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Jurisprudence Lecture Notes 1 14
Jurisprudence Lecture Notes 1 14
Jurisprudence
JURISPRUDENCE
Jurisprudence
Table of content
Sociology
American Realism
Scandinavian Realism
Post modernism
Feminism
Marxism
Theory of adjudication
Tutorial
Jurisprudence
Sociology (EVERYTHING)
Introduction
• The first quarter of the 20th century, witnessed rapid social
changes in United States and law seen as form of social control.
It took into account social facts when law was made,
interpreted and applied
• The term sociology was derived from the term society , which
refers to people and the community
• Factors contributing to the rising concern and interest on law
in relation to society:
• Rapid increase in population and inequalities caused by the
industrial revolution
• Creation of new rights for specific sections of the
community
• Changing tempo and patterns of modern legal practice
• Pressure for legal reform, greater access to justice and for
the delegalisation (revoking the authority) of the judicial
process
• Sociological jurists tend to be skeptical of the rules presented
in the textbooks and are concerned to see what really happens,
the law in action
• Sociological jurists tend to support relativism which means the
doctrine that knowledge, truth and morality exist in relation to
culture, society or historical context and are not absolute. They
reject the belief that of naturalism that an ultimate theory of
values can be found. They see reality as socially constructed
with no natural guide to the solution of many conflicts
• Sociological jurists believe also in the importance of harnessing
the techniques of the social sciences, as well as the knowledge
culled from sociological research, towards the erection of a
more effective science of law
Jurisprudence
Social Engineering
▪ The aim of social engineering is to build as efficient a structure of
society as possible which requires the satisfaction of the
maximum wants with the minimum of friction and waste
▪ Pound likened the task of the lawyer to that of an engineer.
o During Pound s time, America was passing through a
period of major changes, and yet lawyers were in the
habit of thinking static concepts; taking the law as it is.
o Thus, social engineering was to enable the lawyer to
think in terms of changing or moulding the law.
o Pound suggested that lawyers and judges should
abandon their rigid attitude and adapt law to
accommodate changes in order to help achieve the aim of
social engineering
▪ It involves a balancing of competing interests, referred to as
claims, wants or desires, about which the law must do something
if organized societies are to endure
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Classification of interests
▪ Individual interests: Claims, demands or desires involved in and
looked at from the standpoint of the individual life
o Personality: Interests in the physical person, freedom of
will, honour and reputation, privacy and belief and
opinion
o Domestic relations: Interests of parents, children,
husband and wives
o Interest of substance: Interests of property, freedom of
industry and contract, promised advantages,
advantageous relations with others, freedom of
association and continuity of employment
▪ Public interests: Claims, demands or desires asserted by
individuals involved in or looked at from the standpoint of
political life
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Jural Postulates
• Where the conflict of interests leads to a request to
recognize a new interest, reference must be made to the
jural postulates which reflect the society s values
• Jural postulates are the presupposition of legal reasoning.
They are the standards of a civilized society which men are
entitled to assume and what must be in the background of
any judgment ordered in court
• To be able to walk around safely without any intentional
aggression
• Beneficial control over property
• Good faith in dealings
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Criticisms
• Although Pound s theory demands a balancing of conflicting
interests, it fails to specify or provide a guideline on which
interests are to prevail. In some instances, this has caused a
great loss to certain individuals
• Beatrice Fernandez v Sistem Penerbangan Malaysia: The
court ruled that a contractual term that prohibited the
appellant from being pregnant was not discriminatory as to
say otherwise would open a floodgate of countless pregnant
stewardess. The court protected the interests of Malaysia
Airlines in profiting form the working women as compared
to their interest in having a family
• Pound s theory appears to place emphasis on the majority
interest to such an extent that under certain circumstances,
the personal freedom and material welfare of the individual is
being ignored
• Datuk Seri Anwar Ibrahim v PP: The court admitted
unlawfully obtained evidence of a towel, water bottle and
glasses that the accused used in prison to extract his DNA in
order to match it with that found in the complainant.
