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Gabel Harris Notes

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This is an extract of our Gabel Harris document, which we sell as part of our Jurisprudence Notes collection written by the top tier of University Of Otago students.

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Gabel and Harris: CLS and the Power of Law: Presentation of an optimistic approach to radical law. They reject the orthodox Marxist view that the law is simply a "tool of the ruling class", and the liberallegalist view that powerless groups in society can gradually improve their position by getting more rights. Instead they argue that the legal system is an important public arena through which the state attempts (through ideology) to legitimise a social order that most people find alienating and inhumane. Their objective is to show the way that the legal system works at many different levels to shape popular consciousness toward accepting the political legitimacy of the status quo, and to outline ways that lawyers can effectively resist these efforts in building a movement for fundamental social change. The political and public character of the legal arena gives lawyers an important opportunity to reshape the way that people understand the existing social order and their place within it. The work of CLS is closely allied with the neoMarxist social theory that is gaining increased influence since the rise of the New Left in the 1960s. A central feature of this strand of radical thought has been a shift of focus away from the tendency of classical Marxism to explain all aspects of social life as resulting from "underlying" economic factors, such as ownership and control of the means of production - instead, they place much greater importance on the role of social alienation. The source of social alienation in capitalist societies is to be found in the prevalence of hierarchy as the dominant form of social organisation - people are unable to achieve genuine power and freedom. People come to experience one another as powerless and passive in relation to the hierarchies within which they live and work, and because this powerlessness is manifested through the social order, individuals internalise it - it becomes a selfgenerating source of social repression. The role of the legal system is to create a political culture that can persuade people to accept the legitimacy and the inevitability of the existing hierarchical arrangement. The legal system accomplishes this in two ways:

1. All forms of serious social conflict are channeled into public settings heavily laden with ritual and authoritarian symbolism. It signifies to people that those in power deserve to be there by virtue of their 'majesty' and vast learning. When disseminated throughout the culture, these symbols help to generate a belief in the authority of law, and authority in general.

2. Legal reasoning itself - an ideological form of thought whose legitimising characteristic is that it presupposes the existence of and the legitimacy of existing hierarchical institutions. The legal system can assert that the era of freedom and equality has already arrived, and that the status quo is the consequence of genuine popular choice. A PowerOriented Approach to Law Practice: The great weakness of a rightsoriented legal practice is that it does not address itself to a central precondition for building a sustained political movement. An excessive preoccupation with "rights consciousness" tends in the long run to reinforce alienation and powerlessness, because the appeal to rights inherently affirms that the source of social power resides in the state rather than in people themselves - they allow the state to define the terms of the struggle. A "power" rather than a rights approach to law practice should be guided by three general principles:

1. A genuine equality and mutual respect in lawyerclient relations

2. Lawyerly conduct that demystifies the symbolic authority of the state

3. Attempt to reshape the way legal conflicts are represented in the law, revealing the limiting

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