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Jurisprudence Study Notes

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Jurisprudence Study:

3. Evaluate the claim that the law is deeply implicated in the unjust domination of some groups in society.
- Classical Liberalism Idea: Socialist Critique - classical liberal ideas were really just promoting the ideas of the merchant and commercial classes, industrialism and a shift towards a commercial based economy. Rise of Modern Liberalism - idea that the state should put everyone on an equal footing, provide the most opportunities for furthering individual wants and desires. Liberal rights help the strong more than the weak - Classical Liberalism furthered the agenda of the Borgeois. Are the strong given special rights that the weak and disadvantaged are not?
Is there inequality in the enforcement of rights in favour of the strong and powerful?
Is there a bias in favour of the strong and powerful in the choice of what fundamantal rights are: Key arguments that are made:

1. The rights are only good against the state and not private actors

2. The rights are civil and political rather than economic and social

3. The rights are negative rather than positive

4. The rights are individualistic Most rights are negative rights - government has to refrain from doing something. Doesn't help people that have nothing. Counter argument: there are some positive rights, right to employment - Nickel. Welfare idea of modern liberalism
Employment relations - oppression of the employees. Law reflects capitalist ideas, promotes and continues inequality. Economides/Michael Robertson Notes: Ideologies in society - dominant ideologies reflected in our laws. Relying on social benefits, not everyone separate landowners, have to live under the government, and thus their ideas. Distinction between public and private. The law is propagated by Parliament and the Executive - laws reflect the ideologies of the majority, oppress the minority, tool of power.

5. Evaluate the claim that law is indeterminate. Frug - Contract Law. The kind of angles that critical lawyers want to hone in on is that there is freedom of contract in the first place, people involved in bargaining are doing so in an equal way, equal footing. But are they really? Indeterminacy point. The way in which the argument in court could go either way, clearly judges come down on one side - how do you explain that? When you read the case the first time, it seems very logical, but if you go deep into the writing of these crits, you see that certain tricks are used where a judge may reason by assertion to reach a conclusion that doesn't actually follow from what has taken us to that point. One of the things that emerges from this kind of analysis is that it is clear that each and every one of us comes to reading law with a set of values and a set of ideas or criteria which we use to evaluate the material that we are reading. In law schools there is an aim of constructing a core consensus

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