Despite the fact that the prejudicial effect of the evidence
was high, as it was obtained without his knowledge and
consent, the court admitted the evidence, having due regard
to the benefit of the society at large to discover the truth
• Pound s theory shifts the focus of legal order from legislation to
court judgments
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Brian Tamanaha
• Tamanaha talks about socio legal studies. This is an area of
law that does not have any theories as such, the law is
treated as separate entity and legal system is treated as
separate entity. The reforms that were suggested under
realistic socio legal studies is looking at behavior of
instituaiton rather than understand legal studies. They look
at behavior of institution
• He came into the scene with realistic socio legal theory.
Came about late 1990s
• He identified and developed the foundations for social
scientific study of law. he draws on philosophical
pragmatism to establish an epistemological foundation
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• How then should u know which law is better so you use this
criteria as stated above.
• If you say there is connection of law and all society you must
be able to investigate and prove it.
• Brian uses similar method as Pound that is that he uses
pragmatic approach
• He focuses on behaviouralism and interpretavism
• He does not want to define the characteristics of law
• What law is and what law is not cannot be captured in one
single definition
• Law can have certain elements but it cannot be defined. Law
is whatever you label it as.
• It is a cultural construct and there is no central case to
define law
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• Contributions
• Juri metrics
• Judicial behaviouralism
• Brandeis Brief method
• Criticisms
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Fact skeptics
• Fact skeptics (led by Frank) abandoned all attempts to see
rule-certainty and pointed to the uncertainty of establishing
the facts in trial courts
o He urged that too much attention was devoted to the
processes in the appellate courts and had thus neglected
the lower courts
o Knowledge of what goes on in the lower courts is needed
in order to know what law means to persons in the
lower income brackets
▪ Rule skeptics seek means for making accurate
guesses, not about decisions of trial courts, but
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Criticisms
• Realism is a mere technology; mere description of what is
transpiring in courts and there is no suggestion of what ought
to be
• The law should be concerned with shaping or reflecting social
change, not with shaping the society
• Realists glorify the judiciary (their stance revolves around
judiciary) to such an extent that it appears as though the
judicial function is at the heart of the law
o They failed to consider that much of what occurs in society
are not brought before the court, thus proving that the law
does not revolve around the judicial function
• Realists have not improved jurisprudential thought but have
only created more arenas to think about
• Realists have completely overlooked the importance of rules
and legal principles and treated law as an assemblage of
unconnected court decisions
• Their perception of law rests upon the subjective fantasies and
life experience of the judge who is deciding the case or dispute
o They overestimate the role of judges in the formulation of
laws. Judges do contribute to law-making to a certain extent
but it cannot be forgotten that their main function is to
interpret the law
• Realists undermine the authority of precedents and argue that
case law is often made in haste without regard to wider
implications
o Courts have to rely on the evidence and arguments
presented to them in court and do not have access to wider
evidence such statistical data, economic forecasts, public
opinion, survey etc
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Defences
• The attack against the doctrine of stare decisis, which ties the
hands of the judges, has helped improve the system of the
lower courts
• The movement have helped judges become more honest and
informed
o Judges would look into non-legal factors when making a
decision and interpret the words of the statute by giving
thought to the effect of their decision on the society at that
point of time
Juri Metrics
o Judicial behaviouralism is a study of looking at judicial
behavior
o It is a study of legal processes by scientific means
particularly through analysis of statistics
o Juri metrics is the scientific investigation of legal problem
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Judicial behavouralism
1. Behaviouralist is an attempt to improve the predictability of
judicial decision making
2. Behavouralist attempt to identify and isolate the extra legal
factors that influence a court s decision by applying method
used in other social sciences
3. For example they undertake the analysis of psychology of small
group of appellate judge. However behaviouralist use a variety
of empirical method to ascertain attitude of judges by looking
at their background, their public statement outside court room,
their judicial opinion and by asking them in interviews or
questionnaires
4. They believe judges are nothing more than policy makers and
precedent or legal rules have little relation to the discovery of
the true uniformity in judicial decision making
• Behaviouralist undertake comprehensive analysis of
individual attitude toward public policy, each other and all
participants in decision making process. Once attitude of
judges are established along these lines it is possible to
develop predictive model because judges are expected to
behave consistently with their beliefs and decision of the
