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Mapping Legal Theory Essay

952 words - 4 pages

The theory of artifactualism and its perspectives
Artifactualism is a theory of law that develops upon the insights of legal realism and positivism, natural law and criticizes these theories at the same time. In a similar sense with the natural law, the theory of artifactualism recognizes the impossibility of conceiving of law without any reference to the social values that are reflected in, as well as enforced by law. The theory however, suggests that nothing is separate or ‘outside there’ about law. The artifactualists join the legal positivists in their opinion that law is made by human and that more focus should be on the tangible aspects of law. The artifactualists however ...view middle of the document...

Artifactualists argue that realism excludes some common structural aspects of the judiciary such as the homogeneity of the realists in terms of gender, race and class. According to Artifactualism, law should be viewed as a product of a set of interrelated social forces.
Our legal system condenses and reflects these politically important forces in some particular ways and at the same time, aiding in entrenching and forcing them as norms in the society. Artifactualists consider laws to be situated socially. Besides being reactive, they are also constitutive of the wider society where they operate. Artifactualism emphasizes that law revolves around power and is not just a reflection of things relating to power in the society but it legitimizes and constitutes these power relations. Power can be viewed as relational because it is negotiable between various groups of people in the society. According to artifactualism, law is not just considered as an instrument belonging to power elites in the modern societies, although supports and reflects their interests to a considerable level, but rather, it is viewed as a ground for struggle over the quality and meaning of societal existence. Despite these diverse jurisprudential views, it is possible to map out a trail, twisted most of the time and overgrown; suggesting that the way has been what might be referred to as ‘denaturalization’ and that we gradually come to realize that law does not have a trans-historical, universal qualities or a priori. It does not have any natural essence but rather, it is just a human construct. More significantly, artifactualism signals some particular sort of jurisprudential gestalt. Theoretically, the jurisprudential inquiry was conceptualized through a paradigm which became the morality/law framework.
From the discussion, all the perspectives of artifactualism (Marxism, Liberalism, Feminism, Critical Legal Studies and First Nations Legal Theory) have varying degrees of influence over artifactualism. I tend to think that critical studies have the...

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