批判法學
楊智傑
發展背景
• 「批判法學」（Critical Legal Studies）運動是美國自70
年代以來興起的一種法學運動，它承繼了美國「法律唯實
主義」（Legal Realism）對傳統法學中「形式主義」
(formalism)或「概念法學」(Begriffsjuriprudenz)的批判，
亦帶有些許「新馬克思主義」（ Neo-Marxism）對自由主
義、資本主義批判的色彩。從80年代開始，CLS在美國
逐漸趨向多元發展，如「批判女性主義」(Critical
Feminist)或「女性主義法律理論」(Feminist Legal
Theory)、「批判種族法律理論」(Critical Race Theory)等
更是紛紛出爐，可謂百家爭鳴、百花齊放。
無法約束法官
• A first theme is that contrary to the common
perception, legal materials (such as statutes and
case law) do not completely determine the
outcome of legal disputes, or, to put it differently,
the law may well impose many significant
constraints on the adjudicators in the form of
substantive rules, but, in the final analysis, this
may often not be enough to bind them to come
to a particular decision in a given particular case.
法律即政治
• there is the idea that all "law is politics." This means that
legal decisions are a form of political decision, but not
that it is impossible to tell judicial and legislative acts
apart. Rather, CLS have argued that while the form may
differ, both are based around the construction and
maintenance of a form of social space. The argument
takes aim at the positivist idea that law and politics can
be entirely separated from one another. A more nuanced
view has emerged more recently. This rejects the
reductivism of 'all law is politics' and instead asserts that
the two disciplines are mutually interspersed. There is no
'pure' law or politics, but rather the two forms work
together and constantly shift between the two linguistic
registers.
法律乃保障有錢人
• the law tends to serve the interests of the wealthy and the
powerful by protecting them against the demands of the poor
and the subaltern (women, ethnic minorities, the working class,
indigenous peoples, the disabled, homosexuals etc.) for greater
justice. This claim is often coupled with the legal realist
argument that what the law says it does and what it actually
tends to do are two different things. Many laws claim to have
the aim of protecting the interests of the poor and the subaltern.
In reality, they often serve the interests of the power elites. This,
however, does not have to be the case, claim the CLS scholars.
There is nothing intrinsic to the idea of law that should make it
into a vehicle of social injustice. It is just that the scale of the
reform that needs to be undertaken to realize this objective is
significantly greater than the mainstream legal discourse is
ready to acknowledge.
法律自相矛盾
• CLS at times claims that legal materials
are inherently contradictory, i.e. the
structure of the positive legal order is
based on a series of binary oppositions
such as, for instance, the opposition
between individualism and altruism or
formal realizability (i.e. preference for strict
rules) and equitable flexibility (i.e.
preference for broad standards).
人不是自由的
• CLS questions law's central assumptions, one of which
is the Kantian notion of the autonomous individual. The
law often treats individual petitioners as having full
agency vis-a-vis their opponents. They are able to make
decisions based on reason that is detached from political,
social, or economic constraints. CLS holds that
individuals are tied to their communities, socio-economic
class, gender, race, and other conditions of life such that
they cease to be autonomous actors in the Kantian
mode. Rather, their circumstances determine and
therefore limit the choices presented to them. People are
not "free"; they are instead determined in large part by
social and political structures that surround them.