T., Editors, Chicago Press Co., Chicago; MARXISM AND LAW, Bierne, B. and Quinney, R., Editors, Chicago Press Co., Chicago.

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order, and 3) the belief that the system of distribution of the material and social goods is just and in the best interest of the people, and, therefore, inviolable.12 However, the difference between the two theories is that the critical social realism of Marx is leftist oriented while the critical legal realism of Unger is not. Unger stated that his, “social theory is an alternative to Marxism”13 not a reaffirmation but a staunch denial of the bourgeois plan of social division and hierarchy.14 D. Deconstruction of Dominant Legal Paradigm The term “deconstruction” is used by the Critical Legal Studies Movement as a method or technique of: 1) stinging inquiry and analysis of the tendencies, beliefs, attitudes, and interpretations of the dominant liberal paradigm, and 2) internal reformation and development of the ideas and concepts of the dominant liberal paradigm by the presentation of the rationale or justification for the censure and the offer of alternative solutions.v 1. Trashing the Tradition of the Dominant Legal Paradigm

The Critical Legal Realists have discovered that in the liberal legal order, there is a free rather than a just society characterized by widening divisions and sharpening hierarchies

and

a

jealous

special-interest

economy

marked

by

exploitative,

individualistic, and possessive propensities to control the social, economic, political, and legal processes of society through the subtle use of power and resources.15 Three undesirable situations in the contemporary liberal order were identified by the critical legal realists. These are: 1) the state has become the organization of the dominant liberal class; 2) the law has become the rationalizing instrument of alienation 12

Pascual, Legal Philosophy by Pascual, 350 UNGER, R., FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY, 1. 14 Unger, R., The Critical Legal Studies Movement, 96 Harvard Law Review, 565, 666. 15 Ibid., 112-113. 13

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and oppression yielding concessions to the people only when absolutely necessary in order to avoid protests and contradictions; and 3) the social structure has become so divided and hierarchied that status and position therein are being determined by irrelevant inequalities.16 Unger agrees that the tradition and propensities of the dominant liberal paradigm reveal its class essence.17 2. Internal reformulation of the Dominant Legal Paradigm

The critical legal realists have gone beyond their analysis of the traditions of the dominant liberal paradigm at the first stage of the deconstruction process. They envision a post-liberal socio-legal order.18 a. Rationale and Justification for the Censure

The justification for trashing the contemporary liberal legal order is to open up the elitist discourse, agenda and practice hiding behind jural construct and categories. These jural constructs and categories were posited precisely to nurture the law as an effective means of balancing conflicting or overlapping claims, demands and expectations of the different sectors of society.19 However, these constructs and categories have been abused through subtle and sophisticated ways by the dominant liberal paradigm to give them different casts and meanings. The critical legal realists discuss the 1) rule of law; 2) separation of governmental powers; 3) objectivism and formalism; 4) judicial activism; and 5) idealistic and cynical concepts of democracy. 16

Johnson, C., Do You Sincerely Want to be a Radical?, 36 Stanford Law Review, 147; Schwartz, L., With Gun and Camera Through Darkest CLS-Land, 36 Stanford Law Review, 413. 17 Unger, R.M., The Critical Legal Studies Movement, 67. 18 Ibid., 580. 19 Pascual, Legal Philosophy by Pascual, 353.

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1. The Rule of Law This principle is traceable to Aristotle. The rule of law is preferable to that of a single person.20 In the phrase “the rule of law”, the noun “rule” is best understood with regnum, which means reign and sovereignty of the law. 21 This rule means that conduct must conform to the formal and impartial norms and values of the law suggested by the phrase “a government of laws, not of men.” Aristotle stated that the moral, political and economic corruption of a society begins the very moment the normative principle of the rule of law is abused. It does not matter whether the ruler or leader is generous or compassionate. What is important is that the hierarchies of power and wealth are materialistic values and difficult to handle even for a philosopher-king, let alone persons in authority who take advantage of unintended consequences of governmental actions. The rule of law is not a license for extemporaneous and arbitrary exercise of authority but a limitation on the far-reaching exercise of political power and economic authority. In dominant liberal society, this principle of the rule of law has become an empty mechanism for the protection of the people. It has become a means of oppression. The dominant liberal paradigm has managed to conceal the struggle of the disadvantaged class to obtain the benefits of positive equality promised by the constitution. The principle of “the rule of law has become another ideological and rhetorical ruse by which the elite coteries within society transmit false consciousness to the already disadvantaged segment of society.”22