court is a linear function of the decision of individual
member. The only difference is because of life journey
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Exam tips:
• Methodology: priori reasoning and epistemological foundation
• Ross (most important): Directives and norm (relationship),
meaning of binding
• Olivercrona: Psychological pressure, significance of formalities
• Axel Hagerstorm (understand concept)
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Alf Ross
• He admits the normative character of law and distinguished
between laws, which are normative and laws in books which
are descriptive
• Law is a system of normative rules concerning social facts
• A norm is a directive which stands in relation of
correspondence to social facts
o To say that a norm exists means that a certain social fact
exists, which is thus followed by people who feel bound
to do so
o Its principal feature is that they are directives addressed
to courts (those is authority; organs of the state),
whether they derive from past decisions or from
legislation
▪ He suggests that there is no need to describe two
sets of directives; one to the population at large
and the other to the courts, as the former can be
understood from the latter
• To know these secondary rules, is to know
everything about the existence and content
of law
• Eg: If a person is aware that the courts are
directed by the law to imprison whoever is
guilty of murder, since imprisonment is a
reaction of disapproval, and a sanction such
person would know that he is forbidden
from committing murder. Thus, a statutory
prohibition against murder is implied in the
rule directing the court and other authorities
to deal with such cases in the required
manner
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Criticisms
• The approach taken by the Scandinavian realists is a formal
analysis of observing the law; it is not tainted by values
• The approach is not limited to looking at paper rules or law
in books like the American realists
o They consider what occurs in courts and examines how
it affects the minds of individual psychologically
(strength of their approach)
o However, the theories of some of its realists are
considered to be too extreme
• According to them, law is a fact of social conditions
o Although they did not deny the validity of law, they
rejected the idea that law has a binding force
▪ The binding force has no place in the world of time
and space, but must be located in another realm
▪ To believe the law has a binding force is to give up
any attempt of indulging in metaphysics
• They agreed that law is indeed indispensable but rejected legal
ideologies
o Law is not imposed by a higher being nor is it a system of
commands by a sovereign
• Their approach has further expanded sociological
jurisprudence as it insisted that law must be based on social
facts
o The Scandinavian realists have placed the welfare of the
society at the core of their concerns
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Differences
Similarities
Both schools of realism reject all absolute values such as justice and
both schools have no common voice. The jurists within each
movement do not speak with one voice. Both are realists in the sense
that they want to get behind the curtains they believe concealed the
actualities of law.
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Criticisms
• It is meaningless. There is no empirical knowledge or value
to it. The theories they present, there is no evidence to back
them up. It lacks content.
• The many emphasis of post modernism tends to contradict
one another
• They don't recognize reality. What they want is personal
reality
• Their theory is relative. It denies any ultimate principle and
it lacks being scientific and post modernism leaves us
without absolute foundations to determine absolute truth
about how we should think and live. Its freedom of
imagination to do as we like.
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Exam tips:
• All 4 schools
• Common emphasis, common objectives (empowering
women, improve legal rights and status of women)
• See how 4 schools in the way they contribute to
advancement of legal rights (liberalism: no sexual
discrimination, radical: promote against violence,
pornography, Cultural: maternity leave,
postmodernism: minority groups. Find out how all 4
schools have affects legal education, legal rules,
employment, equality
Introduction
• Feminist jurisprudence is a philosophy of law based on the
political economic and social equality of sexes
o It seeks to analyse and redress traditional legal theory
and practice
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Criticisms
▪ Liberal feminists are individualistic and self-centered.
o Its individualistic assumption makes it difficult to see the
ways in which underlying social structures and values
disadvantage women. These critics believe that institutional
changes like the introduction of women s suffrage right to
vote) are insufficient to emancipate women.
o Liberal feminism focus on the individual and in doing so,
discredits the importance of the community
▪ Even if there are changes in the judicial system that are favourable
to equal rights of women and women are no longer dependent on
men, they would still be living in a largely patriarchal society.
o Only changes in societal mind-set can effect change in the
status of women and no amount of legislature can change
that
▪ Equality arguments cannot succeed in obtaining justice for
women.
o Where the law has defined women as being different from
men, legal subjects cannot be constructed as gender neutral.
o To argue otherwise would be to ask for the law to be blind
and disregard the concept of man and woman.
