Chapter 27 V. Actual and Potential Impacts on Legislation and Judgment

From the above, we can conclude that there are three main legal philosophy movements in the United States today.All three are linked to certain political and economic modes of thought.The School of Law and Economics, which praises free enterprise and free markets, wishes to limit government activity primarily to protecting citizens from coercion and fraud.The school of critical legal studies raises many objections to the established social system, especially its legal part; many adherents of this school accept communal or socialist knowledge.The school of rights and principles fell in between the former two, accepting the main features of the existing social order but supporting economic reform laws designed to help the disadvantaged classes.It used to be a popular view that legal philosophy should be completely neutral about values, should avoid expressing opinions on trends of thought or questions of justice, and should confine itself to the analysis of concepts within the legal order However, it is interesting that the above views have not left the slightest trace in the three current movements.

In the final section of this essay, I will raise the question of whether the jurisprudential views described in this essay have had an impact on legal practice, especially on the work of legislatures and courts; Theory may make a somewhat hit and miss prediction of the potential impact on future developments in the law. At the beginning of this article, it was pointed out that there is a close relationship between the economic views of the law and economics school and certain legislative measures adopted during the Reagan presidency.For example, relinquishing control over airlines, leading to greater competition in ticket prices and services; reducing taxes to encourage private and corporate investment; and relaxing controls on certain areas, such as environmental issues, that were seen as increasing industrial activity A burden that is too great.These measures meant, at least in part, a return to the laissez-faire philosophy that formed the core of the school of law and economics.The same trend is evident in some of the United States Supreme Court's jurisprudence that strengthens freedom of contract and strengthens the protection of private property rights without government interference directed for public purposes.

This current trend is likely to continue unabated under the leadership of the new US administration.If there is a recession, this trend may stop or reverse, but in that case it is too early to make informed guesses about what the government will do. The political tenor of the critical legal studies movement is now accepted by relatively few, and is not likely to be widely heard in the foreseeable future.With regard to the critiques of law and legal institutions made by the critical legal studies movement, many lawyers and legal scholars have only accepted that its emphasis on the uncertainty of litigation is justified; Various precedents have led to different outcomes.Many in the legal profession, however, would argue that criticism of the picture of uncertainty painted by legal research is grossly exaggerated.They will point out that many problems, both in the Commonwealth and in the states, find more or less the same solutions that predict trial outcomes.

The critical legal studies school also argues that court decisions are shaped by political ideology and economic ideas rather than by specialized legal thinking.If American lawyers were polled on this question, most of them would admit that, in rulings on the constitutionality of statutes, as in areas such as abortion, the protection of privacy, and the scope of public oversight of economic activity, , subjective ideological preferences are unavoidable.On the other hand, neither staunch supporters of critical legal studies would deny that the judicial tradition has given the law considerable stability in its more technical and politically neutral spheres.

The actual and potential impact of middle schools on legal development is more difficult to estimate.John Rawls' view that one fundamental liberty can only be restricted for the sake of another fundamental liberty cannot be said to be widely accepted.Neither the legislature nor the courts wish to relinquish their prerogative to bind themselves in order to promote other values ​​of social order.Controlling the terminal disease of AIDS may require some restrictions on the right to privacy, which Rawls considers a fundamental freedom.In times of international crisis or when national security demands arise, freedom of expression may be restricted.The right to occupy movable or immovable property may be subject to certain restrictions in order to protect the environment.

According to the "difference principle" advocated by Rawls, social and economic inequality is justified only if it benefits the socially inferior.This principle does not form part of the dominant political and economic philosophy in the United States today.It is hard to say whether it will be widely accepted in the future, especially given that it excludes individual talent as a guiding principle for a theory of distributive justice.Suppose the government accords a famous artist or writer high honor, thus creating a social inequality between him and other artists or writers, is it possible to justify this by claiming that such action benefits the least advantaged? What is the rightness of this behavior?

In addition, there is a more general reason for doubting whether Rawls' difference principle will ever be accepted as a major theoretical basis for distributive justice. Rely on a unique principle to solve it. Dworkin's views on equality, especially his call for equality of resources, have not yet been fully formulated and accounted for, so it is impossible to predict their future fate.On the other hand, his theory of judicial procedure has attracted considerable attention in the legal circle and may have echoes in the future.There is a tendency to try to overcome the subjectivism inherent in American legal realism and the approach to critical legal studies.Since each legal system has imperfect characteristics, to achieve the above purpose, it is necessary to expand the non-subjective decision-making sources that judges can rely on when handling litigation cases.Dworkin does this by accepting two general principles of fairness and justice.However, these two principles have not yet been incorporated into positive law as the legal source of trial. Positivism in the strict sense limits the source of law to constitutional provisions, statutes and judicial precedents, and Dworkin’s departure from positivism is likely to Be the "wave of the future" (see Chapter 16 of Bodenheimer's Jurisprudence on this).On the other hand, Dworkin's "rights thesis" is unlikely to find favor with the courts, since in many decisions judicial assessments of the scope of individual rights are made in terms of public policy and the general goals of the community.In an era when our considerations of the public welfare, public health, and ecology are increasingly important, it is impossible for American courts to abdicate the power to take these public interest considerations into account in contentious cases.