Is There Room For Norms In Our Legal System?

8 Pages 2029 Words

In the very persuasive essay, “ Norms and Normal Science: Toward a Critique of Normativity in Legal Thought”, Richard Delgado lays out the groundwork for the argument against the use of “norms” within the legal system. The question he fails to answer is whether or not the normative way of thinking has pushed the legal system along toward a more progressive point. There is evidence that points to the conclusion that many legal theories and movements would not have thrived under the law had “norms” not come into play. These theories and movements include Law and Literature, Legal Realism, Feminist Legal Theory, and Critical Race Theory.
Though there are drawbacks when relying on “norms” to make judicial decisions, the positives have appeared to outweigh the negatives. Delgado argues that the use of “norms” allows the morality of the times cloud what is supposed to be an impartial decision made by a judge. If in fact this argument holds water, many would be alienated by the decisions made by these judges who employ this way of thinking. It is my argument that these very “norms” aid in swaying the judges who employ them into making decisions that are beneficial to both society and the legal system.
One could argue that the “norms” of society in fact impede what feminists have set out to do. One can even argue that the case of Bradwell v. Illinois is a prime example of “norms” oppressing women in such a way that they are in essence alienated from participating in the legal system altogether. Though this was true at the time, these very “norms” forced the feminist movement to make their ideas into “norms”. Within Feminist Legal Theory, theorists argue that women should be treated as equals. In “Reconstructing Sexual Equality”, Christine Littleton brings forth the idea of Phallocentrism. The idea that this is a male dominated culture that is infused with male ideals is not a new one. She outlines...