o Liberal feminists have no regard for differences between
sexes
▪ Liberal feminism reflects only the values of middle-class white
woman and has largely ignored women of different races, cultural
or classes
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RADICAL FEMINISM
▪ This model focuses on differences between men and women and
supports affirmative measures to challenge inequalities
▪ Radical feminists narrow their focus to the more biological aspect
of women
▪ They reject liberal feminism and view the legal system as a
mechanism for the continuance of male dominance
▪ Catherine Mackinnon is the leading feminist of this model
▪ McKinnon argues that women s sexuality is socially constructed
by male dominance and the sexual domination of women by men
is a primary source of the general social subordination of women.
o Women have been socially conditioned to want and wish
what men expect from them.
o Thus, it is through sexuality that men dominate women
▪ Radical feminists believe sexism is so deeply rooted in society that
the only cure is to eliminate the concept of gender completely.
o They claim that the entire traditional family system is sexist,
where men are expected to work while women are expected
to care for children and clean the house.
o This traditional dichotomy maintains men as economically
in power over women and should be rejected.
o They questioned as to why women must adopt certain roles
based on their biology, just as why men adopt certain other
roles based on gender.
o They suggest changes such as finding technology that will
allow babies to be grown outside of a woman s body to
promote equality between men and women.
▪ This will allow women to avoid missing work for
maternity leave which they argue is one of the reasons
why women are not promoted as quickly as men.
▪ McKinnon asserts that the very nature of law and legal method is
male and thus existing law is totally inadequate.
o The source of women s exploitation is men themselves.
o Oppression of women is a result of the laws regulated by
men.
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Criticisms
▪ Radical feminists are oppositional in nature, thus they suffer from
problems in confrontation, making it hard to see what they want
from men
▪ Radical feminists over-emphasize factors that separate women
from men, such as a woman s biological aspect
▪ It is not practical to abolish the concept of gender completely as
by nature, women and men are different and have different needs
▪ Despite rejecting the liberal feminism model, they have pointed
out that the law itself is of male dominance.
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▪ By virtue of the differences, they seek for the law to address such
differences in men and women, even in regards to trivial things.
o Cultural difference feminists accept women for being
women.
o They seek for the society to value feminine quality.
o Women have different needs which require different legal
remedies, thus the law must recognize differences that are
relevant to women s lives, status and possibilities.
o For example, they argue that special treatment should be
accorded to women in cases such as pregnancy as it is
different from general sickness or disability. If sufficient
maternity leave is not given, this may cause women to lose
jobs
▪ Noorfadilla Saikin v Chayed Basirun: Such
biological function should not be a reason for women
to lose their jobs because the law must recognize this
aspect of a woman
▪ Section 37 of the Malaysian Employment Act
recognizes women s right to be paid maternity leave
of no less than 60 days.
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Criticisms
▪ Cultural difference feminists undermine the capabilities of women
to go beyond what they are capable of
▪ Their approach causes women to be limited to certain type of
attitudes and characters.
o Women who do not fulfill the character may seem unnatural
or underdeveloped.
o It is also contradicting in a sense that even if a woman
fulfills all the feminine qualities, she will be considered as a
mother and value but at the same time, she might be
devalued by society because the only role she plays is that of
a mother
POST-MODERN FEMINISM
▪ Post-modern feminists claim that there is no such thing as
women s universal right
▪ Each person is different and each individual must be considered in
accordance with her own needs and aspirations
▪ The quests of other groups are only reflective of Western-
Caucasian women.
o The groups cannot be grouped together and consider their
approach universalistic
▪ They object to the idea that there can be any universal women s
voice and have criticized feminists for implicitly basing their work
on the experiences of white, middle class, heterosexual women
▪ They claim that women s subordination has no single cause or
single solution
▪ They seek to explore the ways in which race, class, sexual
orientation and other aspects of subordination interact with
gender and to uncover the implicit, detrimental assumptions that
have often been employed in the different feminists models
▪ In recognizing this approach, the Convention on Elimination of All
Forms of Discrimination against Women (CEDAW) allows each
State party to make reservations suited to women within the
country.
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Criticisms
▪ Post-modern feminists do not offer a specific solution on clear
path to action
▪ The model is very anti-essentialist as it holds no belief in an
essence of feminism, such as sex or gender as propounded by the
other models.
o This causes the model to run the risk of weakening the basis
of any politics of action based on the differences between
men and women
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Programme of action
Where the four different models of feminism have failed to reach a
consensus on a particular aim for achieving equality and dignity of
women, programmes of action are thus required in order to adapt
the approaches towards one goal
1. Prevention and raising awareness:
• Prevention initiatives are grouped into two areas of focus:
o Educate to change attitudes and behaviours and to
promote respectful, non-violent relationships
o Engage organization and communities to promote
gender equity and stop violence.
