law and society midterm notes judicial...
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Law and Society Midterm Notes
Judicial activism: judges inadvertently apply their own beliefs in their decisions "a philosophy of judicial
decision-making whereby judges allow their personal views about public policy, among other factors, to
guide their decisions, usually with the suggestion that adherents of this philosophy tend to find
constitutional violations and are willing to ignore precedent‖ Ex. Institute for Canadian Values, Executive
Director and Director of Policy Development, Joseph C. Ben-Ami called a ruling by the Ontario Court of
Appeal (that a child can have three parents) "unnecessary" and an act of "naked judicial activism"
Moral Entrepreneur Theory: (Vago) One of the four different models of lawmaking. Laws as a means
to create or maintain a particular moral constitution of a society, Law as a means of stamping ideology
with ―legitimacy‖ and ―respectability‖
‘Coming into force’ : A stage of a bill, a bill becomes an Act when it receives Royal Assent, but
legislation is not automatically in effect. Laws come into force in several ways: royal assent, day specified
in the bill, on a day set by the governor in council ( The governor general on the advice of federal cabinet)
Justiciability : The claim must be ―triable‖ in the court in question (e.g. family courts are competent to
hear cases on child custody, support payments, adoptions, etc.). Certain courts have jurisdiction over
certain matters.
Standing : Only persons with standing are allowed to bring a dispute to court A plaintiff must have a
―genuine interest‖ in the matter before the courts, party has to demonstrate to the court sufficient
connection to the issue and also show how it causes them harm.
Constitutional law : Constitutional law is the law prescribing the exercise of power by the organs of a
State. It explains which organs can exercise legislative power, executive power, and what the limitations
on those powers are.
Entrenched law : Law that is entrenched legislation, meaning that it can only be changed by a specific
amending, formula (only if there is agreement from the federal government and every provincial
government). Every provincial government must agree, each province has a veto. This is significant
because it ensures that the law is real, constant and reliable.
Rule of Law : No one is above the law. The law needs to be fair and impartial. A cluster of principles,
practices & institutional arrangements whose purpose is: To constrain the exercise of governmental
power, To serve certain broad social goals (eg. individual liberty, democracy, equality, effective rule),To
help realize an effective social contract in which a political community is able to effectively govern itself.
Formal Equality: (Federalist papers) Everyone is equal and ought to be treated the same, regardless of
circumstances ex. Brown v. board of education - segregation
Substantive Equality : In contrast to formal equality, substantive equality requires treating people
differently to account for the inequality of their situations ex. Free university education for aboriginal
people to make up for poor circumstances
Jurisprudence : It is the study of law and legal theory, jurisprudence is a multi-dimensional interrogative
process in the pursuit of a better understanding of the nature and functions of law. Asks: What is the
nature of law? What roles/functions do legal institutions fulfull in society? Does law represent the shared
values of a nation or does it only enforce the values of the dominant community?
Perspectivism : one‘s point of view, perspectivism is important in discussing, analyzing and creating
law
Artifactualism : (Devlin) The idea that we can‘t understand law w/out recognising values reflected in it;
not the law, but laws. Concept that focuses on the need to take social context (ex. Gender, race, class,
ethnicity) into account when making legal decisions ex. R. v. Gladue, social context not taken into account
when judge made the decision. .
Legal Positivism: (Austin & Hart) What ―is‖ law not what it ―ought‖ to be, Judges should apply laws as
they are, they should not factor their own beliefs and opinions into legal decisions. Maintains that law and
society should be separate. Law is viewed as a system of rules. It also encompasses empiricism; a science
of law, a formula to making and applying laws ex. Precedent
Legal Realism : An early 20th century response to CLT. Law is part of a larger system; it is what judges
do. We must look behind the laws to see how the judges‘ intentions influenced them. Judges apply law,
factoring their own biases in to decisions, encompasses judicial activism
Natural Law : (St. Augustine, Plato, Aristotle) Natural law is not made by humans, it is a reflection of
divine and eternal law and is the same for all human beings. Emphasis on universality; fusion of law and
morality. Law exists and is universal, it is not created. An unchanging rule or pattern that it is our task to
discover. Exemplified by the CCRF
Empiricism: With reference to legal positivism, it is the scientific application of the law. Law can be
broken down to specific equations which can show how they came to be.
