Postmodern vs. Traditional Legal Theory
From The Death of Truth
|Traditional Legal Theory
||Critical (postmodern) Legal Theory
|The rule of law
||Having society governed by law is better than having it governed by men
because law is created and modified by the will of the majority. It is also stable, fair
and not capricious compared to human rulers.
||Society is never governed by law, because people have to interpret
laws and enforce them. Since people can interpret laws any way they want, these, people,
not the laws, are the real rulers. Law is no more stable than its latest interpretation or
application. "Fairness" is a rhetorical tool used by majority culture to
describe their view of what should happen.
|The meaning of laws
||Laws can yield a stable and generally agreed upon meaning when interpreted
using grammatical historical hermeneutics and previous case law.
||Careful study demonstrates that those in power (judges and governments)
can always find a law that backs their interests, and other laws give them excuse for
their criminality. The poor can and minorities are excluded from interpreting law their
|The law and society
||Everyone is equal under the law. Judges should be impartial, administering
law to the rich and the poor according to what the law says, not according to the judges
||Laws are written by the powerful majority society to protect their
interests and to describe as "criminal" any action that threatens their property
or persons, especially when perpetrated by the poor. The poor and minorities will always
be arrested more, convicted more and imprisoned more, while crimes of the rich will go
unpunished much of the time. Judges should realize this and seek to even the score by
ruling for the poor and against the rich.
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