▪ Actions to address the underlying causes of
violence against women and children including
unequal power relations, adherence to rigid
gender stereotypes and broader cultures of
violence
• Article 5 of CEDAW enjoines State Parties to take all
appropriate measures to modify social and cultural patterns
of conduct of men and women with a view to achieving the
elimination of prejudices and custom and other practies
based on the idea of inferiority or superiority of either sexes
or on stereotyped roles for men and women
• Existing organization in Malaysia are consistently
advocating for women s rights:
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2. Welfare equality:
• Women, despite their ability to bear a child, should be
accorded equal opportunities of employment and wages
• Gabrielle Defrenne II: It is the purpose of the law to ensure
equality between all persons. Therefore, a woman should enjoy
the same rate of wages and entitled to the same benefits and
pension plans that men of equal qualification are entitled to
• Unlike in Beatrice Fernandez v Sistem Penerbangan Malaysia,
where the court upheld the validity of the contractual term that
prohibited the appellant from being pregnant whilst employed
as a stewardess, women should not be prohibited from
engaging in a certain field of work due to their biological
nature
3. Fundamental freedom
• To ensure that there were no more discriminatory laws or
practices against women both in public and private sectors as
well as in society at large in 2001, after submissions from the
Ministry of Women, Family and Community Development
(MWFCD), SUHAKAM, Women NGOS, the government decided
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4. Legal recognition
• In the past, due to high levels of prejudice, judges refused to
regard women as being covered by the word person in a
statute
o Wilson v Town Clerk: A group of women whose name
were struck off the register argued that the revising
register was not empowered to do so. The court held that
removing the name of a woman from the voter roll was
equal to removing the name of dog of a horse and since
women were not persons within the meaning of the
statute, they had no locus standi to bring the case
• Women have since been accorded the legal recognition that
they rightfully deserve:
o Section of Married Women Act: Recognizes women s
right to sue and be sued as though she is an unmarried
woman.
▪ Women are no longer considered as a subordinate
chattel of her husband
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Marxism
Exam tips:
• Class conflict, class antagonism
• Revolution of proletariats
• Withering away of the law and state
• Superstructure
• The theory of Karl Marx. He wrote a book on ideal
society. He is a Russian and he lives during the time of
Russian kings. Working class hated them. If you are very
rich you can own land. Other people are like slaves.
• Marx’s work appeal to working class. He talks a lot
about equality, the fact that land owners are not the
ones who work for it. on paper, it is very good. His
premise is that everything should be divided equally.
• Long after he died, starlin picked up this idea. After he
died, they picked up his work. The Russians started
communism, and then followed by chinese. The version
of communisms are different.
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Karl Marx
The interpretation of law as part of an economic interpretation of
social evolution is a by-product of the social and political theories of
Marx and Engels, which have since been put into practice by the
Soviet Union and other countries
▪ Marx believed that social phenomena were governed by a
universal principle, namely the economic principle
▪ He was of the view that material and economic forces were the
determinant factors of development
▪ People are not influenced by the state but by material conditions
▪ Economic factors greatly influence legal and political conditions
▪ He adopted an approach referred to as historical materialism
▪ The approach looks for the causes of developments and changes
in human history in economic, technological and material
interests among social classes
▪ The economic system was considered as the base , which is
reflected by and influenced the superstructure which
encompasses the law, the state, arts, literature, morality, religion
and all other aspects of humanity s social consciousness
▪ In the context of the class struggle, the proletariat is the base
while the bourgeoisie is the superstructure
▪ The bourgeoisie will enact laws that are favourable towards their
own interests
▪ Law, politics and religion are nothing but opiates (drugs) to
prevent the proletariat rising above the class struggle
▪ Marx visualized history as unfolding according to the recurrent
conflict between a thesis and an anti-thesis
▪ Thesis -> Anti-thesis (where people are against an idea) ->
Synthesis (solution to conflicting ideas (recurring cycle)
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• Doctrine of the identity of law and state: The state came into
existence at the emergence of unequal distribution of
commodities and societal division between classes. Law was
one of the means used by the capitalist minority to preserve
and increase its power, while those who had property sought
to protect it from those who did not
o Thus, the law and state in a capitalist society formed a
tool of compulsion used by the minority to oppress and
exploit the working class
o Even in the proletarian dictatorship, the law and state
remains as instruments of compulsion and domination
o The state, thus reflects an essentially unequal condition
of affairs
• Doctrine of the withering away of law and state: When the
communist or classless society emerges, there will no longer be
any domination or inequality
o The instruments of domination (la and state) will wither
away and be replaced by an administration of things a
form of regulation of conduct
▪ No special machinery will be required to deal with
criminality and wrongdoing
o This follows from the thesis that law is but the reflection
of an oppressive economic system. Thus, once
oppression is removed, there will be an economic system
without law
• Once revolution takes place, a new group will seize power from
the state and they will transform the state whereby everything
you use will be state property. Everything you produce will
belong to the state. There will be no more exploitation of the
classes. The state will truly be representatives of society as a
whole. All method and means of production will be taken over
by the state. The state owns everything. The state in that sense
would wither away, the state would no longer be independent.