Analytical Jurisprudence: (Austin) Examining ― law as it is‖; "What are laws?"; "What is the law?";
"What is the relationship between law and power/sociology?‖. Judges should follow the exact wording of
the law to come up with a decision, judicial activism is forbidden. Judges are only meant to read and
understand written law, not create it.
Normative Jurisprudence: (Austin) examining law ―as it ought to be‖, evaluating legal theories, ―what is
the purpose of law‖ What is the proper function of law? What sorts of acts should be subject to
punishment? Judges must look at the intentions behind the laws through their own experience and
determining what out to be instead of what is. When written law does not cover specific situations, judges
must use their own discretion.
Command Theory of Law: (Austin) All laws are commands; non-optional, Law is a coercive method of
social control. Commands must have a certain pedigree in order to be legally valid, it matters who issues
the commands. A sovereign is the only legitimate source of commands.
Formalism : (Mill) Notion that legal rules form a consistent and complete whole from which the answer
to any legal question can be logically deduced simply by discovering the applicable rule and applying it to
the facts of the case. Any legal question can be deduced from law. Judicial reasoning can yield
determinate legal results, we can see why they apply laws in accordance to the rules. There is a separate
realm of law and everything will follow in its accordance
Abstraction : The law should operate at a high level of abstraction that excludes consideration of the
social context. By remaining abstracted it does not adhere to any particular culture or set of norms which
leads it to be fair. The law is broad enough to be applicable, but stipulates details enough the be relative.
Neutrality : (Mill) legal principles and law aren‘t based on any particular group‘s conception of good or
moral, this is a goal of law, not a reality, there is a group influencing the law in particular as law is
created. Laws are obviously are not culturally neutral, they aim to be neutral
Negative Liberty : (Berlin) The freedom from coercion, or interference with, individuals‘ private actions,
by other people. (i.e. freedom in the inverse; free from, not free to do). Mill‘s ONLY understanding of
freedom, which is insufficient, individual could contract/extinguish wishes (free?), Might be manipulated
by others and made to feel free.
Positive Liberty : (Berlin) Freedom to do (something), represents the ability to fulfill one‘s own potential.
This is a social liberal notion, that one allows a positive space for government to support individuals (eg.
Government can create the conditions that allow individuals to achieve their goals, so long as individuals
consent/ask for this.)
Legal-Rational Authority : (Weber) belief in the legality of enacted rules, consistent system of abstract
rules that have been intentionally established ―a system of consciously made rational rules‖. Relationships
seen as ‗membership‘ in an ―organization‖, individual right/duties as a ‗member‘ of the organization (i.e.
do not owe obedience to individual, but to impersonal order) Members equal before the law;
economic/social differences levelled.
Traditional Authority : (Weber) modelled on the relation between a ‗master‘ and ‗servant‘, fundamental
difference in social position/natural endowments (i.e. Social hierarchy justified by a ‗natural‘ order) based
on model of an ‗orderly household‘‘; natural participation & routine
Charismatic Authority : (Weber) devotion to exemplary character of an individual person (i.e. certain
quality not accessible to the ordinary person) authority only legitimate only if followers accept
claim/meaning, seen to have a calling which interrupts and challenges everyday routines. not bound to
intellectually analysable rules (supernatural?) inherently unstable authority; transcend life of the
household & society
Social Facts : (Durkheim) ―ways of acting, thinking, and feeling, external to the individual, and endowed
with a power of coercion, by reason of which they control him.‖ Certain structures in society are so
powerful that they control the actions of individuals and can be studied objectively, as in the natural
sciences. Social facts may be characterized by their ability to resist change. They have a coercive quality,
and their violation is met with some type of sanction, or at least some type of resistance. Ex. Laws,
morals, beliefs
Repressive Sanctions : (Durkheim) Consists ―essentially in suffering, or at least in some disadvantage
imposed upon the perpetrator of a crime. Their purpose is to hurt him through his fortune, his honour, his
life, his liberty, or to deprive him of some object whose possession he enjoys‖ (Durkheim, p. 37).