20

ARISTOTLE, THE POLITICS, III, 16, 3. Jowett Translation. Clarendon Press, Oxford. Ibid., III, 16, 5. 22 Belloti, R. A., The Rule of Law and the Critical Legal Studies Movement, 24 University of Western Ontario Law Review, 67. 21

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2. Separation of Governmental Powers The issue in this principle involves the basic separation of powers. It involves more than a question of checks and balances on the exercise of governmental powers. It is concerned with the direct and indirect confrontation of core interests and functions between the legislative and executive power vis-à-vis the legislative power and vice versa.23 The purposive elements of this principle are to safeguard liberty by preventing the concentration of governmental authority in a single person or body of persons, to ensure efficiency in the performance of governmental functions, and to fix responsibility and accountability in the exercise of such functions. This principle has been obscured by the fact that to a great extent the different branches of government have become the means for power and wealth of the dominant liberal class. The contemporary liberal order “has become politicized to such an extent that governmental powers are no longer separated, they are not even shared.” This is manifested in the performance of the designated functions of the distinct branches of the government. 3. Objectivism and Formalism These techniques have been utilized by the dominant liberal class to mask its maintenance of the status quo. The objectivism assailed by the critical legal realists is not the cognizable extrinsicality of legal concepts and legal rules. What they have assaulted is the liberal view that the contemporary legal order, including the built-in institutional structures that undergird it, is already sufficient to sustain society and, therefore, no reason exists to complain about it.24

23 24

Pascual, Legal Philosophy by Pascual, 360. Unger, R.M., The Critical Legal Studies Movement, 565, 568.

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The formalism attacked is not so much the application of legal rules on the facts involved in a conflict of interests as it is: 1) over-dependence on legal rules; and 2) assumption that the legal order is non-partisan in the adjustment of conflicting interests. This kind of formalism has resulted in the separation of the underclass from the protection of the law to which they are entitled to.25 4. Judicial Activism Judicial activism is also known as judicial legislation. What infuriates critical legal realists is the abuse of the courts of the text of a statute which is not otherwise indeterminate. Liberties with the statutory text have been taken by courts either by creating different rules not fairly implied in the statute or by contradicting the intent of the lawmakers. Judicial activism, according to the critical legal realists, is nothing but a euphemism for avoiding the principle of separation of powers. The main concern of the critical legal realists is the danger of illegitimate decisions. Justice Oliver Wendell Holmes has been cited to support judicial activism, although he spoke not in absolute terms. He said that “courts legislate interstitially; they are confined from molar to molecular motion.” While judicial activism cannot be avoided, nevertheless, such activity is proper only when there are interstices or gaps in the text of the statute under question. If there are none, it cannot be exercised. Courts cannot enlarge the scope of a statute to include matters beyond its text or import. Judicial activism based on molecular to molar motion is condemnable on several grounds: 1) it reflects only the personal or collective prejudices of the judges on what the legal rule should be; 2) it is an arrogant claim by a few unelected judges of veto power over legislation; 3) the legislators who are the representatives of the people an politically accountable to them, not the judges with an almost lifetime tenure, are the 25

Idem.

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ones to make, modify, change, or repeal legislation; 4) courts should have no advantage over elected legislators and the former are to put into effect legislation regardless of their disagreement with the wisdom of the legislation, except when it is unconstitutional; 5) legislative facts and assessment of policy questions are entirely different from judicial facts and consideration of actual cases; and 6) courts have no moral and legal bases to create or contradict rules or policies merely on advisability.26 The indeterminacy of laws enacted by the legislature appears in two forms. First, when they are vague. Second, when they provide inconclusive guidance as to how persons are to act in the performance of their obligations or in the exercise of their rights.27 Although it may appear that these are permissible cases wherein courts may exercise judicial discretion, the issue on separation of powers is still taken into account. The specific commentary is that it is the better part of wisdom to “send out warning signals through dictavi or similar devices.” The reason for this approach is that dicta, whether judex dictavii or obiter dictaviii are harmless for they are disowned by the ratio decidendiix.28 Thus, they do not qualify as judicial precedent. Another point given emphasis by the critical legal scholars is that judicial policymaking dulls the cutting edge of pure analytical reasoning. Analytical reasoning is replaced by political reasoning whenever courts engage in judicial policy-making.29 Judicial activism is an abdication of judicial neutrality and, what may even be worse, a concealment of the real grounds for the so-called decision. It, then, becomes a mask to hide illegitimate exercise of judicial power. 5. Idealistic and Cynical Concepts of Democracy

