Co to jest „krytyczne" prawo rodzinne
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Date
1989
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Wydział Prawa i Administracji UAM
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What is „critical" family law
Abstract
A growing segment of British legal literature, identified by the label Critical
Legal Studies UK might be explained as a delayed reflection of the „movement"
of that name originating in the United States.
The purpose of this article is to attempt an assessment of the value which
a „critical" approach might hold for English family law.
It is not easy to capture the essential thread of critical legal studies. „Critical"
legal writers would reject a view of law which saw legal decisions as formal
deductions from established premises, and systems of law as emanations of
systems of values which have inherent, objective validity. Instead, the „critical"
legal conclusion — scarcely a revelation — is that the law is „inextricably mixed
in the totality of social relations and institutions".
As far as family law is concerned, „critical" legal writers would claim that
„at the root of a critical theory is the, public/private dichotomy". The author
questions the usefulness of that dichotomy as a tool of contemporary legal analyses.
Then, he tries to prove that one feature of „critical" legal theory not shared
by "non-critical (liberal)" theory is that the critical writer inserts an explicit
ideological stance into his or her legal analysis. If this is so — claims the author —
the "critical" approach reverts to a political programme, and is jurisprudentially
irrelevant. If the "critical" writer is less concerned about exploring the doctrinal
and empirical problems of achieving coherence within the multitude of legal and
institutional mechanisms and is surer of the answers to the value-conflicts than
the "non-critical" scholar, i.e. if his/her "currency is commitment rather than
truth", one may truly ask whether the movement has appropriated to itself theepithet "critical" under false pretences.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 51, 1989, z. 1, s. 139-155.