Punishment, serve as an example of what to do or not to do.
Restitutive Sanctions : (Durkheim) Does not necessarily imply any suffering on the part of the
perpetrator, but consists merely in restoring the previous state of affairs, re-establishing relationships
which have been disturbed from their normal form. Pay dues to society to restore order.
Historical Materialism : (Marx) History is a struggle between classes. Historical materialism looks for
the causes of developments and changes in human society in the means by which humans collectively
produce the necessities of life. Questions who has been the owner of wealth throughout history.
Proletariat : (Marx) This refers to the working class. Did not possess property, were underpaid and
overworked. Created a class struggle with the bourgeois who had economic power.
Bourgeois : (Marx) The law acts on behalf of the capitalist class (the bourgeoisie). Bourgeoisie rose from
oppressed class under feudalism to become dominant. Property owners, owners of wealth
Legal Instrumentalism : (Marxism) Sees law as an instrument that protects the interests of the
bourgeoisie but law is also used to protect them in ways of property and criminal law, not just
economically.
Ideology : A system of ideas that forms a lens through which we view the world.
Civil Liberties: Outlined by Mill, also referred to as individual freedoms. It is the classical liberal theory
focussing on the appropriate role of the law and government in the lives of citizens. Civil liberties include:
freedom from slavery or forced labour, freedom of expression, freedom of religion
Ethnocentrism: This theory suggests that some groups consider themselves to be superior and this
superiority leads them to believe their way is the only one ―right‖ way of reasoning. This presents a
challenge when trying to create social change.
Myth of Equality: Suggests that equality ignores the real value of seeing people as ―equals‖. In reality,
people are not treated as equals and society uses this myth of equality to ignore sexism and racism.
Mischief Rule: Refers to one of the methods of interpretation of statute law by the courts. It suggests that
attention should be given to the problem that the statute was intended to solve. The rule requires the Court
to identify the relevant pre-Act common law and from that the ―mischief‖ or injustice/defect that the Act
was designed to remedy.
Positive Policy Making: Refers to the legal theory that sanctions are intended for specific purposes and
goals in which society tries to prevent individuals from doing harm or being immoral. Positive
policymaking occurs when policies cause both negative sanctions and positive rewards
Proscriptive Policy Making : Function to bring forth negative sanctions. Rules and laws that don‘t
reward but instead are reinforced by punishment, promotes deterrence.
Locke:
State of nature – not necessarily good or bad, chaotic, rational
Purpose of government – to secure natural rights, property and liberty
Representation – ensures governments are responsive to the people, safeguard against oppression
Impact on founders – protect people from government, natural rights must be secured
Humans are guided by reason & governed by natural laws
Natural law: law is a reflection of the moral order
One must preserve oneself and not harm others in their enjoyment of health, liberty and
possessions
Free to pursue our own vision of the good
Gov‘t was to serve the people
Limited delegation of power, for limited purposes, revocable if government failed to
meet its obligations
―Wherever law ends, tyranny begins‖ – law was intended to prevent tyrannical rulers
Advocated for separation of powers between the legislature and the executive
But no independent judiciary or process of judicial review
Legislation is established by majority vote (only property holders)
Emphasis on the consensual nature of government.
Believed that non-propertied labouring class was lacking in reason
He believed that ―equality‖ was incompatible with civil society. Lead to:
―the protection of the industrious & rational against the lazy & quarrelsome is essential to
public happiness or the common good.‖
Hobbes:
Human beings are inclined towards disorder, rivalry, discord and chaos
Developed ―social contract theory‖
Method of justifying political principles via agreement made among suitably situated
rational, free and equal persons
Conclusion: we ought to submit to the authority of an absolute- undivided and unlimited-
sovereign power
Under the social contract, all individuals cede their natural rights for the sake of protection
Order and Civility are the effect of subjection to the sovereign
The sovereign is not subject to legal limitation
The creator of the law cannot be limited by the law (it can be altered by their will)
Rejected separation of powers, as this would generate conflict within the divided
sovereign handicapping its ability to preserve social order.
state of nature – war, no morality, constant fear
Purpose of government – to impose law and order to prevent state of war
Representation - Governments are designed to control, not necessarily represent
Impact on Founders – Governments must be designed to protect people from themselves
Montesquieu:
Liberty: not the right of doing what one pleases.
