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Finnis Vs Unger Notes

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Finnis vs Unger: Contract Law, CLS. Roberto Unger: The Critical Legal Studies Movement: Critical Legal studies placed within the tradition of leftist tendencies in modern legal thought: Two concerns:

1. Critique of formalism and objectivism. What he means by formalism is "a commitment to and therefore a belief in the possibility of a method of legal justification that can be clearly contrasted to open ended disputes". Impersonal purposes, policies, and principles as an indespensible component of legal reasoning. By objectivism he means the belief that they authoritative legal materials embody and sustain a defensible scheme of human association. "The laws are not merely the outcome of contingent power struggles or of practical pressures lacking in rightful authority".

2. Purely instrumental use of legal practice and legal doctrine to advance leftist aims. A Critique of Objectivism: Key idea is to reinterpret the situation of contemporary law and legal doctrine as the evermore advanced dissolution of the project of the classical, nineteenth century jurists conceived in a certain way. They were engaged in a search for the built in legal structure of democracy and the market. In choosing the particular social organisation that the people did, they chose the legally defined institutional structure that went along with it. This structure provided legal science with its topic and generated the purposes, policies and principles to which legal argument might legitimately appeal. Two ideas played a central role in this enterprise:

1. Distinction between the foundational politics (responsible for choosing the social type) and the ordinary politics (ordinary legislation)

2. Existence of an inherent and distinct legal structure of each type of social organisation. "The general theory of contract and property law provided the core domain for the objectivist attempt to disclose the builtin legal content of the market" "As the property concept was generalised and decorporealised, it faded into the generic conception of right, which in turn proved to be systematically ambiguous, if not entirely indeterminate. Contract, the dynamic counterpart to property, could do no better. The generalisation of contract theory revealed, alongside the dominant principles of freedom to choose the partner and the terms, the counterprinciples: that freedom to contract would not be allowed to undermine the communal aspects of social life and that grossly unfair bargains would not be enforced." The Critique of Formalism:Every branch of doctrine must rely tacitly if not explicitly upon some picture of the forms of human association that are right and realistic in the areas of social life with which it deals. "To determine which part of the established opinion about the meaning and applicability of legal rules you should reject, you need a background prescriptive theory of the relevant area of social practice... This is where the trouble arises. No matter what the content of the background theory, it is, if taken seriously... unlikely to prove compatible with a broad range of the received understandings." "The many conflicts of interests and vision that law making involves... would have to be the vehicle of an immanent moral rationality whose message could be articulated by a single cohesive theory." The Constructive Outcome of the Critique of Formalism: Deviationist Doctrine: Either resign yourself to some established version of social order, or face the war against it all. When asked whether deviationist doctrine can be used by the judges, we answer as follows. We are neither servants of the state nor their technical assistants. Most of what courts actually do -

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