26

Pascual, Legal Philosophy by Pascual, 364 Fishel, R., Some Realism About Critical Legal Studies, 41 University of Miami Law Review, 505. 28 Cardozo, B., Law and Literature in JURISPRUDENCE IN ACTION, 47 29 Klare, K., THE POLITICS, iv. 27

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The critique against the idealistic version of democracy is that it is awash with inapt hope on and misplaced confidence in the majoritarian rule and the theory of the consent of the governed. Abuses of the will of the majority and of the consent of the governed are common. In the case of the principle of the majoritarian rule, sometimes, no heed is given to the varying claims, demands and expectations of the people. In the case of the principle of the consent of the governed, critical legal realism agrees only on its basic premise that consent is necessary because nobody really has an a priori right or claim to govern anybody. The problem arises when this principle is exploitatively used and applied.30 The dominant liberal paradigm has manipulated the people, confining the concept of consent of the governed to involve only periodic elections to or rotations in offices at the different levels of government. For the critical legal realists, both the intellectual constructs of majoritarian rule and consent of the governed have been subtly manipulated by the dominant liberal paradigm to mask social divisions and material hierarchies it has imposed on society. The critique against the cynical type of democracy is that the dominant liberal paradigm has virtually gained control of the government as well as the monopoly of the financial, production, commercial, and monetary involvements of the country.31 The dominant liberal class would argue that it has occurred only after hard, rugged competition. Although there is hard and rugged competition, it is indisputable that such contest is still among the elites themselves. The other members of the society, not belong to that class, become social victims. Robert Unger points out that the elites who shrewedly seek the support of the people through the election and other established representative institutions may just stop doing so,32 especially when the domination of the legal order has reached its maximum degree. The realization of such would lead make the dominant liberal paradigm more insulated from being accountable to the public. 30 31 32

Pascual, Legal Philosophy by Pascual, 372. Unger, R.M., The Critical Legal Studies Movement, 96 Harvard Law Review, 589. Ibid., 581.

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b. Transformation of the Liberal Legal Order There are two basic means for transforming the liberal legal order dominated by avid capitalism. These are the norm of positive equality and the norm of democratic republicanism.33 1. Positive Equality The transforming norm of positive equality is traceable to Aristotle, who posited the concept of fair equality as a jural postulate of natural law. 34 It has become the basis for the distribution of the social and material goods of society depending upon individual effort and merit.35 In Guido v. Rural Progress Administration36 and Republic of the Philippines v. Baynosis37, Justice Jose P. Laurel developed the idea that positive equality is a categorical egalitarianism. He found nothing cunning in the dimensions of the norm of positive equality. These dimensions mentioned are: 1) equality of opportunity; 2) equality before the law; 3) equality between values given and received; and 4) the equable sharing of social and material goods on the basis of efforts exerted in their production. Critical legal scholars emphasize that the transforming norm of positive equality is not so much the production of social and material goods as it is the fair and equable distribution thereof on the basis of individual effort and merit so that none should be wanting. This transforming norm is the best constitutional security not only against social and material divisions but also against the dichotomy of legal relations in terms of

33

Bauman, R. A., The Communitarian View of Critical Legal Studies, 33 McGill Law Journal, 295, 346. 34 Legal Philosophy by Pascual, 373. 35 ARISTOTLE, THE POLITICS, Book V, Chapter 2. Ross Translation. Oxford University Press, London. 36 84 Phil. 847. 37 96 Phil. 461.

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the places occupied by individuals in the social structure. 38 The rationale is that it tilts the enviable objects of human desires on the side of the disadvantaged class in society. The post-liberal society claims that there is indeed social, political, economic, educational, and legal equality.39 However, the equality envisioned is still dependent on the honest implementation of the norm of positive equality. Critical legal scholarship tips off that to the extent that the contemporary liberal order fails to deal with the struggle for positive equality, then, the legal order “sinks into desperate self-concern and denial of commitment”, as uttered by Unger. In this scenario, the contemporary liberal legal order “becomes conceited and denies its basic commitment as an instrument in balancing the conflicting or overlapping wants and interests of the different sectors of society.”40

2. Democratic Republicanism The democratic republicanism underscores the proper relationship that should exist between the legal order and society in general and defines the essential features of the social organization as well as the individual rights and entitlements that the government must protect come what may.41 The post-liberal society should not be only republicanized, that is to say established and organized for the purpose of deconstructing the liberal order but also democratized, that is to say eradication of social divisions and hierarchies and the 38