Rather, ―liberty is a right of doing whatever the law permits‖ (conferred under law)
Liberty exists only if people are free from tyranny
To prevent tyranny (abuse of power, arbitrary control, etc.) ‖power should be a check to power‖
The way to do this?
Separation of institutional powers (leg, executive & judicial.)
Independent judiciary central to Montesquieu‘s scheme
Judiciary is the point of most direct confrontation between gov‘t, law and individual, it can serve
as best barrier against lawless gov‘t actions
Judiciary: its role is to preserve of the rule of law
Judges and juries should be drawn from the people to sit for a temporary duration
Ensured a complementary connection between culture and the law
Devlin:
Task of judging is very difficult, Canadian society is becoming increasingly diverse
Judges function within this broader social, economic and political context
A need for ―social context education‖
Training that includes a critical reflection of social context issues (gender, race, class,
ability, sexual orientation etc) with respect to law and the act of judging
Believed that jurisprudence provides judges with an opportunity for self-reflection
Separates law into the following legal theories: Natural Law, Legal Positivism, Legal Realism,
Artifactualism
Austin:
Austin gave positivism its first systematic statement
Legal philosophy (jurisprudence) has two tasks
Analytical jurisprudence (―law as it is‖)
Normative jurisprudence (―law as it ought to be‖)
The failure to separate these tasks would create moral and intellectual confusion
Law can impose sanctions
Austin‘s positivism encompasses the ―Command Theory of Law‖
Law is a species of command that must have a certain pedigree in order to be valid
Laws are commands and are non-optional, we have no choice but to obey
Law is coercive method of social control
Commands must have a certain level of legal validity
Who makes the commands matters, we separate the legitimate commands from those that are
illegitimate by examining the source of them
the sovereign is the person/persons who make law
Sovereign is to be determined empirically and the question of the source of the sovereign‘s
legitimacy is a separate question
Hart:
Provided another perspective on legal positivism
Critiqued Austin‘s theory
Fatal confusion between concept of being obligated (under a duty) and being obliged
(forced) to do it
Austin‘s theory forces us to say that we are obligated or duty bound to surrender our
money to a gunman in a stickup
By Austin‘s logic (command theory) the gunman, because he issues a command, is
making law
People should feel obligated to obey the law, not obliged
Law as a system of rules
Primary Rules: rules that tell people how to act in particular circumstances
Secondary Rules: rules about rules
A legal system needs a union of both types of rules
Mill:
English philosopher and economist; classical liberal theorist
Liberalism - an ideology and a political tradition which holds that liberty is the primary political
value
Looks at what the law ought to do and sees connection between what is rational and what is legal
Focus on appropriate role of law and gov‘t in lives of citizens
Support a free market and a small role for the state- with free thinking and liberty the people will
compete and work to innovate; thus, helping society
The liberal metaphor is that the world consists of a multitude of independent individuals who have
somehow, at some time, entered into an accord (social contract) to establish common ties for the
common good
―The only freedom which deserves the name, is that of pursuing our own good in our own way, so
long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it‖
We can pursue freedom so far that it doesn‘t impede on someone else‘s freedom
What kind of power can society legitimately exert over the individual?
Although Mill doesn‘t subscribe to the notion of a social contract, he does acknowledge a mutual
obligation
―Everyone who receives protection [...] owes a return [&] each should be bound to
observe a certain line of conduct towards the rest.‖
His focus is then on ―Conduct‖: (not thought)
Not injuring the (rightful) interests of one another
Bearing his/her share of the labours & sacrifices for defending society or its members from injury
or molestation (i.e. a kind of mutual social responsibility)
Citizens decide - as a group - whether the values and interests of society ought to change. No
individual has the right to do/impose this on others
Harm Principle - Interference with the liberty of an individual is only justified to prevent harm to
others. Otherwise, the individual is ‗sovereign‘, and should be allowed to manage her/his own
affairs in any way s/he likes – but ―stand the consequences‖
This includes the right to be self-destructive
Mill regards liberty as a requirement for human advancement, both individual and ultimately
collective; Need to take risks and be challenged.
