Critical Legal Theory: Tradition and a New Synthesis
Author: Pisker, Barbara , bpisker@vup.hr
Department: Faculty of Law & Faculty of Humanities and Social Sciences (Sociology)
University: University of Zagreb, Croatia
Supervisor: Josip Kregar
Year of completion: 2011
Language of dissertation: Croatian
Keywords:
Sociology of Law
, Critical Legal Theory
, Reflexive Law
Areas of Research:
Law
, Theory
, Comparative Sociology
Abstract
The function of legal norms does not imply just and only the regulation of social relationships but above all legalization, systematization and sanctions of the existing autonomously developed state of social conditions. Often this relationship is set right to contrary: legal norms are posted with an intention to create social relationships; it makes them ideological, not technical in legal sense. In such a social system legislation and institutions, standards of liberal democracy „lend from developed countries“ are not effective neither efficient.
In an intention to overcome positivism and formalism of legal sciences in The Republic of Croatia through development and adaptation of legal system theoretical ground urges for a new scope of integral critical thinking. For this reason the main goal of the paper is to present tradition and a synthesis of Critical legal theory introducing development of legal thought in a historical and comparative reflection, highlighting theoretical perspectives and frames contributing supplementation and creation of integral and Critical legal theory.
Critical legal theory is based on the grounds of Marxist theory of law, methodologically bounded with the work of Frankfurt School theoreticians and follows up the ideas and ideals of American legal realists. Continuing and building up a critic of positivism and formalism, started by American legal theorists at the end of the 19th century exponents of Critical legal theory represent controversial thesis about indeterminacy of law, law is politics and critic of rights (according to which law is ideological and prejudiced, not neutral and independent).
The Review of theoretical ideas is presented through the analysis of the work of three completely differently undertoned theoretical views: R.M. Unger's theoretical optimist and utopist, D. Kennedy as an ironical satiric and pessimist, M. Horwitz historically oriented, moderate realist. In an attempt to level their contributions to the development of Critical legal theory, directing theoretical endeavors to constructive critical solutions it is suggested to approach the European critical thought, in the point where G. Taubner's ideas of reflexive law already are located. Reflexive law seeks a model of redefining procedures of democratic self-regulation in law equipping social institutions for being supportive of autonomous social procedures, while at the same time assuring a possibility of regulating complexity in contemporary globalized societies through law. In such a social system law is overtaking a completely new role in an organizational structure of autonomous social procedures: law is created with the goal in the participative modes of direct democracy giving back the voice to the people. Therefore the future goal of Critical legal theory is to create a platform for a reflexive conception of law to show a path for law in influencing and regulating present and future social changes for the ideals of democracy in a critic's eye are not fulfilled through more or less accurate portraits of social life beyond our self but a vision whose main goal is above all to change social life.