Johnson, C., Do you Sincerely Want to be a Radical? 36 Stanford Law Review, 359. Alexander, L. and Schwarschild, M., Liberalism, Neutrality and Equality of Welfare v. Equality of Resources, 16 Philosophical and Public Affairs, 85. 40 Pascual, Legal Philosophy by Pascual, 375 41 Unger, R.M., The Critical Legal Studies Movement, 96 Harvard Law Review, 570. 39

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return to the people of their right to rule through universal suffrage, genuine representative institutions, freedom of expression and the benefits of the print and electronic media to make such freedom possible and worthwhile.42 It can be inferred based on this discussion that the harmonious co-existence of the exercise of governmental powers and the people’s enjoyment of their basic rights and primary entitlements is possible. E. Transformative Content of Post-Liberal Order There is neither exact formula nor detailed blueprint of the structure of the postliberal polity. The general statement however, is not to repeat the errors of the past. Each society has its own distinct needs and social temper. Thus, the details of the post-liberal order will be dependent of such temper and needs. However, Roberto Unger points out two considerations that must be taken into account in the conceptualization of the transformed socio-legal order. These are: 1) the post-liberal socio-legal order must not fall hostage to any faction therein;43 and 2) the transformed socio-legal order must always be alert for opportunities to eliminate divisions and hierarchies in society.44 Furthermore, Roberto Unger proposes the decentralization of government, the reorganization of the market economy, and the reconstruction of the system of rights in order to avoid the first consideration abovementioned and to realize the second consideration. 1. Decentralization of Government The critical legal realists say that the legal ordering of the society is hampered by too much check and less balance and a lot more undue process of law in the execution 42 43 44

Pascual, Legal Philosophy by Pascual, 375 Unger, R. M., The Critical Legal Studies Movement, 96 Harvard Law Review, 593 Ibid., 588.

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of projects and activities especially in the area of exercise of executive power vis-à-vis use and practice of legislative power.45 Included in the resolutions of the critical legal realists is accountability. The three branches of government, regardless of number, should themselves be designed to be accountable to the people.46 The second one would be devolution or the dispersal of governmental powers, functions and resources down to the regional level of society.47 It would be the legislative and executive power authority that have to be devolved. It should provide mechanisms to empower the people for them to have active participation in governance. Examples would be initiative, plebiscite, recall and the like. However, there must be clear limitations in the devolution of authority in order to preserve the unity and peaceful existence of the state.48 The third element involves the effective and efficient decision-making. It involves the quick and clear resolutions of conflicting and overlapping interests among the branches of the government. The last element for the decentralization of government is concerned with the party in power. The critical legal realists envision that the party government shall be responsible, accountable where politics is not insulated from public scrutiny and where governmental positions and offices are not considered as personal entitlements or hereditaments.49 2. Reorganization of the Market Economy

45 46 47 48 49

Ibid., 500. Unger, R. M., The Critical Legal Studies Movement, 96 Harvard Law Review, 593. Idem. Pascual, Legal Philosophy by Pascual, 382 Ibid., 383

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Aside from the decentralization of government, the critical legal realists propose another transformative context, which is the reorganization of the market economy. In the dominant liberal paradigm, the mechanisms of monopolization and cartelization compose the market system.50 The market is controlled by the mega-business with interlocking satellite businesses and other forms of economic ventures. The small- and medium-scale business could hardly penetrate the market. Thus, the principle of equality of opportunity is hardly realized, resulting to a divided society. The reorganization of the market economy means the equitable sharing and distribution of surplus or pure profit on the basis of effort exerted in its production.51 Thus, the government has to create mechanisms or projects in order to extend support for the demand on the social capital. Two constraints for the realization of the reorganization of the market economy are seen by the critical legal realists. These are: 1) the possibility, not entirely remote, of the merger of domestic entrepreneurs into another hierarchy of market organization; and 2) the rapid population growth which puts a severe and continuing strain on the natural resources.52 3. Reconstruction of the System of Rights The critical legal realists state that the liberal concept of rights and obligations is based on the elitist conditions of avid property holding stabilized by power and wealth. These conditions have been nurtured by the dominant liberal paradigm as its zone of free will neither the government nor private individuals may invade.53

50

Idem. Idem. 52 Ibid., 384. 53 Unger, R. M. The Critical Legal Studies Movement, 96 Harvard Law Review, 597. Adler, M., W e Hold This Truth, 137, 139. MacMillan Press, New York. 51