Mill believes liberty is defined as the appropriate area for individual human action to be unlimited
by governmental intervention.
To Mill, this is the area where an individual‘s action has only a direct effect on him or herself.
(not others)
Mill acknowledges that such actions may indirectly affect others, but there is no legitimate state
interest in limiting this kind of action.
(i.e. Free insofar as it does not harm others)
A legitimate government respects the free will of individuals, democracy
Government only to monitor and regulate individual freedoms when they start affecting the liberty
of others
Berlin:
Liberal philosopher who developed his two concepts of liberty based off of Mill‘s work
As an eight year old, he witnessed the Bolshevik Revolution that installed Lenin and instituted
the ‗Soviet Reign of Terror.‘
Escaped to England with family where he was educated.
His early experience with totalitarianism had a significant impact on his life‘s work. In all his
writings we find a strong defence for liberty and liberal, pluralistic society
Two Concepts of Liberty—negative and positive liberty
Negative Liberty - The freedom from coercion, or interference with, individuals‘ private
actions, by other people (i.e. freedom in the inverse; free from, not free to do)
Mill‘s ONLY understanding of freedom, which is insufficient
Individual could contract/extinguish wishes (free?) Might be manipulated by others and made to feel free
Positive Liberty - Freedom to do (something). Represents the ability to fulfill one‘s own
potential.
This is a social liberal notion, that one allows a positive space for government to
support individuals
(eg. Government can create the conditions that allow individuals to achieve their
goals, so long as individuals consent/ask for this.)
Critical reasoning leads us to freedom, knowledge liberates by eliminating irrational fears, we are
able to discern rationally intelligible laws (decide ourselves)
Weber:
German sociologist, philosopher and political economist
Wanted to understand the processes of rationalisation, secularisation and disenchantment
associated with the rise of capitalism and modernity (ie dis/order in society)
Order exists when conduct is oriented to maxims
(i.e. people consciously or unconsciously take into consideration some stable set of
commonly accepted assumptions and rules of behaviour)
Individuals may orient their conduct to the maxims (the rules) because of coercive
sanctions or because they feel the law is legitimate.
There is no unique cause, but rather several forces together exerting an influence.
Developed three theories of authority
Traditional Authority - modelled on the relation between a ‗master‘ and ‗servant‘
(i.e. Social hierarchy justified by a ‗natural‘ order). Based on model of an ‗orderly
household‘‘; natural participation & routine
validity of the order comes from habit, custom and tradition; modeled upon the
relationship of servant/master, father/child; premised on a relationship of unequals;
what Weber calls ―the pathos of distance;‖ -associated with the economic
regulation of the ―oikos‖ (household).
Charismatic Authority – devotion to exemplary character of an individual person
(i.e. certain quality not accessible to the ordinary person). This type of authority is only
legitimate only if followers accept the claim/meaning of the leader. A charismatic leader
seems to have a calling which interrupts and challenges everyday routines, not bound to
intellectually analysable rules (supernatural?). Inherently unstable authority.
Charismatic authority rests on the appeal of leaders who claim allegiance because
of the force of their uncommon or exceptional personalities. rests on ―devotion to
the exceptional sanctity, heroism, or exemplary character of an individual person‖
Legal-Rational Authority - belief in the legality of enacted rules, consistent system of
abstract rules that have been intentionally established. Relationships seen as
‗membership‘ in an ―organization‖ where there are individual right/duties as a ‗member‘
of the organization (i.e. do not owe obedience to individual, but to the impersonal order).
Members are all equal before the law; economic/social differences levelled
Rational legal authority is anchored in impersonal rules that have been legally
established. Notion of ―formalistic impersonality‖. The rule of law as an example –
assures predictability, calculability and stability. Notion of ―bureaucracy‖ is
important here – for Weber, bureaucratic organizations were an attempt to subdue
human affairs to the rule of reason (i.e. to make it possible to conduct the business
of the organization "according to calculable rules."