Once the state is in control of the means and method of
production, there is no need for states to interfere in a social
relations between men. From there the state becomes
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Criticisms
▪ Law as part of the superstructure is said to reflect the economic
base of the society and the main ideology in Marxism that the law
is used as an instrument of domination to oppress the working
class
▪ However, there exist laws which contradict the ideology and do no
pose as a form of oppression against the working class
▪ Eg: Law on the sale of goods, employment laws protecting
employees at their place of work
▪ There also exist laws which are seen as too remote from the
supposed class oppression. Where the ruling class is determined
to maintain the status quo, laws which help preserve social order
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Influence on Revolutionaries
• Marx s writings had a profound impact on Vladimir Lenin and
Leon Trotsky, who would in turn promote communist ideas in
Russia through publication of a Marxist periodical called
Iskra The Spakr
• Lenin became the most influential figure in early Russian
communism. After the Russian Revolution, successfully depose
the tsar s regime, Lenin s bolshevik branch of communism
rose to power and quickly assimilated or deposed other
socialist groups
o Lenin modeled his goals after Marx s but on a smaller
scale
o Marx believed that the communist revolution would take
on an international scale
o Lenin realized that he lacked the resources to make that
happen and contented with himself with seeing
communism succeed in Russia
o Lenin firmly believed Marx s idea that society must go
through a period of dictatorship of the proletariat before
the true communism could be achieved
Trotsky and Stalin
• After Lenin died in 1924 there was a brief of power struggle
between two of his chief lieutenants, Leon Trotsky and Josef
Stalin
• Trosky believed that the world needed to be in a state of
constant revolution for communism to survive
• Stalin believed that communism could succeed in a single
nation and that it could coexist with other forms of government
until other countries working class staged their own
revolutions
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• In the end, Stalin came into power and his view of Lennist-
Marxism prevailed in Soviet Russia. This included a small but
powerful ruling party which would enforce the Communist
party s policy brutally when deemed necessary
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Theory of Adjudication
Exam tips:
• Definition of judicial activism
• Judicial passivism or restraint
• Dworkin
• Malaysian judiciary promote judicial activism or
passivism
• Pros and cons
• Cases
• Tools that can be used to aid judicial activism: practice
directions, hansards, preamble, precedent, discretion,
judicial reasoning, statutory interpretation,
1. The theory of adjudication looks into how judges arrive at
a decision
2. Ronald Dworkin’s theory of law is that the nature of legal
argument lies in the best moral interpretation of existing
social practices. Thus, all judgment ought to rest upon the
reasoning that people are equal as human beings
irrespective of the circumstances in which they are born
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Dworkin’s Hercules:
1. A superhuman judge who is generously endowed with
superhuman skill, learning, patience and acumen
(intelligence)
2. Hercules is expected to be able to construct a scheme of
abstract and concrete principles providing a coherent
jurisdiction for all common law precedents, statutory
provisions and the constitution
3. His task is to construct the soundest theory of law and should
be able to justify his political and legal theory with a set of
principles
4. A sound theory must be fit and justify the settled law, fit with
past political decisions and be justifiable or morally sound
5. Hercules judgment about what the law is depends on what he
finds to be the best explanatory and justificatory theory of
settled law
6. Dworkin illustrate Hercules judgment through the analogy of a
chain novel:
• Each novelist writes his own chapter in the light of what has
passed in the earlier chapters and attempts to make it as best
as it can be
• A good novelist should try to make the chain novel look as
though it is the work of a single author
• Despite differing opinions, his interpretation must flow
through the text and capture most of the text of the novel
• If he cannot find an interpretation which fits and is justifiable,
he must abandon it
• He may have to accept interpretations he might have rejected
in the beginning and reconsider the views he might sought to
adopt in his theory
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Judicial activism
*** Check tun Zaki Azmi the star report
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Tutorial
Q1:Explain what is social engineering
The 8 programme of action
Add case
Q3. Criticisms
Use cases as examples, the case is to SHOW the criticisms
Mention criticisms first then only add cases
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Tutorial
1. Distinguish the differences of approach between the fact
skeptics and rule skeptics. In view of the recent emphasis on
judicial behaviorism, where predictability of judicial decisions
is stressed, do the differences matter any more?
