Postmodern vs. Traditional Legal Theory

Dennis McCallum



 Traditional Legal TheoryCritical (postmodern) Legal Theory
The Rule of LawHaving 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 LawsLaws 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 way.
The Law and SocietyEveryone 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 feelings.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.