Weber saw two dimensions of law in two degrees
Formally Irrational laws: Decision making rests on magic, the oracle, or revelation
Substantively Irrational laws: Each concrete situation determines the decision. Each
case employs any one of a number of ethical, political, ideological, moral or emotional
consideration(s).
Formally Rational laws: Internal rules are applied to all similarly situated cases in an
identical manner. Rules are abstract and general.
Substantively Rational laws: Examples include plea-bargaining, affirmative action, the
defence of necessity, UN definition of human rights, etc. Laws that focus on individual
rights
Weber sees law evolved from a substantively rational system to a formally rational one
Main form of contract is the purposive contract, all are endowed with formally equal rights. The
legal system is perceived as autonomous from economic and political manipulation.
The individual as a bearer of rights now enters many transactions without committing his/her
whole personality. Transactions entered are now guaranteed by the state. We now live in a
―contractual society‖
Sees law as providing order and stability Law is a way to warn those who might destabilise this
order The type of law (and punishment) present in society is an indication of society‘s values and
identity (i.e. death penalty? Diversity of values?) So law gives a sense of place and indication of
how to behave? If law reflects our values is crime and punishment part of this process? (i.e. do
we need crime/criminals to remind us of our shared values & ID?)
Durkheim:
Used sociology to explain how society functions. Sought to find a scientific basis for explaining
social order
Regarding social order, Durkheim asked: What is the basis for social order?
Functionalism - The analysis of social and cultural phenomena in terms of the functions they
perform in a sociocultural system. In functionalism, society is conceived of as a system of
interrelated parts in which no part can be understood in isolation from the whole. A change in any
part is seen as leading to a certain degree of imbalance, which in turn results in changes in other
parts of the system and to some extent to a reorganization of the system as a whole. The
development of functionalism was based on the model of the organic system found in the
biological sciences
Three elements of functionalism
The general interrelatedness, or interdependence of the system‘s parts
The existence of a ―normal‖ state of affairs, or state of equilibrium, comparable to the
normal or healthy state of an organism;
The way that all the parts of the system reorganize to bring things back to normal.
Example of a virus: Organisms depend on everything working properly and efficiently. A virus
causes disequilibrium in the organism. Equilibrium will be restored through an auto-immune
response to attack the virus and restore the organism to its normal or healthy state
Durkheim believed that one could objectively show how social structures work through
quantifiable methods. His first rule to accomplishing this was to consider social facts as things.
Social facts - ―ways of acting, thinking, and feeling, external to the individual, and endowed with
a power of coercion, by reason of which they control the individual.‖ Ex. Laws, morals
Certain structures in society are so powerful that they control the actions of individuals and can be
studied objectively, as in the natural sciences.
Social facts may be characterized by their ability to resist change. They have a coercive quality,
and their violation is met with some type of sanction, or at least some type of resistance.
For Durkheim, law is intimately connected with the nature of solidarity.
Durkheim adopted an essentially collectivist approach to understanding society which involved
different forms of ―solidarity.‖ Solidarity operates in various societies like a ―social glue‖
values, customs and beliefs that everyone shares in a collecting binding
Society produces two forms of solidarity: mechanical and organic. Society develops form a
primitive (mechanical) form to a higher (organic) form.
Mechanical Solidarity - solidarity in ‗primitive‘ societies. Close-knit society, as society
becomes more complex, through the division of labour, mechanical solidarity breaks down
and is replaced by organic solidarity.
Organic Solidarity - Mutual dependence is the bond. Greater division of labor between
members, impersonal.
Two forms of sanctions that keep solidarity in check, the form of law prevalent in society indicates
the type of social solidarity that is present. The type of sanction (punishment) prevalent in a society
corresponds with the strength of the bond of social solidarity.
Repressive Sanctions - Consist essentially in suffering, or at least in some disadvantage
imposed upon the perpetrator of a crime. Their purpose is to hurt him through his fortune,
his honour, his life, his liberty, or to deprive him of some object whose possession he
enjoys. Punishment (vengeance?). Serves as an example of what not to do.