Rule skeptics (you doubt rules are important)
1. Rule skeptics (represented by Holmes, John Gray, Llewellyn)
regard legal uncertainty as residing principally in the paper
rules of law (law in books) and seek to discover uniformities in
actual judicial behavior
2. They are skeptical of formal rules as the major deciding factor
in legal cases or the ability of general rules to provide the
solution to particular cases
3. Law in books were considered unreliable in guiding the
prediction of decisions, and that if the real rules were to be
discovered, only then can certainty and predictability be
achieved
4. Its aim was to show that simple reliance on rules was a fallacy
and that judges either consciously or unconsciously continue to
adhere to rule formalism
5. Judges are seen as unprepared to make clear the real reasons
for their decisions because it would be seen as a betrayal of the
ideal of the rule of law; the idea that the law is neutral and
objective, and not dependent upon any personal factors
6. Judges should not feel the need to hide behind precedents
(doctrine of stare decisis), but should instead make policy-
based decisions that are best for the society
7. They are committed to the idea that the aim of judicial
decision-making was to increase legal certainty or
predictability
• They considered it desirable that lawyers should be able to
predict that outcome of their clients case that have yet to
commence
8. rule skeptics believe that judges should make laws
9.
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-In a trial court, the law and the facts become intertwined and
are not distinguished from one another
-Juries, in reaching a verdict, may act on their emotional
responses to the lawyers and witnesses that they likened or
disliked and not on any legal rule
-These mistakes are then adopted and relied upon the
appellate courts
6. Rules are mere word formulae, and if they are to have any
meaning at all such meaning must be sought in the facts of real
to which the rules correspond
7. Frank denied that there is certainty in the judicial process and
if the facts skeptics were to be allowed, the elusiveness of facts
would make predictions wholly impossible
2. What are the main point enunciated by Karl Llewellyn that was
rationalize das the causes for American Realism?
3. The process by which judges arrive at their decisions on
questions of law is a topic of endless fascination and analysis
(fraderic reynold). Discuss with particular reference to the
writings of American realists.
4. Explain what is the Brandeis Brief Method. Discuss its
relevance to the Malaysian legal system
Judicial behavouralism
1. Behaviouralist is an attempt to improve the predictability of
judicial decision making
2. Behavouralist attempt to identify and isolate the extra legal
factors that influence a court s decision by applying method
used in other social sciences
3. For example they undertake the analysis of psychology of small
group of appellate judge. However behaviouralist use a variety
of empirical method to ascertain attitude of judges by looking
at their background, their public statement outside court room,
their judicial opinion and by asking them in interviews or
questionnaires
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4. They believe judges are nothing more than policy makers and
precedent or legal rules have little relation to the discovery of
the true uniformity in judicial decision making
5. Behaviouralist undertake comprehensive analysis of individual
attitude toward public policy, each other and all participants in
decision making process. Once attitude of judges are
established along these lines it is possible to develop predictive
model because judges are expected to behave consistently with
their beliefs and decision of the court is a linear function of the
decision of individual member. The only difference is because
of life journey
It does not matter to have both skeptics because both look at extra legal factors that influence the
judge in making decisions.
Both are very court centered approach
2. What are the main point enunciated by Karl Llewellyn that was
rationalize as the causes for American Realism
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