Daily RC Article 65

Legal Views


Paragraph 1

What is “law”? By what processes do judges arrive at opinions, those documents that justify their belief that the “law” dictates a conclusion one way or the other? These are among the oldest questions in jurisprudence, debate about which has traditionally been dominated by representatives of two schools of thought: proponents of natural law, who see law as intertwined with a moral order independent of society’s rules and mores, and legal positivists, who see law solely as embodying the commands of a society’s ruling authority.

Paragraph 2

Since the early 1970s, these familiar questions have received some new and surprising answers in the legal academy. This novelty is in part a consequence of the increasing influence there of academic disciplines and intellectual traditions previously unconnected with the study of law. Perhaps the most influential have been the answers given by the Law and Economics school. According to these legal economists, law consists and ought to consist of those rules that maximize a society’s material wealth and that abet the efficient operation of markets designed to generate wealth. More controversial have been the various answers provided by members of the Critical Legal Studies movement, according to whom law is one among several cultural mechanisms by which holders of power seek to legitimate their domination. Drawing on related arguments developed in anthropology, sociology, and history, the critical legal scholars contend that law is an expression of power, but not, as held by the positivists, the power of the legitimate sovereign government. Rather, it is an expression of the power of elites who may have no legitimate authority, but who are intent on preserving the privileges of their race, class, or gender.

Paragraph 3

In the mid-1970s, James Boyd White began to articulate yet another interdisciplinary response to the traditional questions, and in so doing spawned what is now known as the Law and Literature movement. White has insisted that law, particularly as it is interpreted in judicial opinions, should be understood as an essentially literary activity. Judicial opinions should be read and evaluated not primarily as political acts or as attempts to maximize society’s wealth through efficient rules, but rather as artistic performances. And like all such performances, White argues, each judicial opinion attempts in its own way to promote a particular political or ethical value.

Paragraph 4

In the recent Justice as Translation, White argues that opinion-writing should be regarded as an act of “translation,” and judges as “translators.” As such, judges find themselves mediating between the authoritative legal text and the pressing legal problem that demands resolution. A judge must essentially “re-constitute” that text by fashioning a new one, which is faithful to the old text but also responsive to and informed by the conditions, constraints, and aspirations of the world in which the new legal problem has arisen.

Topic and Scope:  

The nature of law; specifically, various views about the nature of law.

Purpose and Main Idea:

The author’s purpose is to describe several different views about the nature of law. His main idea is that a number of new approaches to defining the nature of law have emerged since the 1970s.

Paragraphstructure:

paragraph 1 does two things: (1) it reveals the passage’s topic—the nature of law—and (2) it tells us that, historically, there have been two views about the nature of law—the Naturalist view, which considers law to be the embodiment of universal moral precepts, and the Positivist view, which considers law to be a set of rules determined by society’s legitimate ruling elite. Up to this point, we can’t yet conclude anything specific about the passage’s scope, purpose, and main idea; all we can say with certainty is that the rest of the passage will explore this general topic in more detail.

paragraph 2’s first sentence reveals the passage’s scope: views about the nature of law that have emerged since the 1970s. The rest of this paragraph  sketches two of these views. According to the Law and Economics school, the law is a system of rules intended to maximize society’s wealth. According to the Critical Legal Studies school, law is a system of rules intended to legitimize the authority of existing holders of power. This school, we’re told, differs from the earlier positivist school in that it doesn’t necessarily consider the ruling elite to be a legitimate source of authority. While we know the author’s topic and scope by the end of this paragraph , we still don’t have enough information to conclude anything about his purpose and main idea.

paragraphs 3 and 4 describe yet another modern view of the nature of law—that of James Boyd White, the founder of the Law and Literature school. According to this view, which takes issue with both the Law and Economics and Critical Legal Studies schools, law should be viewed as a literary process in which judges continually rewrite older laws to solve modern problems, thereby creating new laws. Only after reaching the end of the passage can we conclude that the author’s purpose is essentially descriptive and that his main point is simply that a number of novel views about the nature of law have sprung up over the past few decades.

The Big Picture:

  • If a passage contains more than one point of view, make certain that you can distinguish between (or among) them. A number of questions will surely test to see that you can make distinctions.
  • If a passage contains a lot of details, don’t worry about picking them all up during a first read through. Instead, just note where specific details may be found (by paragraph ), so that you can quickly relocate them should this become necessary to answer questions.

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