Restitutive Sanctions - Do not necessarily imply any suffering on the part of the
perpetrator, but consist merely in restoring the previous state of affairs, re-establishing
relationships which have been disturbed from their normal form. Pay dues to society to
restore order
Like Weber, sees law as providing order and stability
Marx:
Conflict theorist, developed a powerful critique of capitalism.
Does not see law as the expression of common values of a society
Society not formed or structured upon consensus, instead societies are divided by class conflicts
(Proletariat vs. Bourgeoisie )
Modern bourgeoisie is the product of a long course of development – a series of revolutions, but it
has not done away with class antagonisms. Established new classes, new conditions of oppression,
new forms of struggle in place of old ones.
―The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal,
idyllic relations. It has pitilessly torn asunder the motley feudal ties that bound man to his ‗natural
superiors,‘ and has left remaining no other nexus between man and man than naked self-interest,
than callous ‗cash payment.‖
Unlike Durkheim and Weber, Marx did not see his sociology isolated from political action, but
they were all ―evolutionary social theorists‖, legal systems evolved with socio-eco system.
Marxism is composed of three tenets
Dialectical and materialist philosophy of history
Critique of political economy (critique of capitalism)
Socialist politics (advocacy of proletarian revolution)
Economic relationship of society is represented by Marx‘s base and superstructure model
Base = its economic structure
Superstructure = its totality of beliefs, illusions, modes of thought, views of life, ideals, ideas, &
the institutions (ie law) that produce/reify this.
Classic Marxism: Society is structured upon a base (its economic structure) which determines its
superstructure (its totality of beliefs, sentiments, morality, illusions, modes of thought, forms of
consciousness, views of life, ideals, ideas, & so on).
The base determines (conditions) the superstructure, yet their relation is not strictly causal, because
the superstructure often influences the base; the influence of the base, however, predominates
Law is part of the superstructure. i.e. Capitalist laws service capital & the bourgeoisie
Law is an ―instrument‖ of capital, serves the interests of the dominant class. Property law &
criminal law created to protect ―property‘ & the sustained interests of the ruling class.
Law is one of the means by which the ruling class can expand and consolidate their power (e.g,
regulate labour)
Under capitalism, industrialized production & wage labour produce & reproduce class divisions of
the bourgeoisie (owners of production) & the proletariat (labourers of production).
Change takes place through many small conflicts (changes) that finally add up to a major crisis &
social transformation, proletariat eventually rises against the bourgeoisie
Chambliss
What material social conditions contributed to creation of vagrancy laws?
Black Death: decimated Britain‘s labour force
Crusades: lords needed money to support these wars; sold freedom to their serfs; influx of
―liberated‖ workers around countryside & newly forming cities.
Wages for ―free men‖ rose; this lead to harder conditions for serfs who then run away.
1st vagrancy statute 1349: Made it a crime to give alms (charity) to any who were unemployed
while being of sound mind & body; or if a worker/servant left a ―man‘s service‖ without
reasonable cause or licence = imprisonment
Why were these laws created? To force labourers (free & unfree) to accept employment at a low
wage in order To ensure the landowner an adequate supply of labour at a price he could afford to
pay (i.e. To prevent workers from moving/leaving and seeking alternate, better, conditions)
Contemporary Incarnations of Vagrancy Law - collapse of the American banking system (stock
market crash) – worldwide impact, Vagrancy Law – California restricted the admission of
migrants from other states
Safe Streets Act
Classical Legal Thought:
Enduringly influential view of law and its place in society
Dominant ideology of legal profession from 1860s to 1930s
Secular and liberal in orientation, individual rights, individualistic people, mutually
disinterested/self-interested people
Freedom from interference
Equality
Universality
Theorists claimed Neutrality: ―Objective‖, ―scientific‖, ―rational‖
Judges find law, don‘t make it, formalist approach to legal reasoning, like a science or
mathematics
Legal reasoning is apolitical, neutral, determinate and objective
Legal & political/moral are separate
Advocated ―formalist‖ approach to legal reasoning
Logical application of abstract formal rules of legal interpretation, thought to produce
determinate, objective, apolitical results
Legal reasoning aspired to be science akin to mathematics
Legal Realism:
Early 20th century (mostly 1920s- 30s) response to classical legal thought by young legal scholars