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The dominant liberal paradigm views the concepts of “right” and “obligations” as its discretionary area of enjoyment. Thus, the rich becomes richer and the poor poorer.54 An example of an elitist economic liberalism according to the critical legal realists would be the 1987 Constitution wherein it has taken the reference to property to another dimension, from protection of dominion in property to protection of interest in value. In the post-liberal socio-legal order, new concepts of rights are introduced. These are: 1) the “resistance right”; 2) the “destabilization right”; 3) the “solidarity right”, and 4) the “market right.” The “resistance right” gives every individual “the fundamental sense of safety that enables him to accept a broadened practice of collective conflict without feeling his vital security endangered.”55 One is given authority to be able to repel interferences with his vital security in the social and economic aspects of life. The “destabilization right” is the counterpart of the equal protection clause enshrined in our constitution. The reason for the introduction of this principle is to avoid discriminatory legislation as it violates human dignity. Critical legal realists claim that the equal protection of law principle that we know is inadequate in so far as it could not disrupt government institutions that have contributed to social divisions instead of social justice and national unity. This right insures that institutions do not accumulate power that may insulate them from challenge and accountability. Under the dominant liberal paradigm with solicitude and tendency for avid property holding and protection, even the accountable branches of government may fall under the control of entrenched segments or institutions and thus, fail to protect and serve the public.56 Destabilization right is the institutional protection of an empowered democracy. This right corrects the collective disadvantage by prohibiting the state from becoming a 54 55 56

Pascual, 385 The Critical Legal Studies Movement, 96 Harvard Law Review, 600. Pascual, 387

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party to oppression and obliging the government to disrupt the unjust and cruel exercise of authority which had become effectively insulated from democratic conflict.57 “Solidarity right” gives every member of the society the right to exact the performance of the entire interests or responsibilities of a group in order to enjoy along with others the unified life of society.58 “Market right” establishes the limits of the claims which a person or group of persons may make against capital available in society. It enables every member of the society to question concentration of concessions of natural resources in one individual or group of individuals. It gives a person the “conditional and provisional claim to the divisible portions of the social capital established by the state.”59

F. Nature and Function of the Law Critical legal realism has unleashed an intense challenge to the dominant liberal paradigm. It has been claimed that critical legal realism is “the most extensive and influential critique of liberalism in recent memory.”60 For the critical legal realists, law is an instrument to redeem the people from social divisions and hierarchies. Critical legal realism is an advocacy of the law as a neutral and objective means of social control with emphasis on its liberating function. “Only when the law is neutral and maintains its neutrality in the inevitable conflict of claims, demands and expectations can everyone in society accept it as a means of social control and feel safe and secure from illegitimate divisions and hierarchies.”61 57

The Critical Legal Studies Movement, 96 Harvard Law Review, 612, 613-614. Ibid., 600. 59 Ibid., 600. 60 Levenson, S., Escaping Liberalism: Easier Said Than Done, 96 Harvard Law Review, 1466; Stick, J., Can Nihilism be Pragmatic?, Harvard Law Review, 322; Ackeman, B., Law in the Activist State, 92 Yale Law Journal, 1083. 61 Pascual, 389-390. 58

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ENDNOTES:

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i

Posner is the leading figure of the moderate Law and Society Movement. In his book entitled Economic Analysis of Law (2d edition), Posner studies the possibilities for the law of the principles of economics and how to think like an economist about the legal rules. ii

The use of the terms “dominant liberal tradition” and “dominant liberal paradigm” by the Critical Legal Studies Movement does not refer to the familiar classification of persons and ideas as “liberals” or “conservatives.” iii

One of the leading defenders of the tradition of the dominant liberal paradigm. iv

Marx championed the eradication of the liberal bourgeois society and its substitution by the socialist society expressing the interests and aspirations of all the toiling classes. v

The process of internal reformulation and development is also known as the deviationist process due to deviation from the contemporary liberal legal order. vi

Dicta – The part of a judicial opinion which is merely a judge’s editorializing and does not directly address the specifics of the case at bar. These are judicial opinions expressed by the judges on points that do not necessarily arise in the case. vii

A judex dictum is an expression of an opinion on a matter argued by opposing counsels but not essential to the disposition of the case. viii

An obiter dictum is an expression of an opinion on a matter which has not been raised in the case.

ix

Ratio decidendi is the point in a case which determines the judgment or the principle which the case establishes.