Politically progressive
Law is indeterminate – not fixed, it changes
Judicial temperament, social class, values, etc, are more important in the final outcome of cases
―Law is a prediction of what courts will decide‖
Realists rejected abstract rules & sought to base interpretation on reality
The law is grossly indeterminate (most cases could go either way)
Judges don‘t appeal to abstract rules
They decide based on how the facts of the case will strike them (ideological predilections)
We get fairly consistent decisions because we all share basic ideological predispositions
Proposed functionalist approach to legal interpretation
Law is not a set of ideal standards, but a function of society
Law should be used to promote human improvement
Law should evolve as society evolves
Rights should be respected insofar they promote the common good
Realists firmly committed to liberalism
Law can be used as a tool for human improvement, equality through institutional access
Improve legal system by assisting lawyers and students to understand how the law really works in
practice
legal doctrine as a façade, masking the real source of law (its social political context)
Instead of subordinating facts/judicial decisions to rules, LR subordinates rules to facts
Critical Legal Scholars:
Diverse group united by opposition to intellectual & political dominance of the liberal
establishment
Roots in ―legal realism‖ movement of early 1900s (i.e. the skepticism of formalist approaches to
law)
Also influenced by Marxism (i.e. the belief that the legal system was linked to the inequitable
political relations of power)
Legal discourse a ―stylized‖ version of political discourse
Indeterminacy (ex. Judicial decision making) is heavily conditioned & shaped by a pervasive
ideology (system of beliefs that appear natural)
Legal consciousness persuades rulers and ruled that the judicial process results in impartial
decisions but the legal process is politics in another form
Law is simply politics dressed in different garb; it neither operates in a historical vacuum nor does
it exist independently of ideological struggles in society
Doctrines of jurisprudence are constantly being re-invented because all of them are fictions
CLS starts with a criticism of liberalism: liberalism presumes people are economically and
socially independent, assumes ‗neutrality‘, CLS demonstrates that this is a lie
Realists focus more on the facts. CLS: judges are subjective, places primacy on the rules
Skeptical: that there is any moral truth or neutral perspective from which we could make valid
legal rules
Relativist: because in a complex world we‘re going to get radically inconsistent schemes of value
which cannot be reserved
What is ―law‖ in CLS? Social struggle is constant, law is simply the reflection of the prevailing
social order at some particular time
Traditional legal theory obscures underlying social struggles by trying to convince us that the
present social order is natural (not historically contingent)
Understanding underlying social realities and how they are reflected in law is necessary before
real social change can occur
guarantee that a rights discourse works in favour of historically & socially disadvantaged
Change of political direction of Courts in 1980s & 1990s from progressive to conservative saw
courts vindicating rights of whites in affirmative action cases
Dangerous to rely on rights-claims in a judicial arena instead of a political one
Rights-based strategies (legal) tend to mask the underlying social conditions of inequality
Law & Social Change:
What is social change? Large numbers of people engaging in group activities & relationships that
are different from those in which they or their parents engaged in previously. (i.e. modification in
the way people work, rear family, educate their children, govern themselves and seek meaning in
life)
What causes social change? A multitude of interdependent factors (e.g. technology, conflict,
political & economic factors)
Some theories that have explored this relationship
Marxism – class conflict and organisation, also see Chambliss article re: vagrancy law
Durkheim – law reflects complexities of society
Also see Weber‘s ‗types of legitimate authority‘
There is a controversial Relationship Between law and social change
Is law determined by the sense of justice and the moral sentiments of the population? (i.e. is it
close to, and reflecting, prevailing social norms?)
Or is law a means through which social change can be brought about? (i.e. is law on the cutting
edge of changing morals)
2 different perspectives
Bentham: Law can (& should) lead society, Legal reforms should respond to new social
needs & restructure society.
Law should create the greatest good for the greatest number of people
Therefore, the law should intervene in society to make positive changes where
these are required
Entails a confidence in the power of law
Inherent benefits of law
Law stands apart from society it is designed by legislators, following reason and
science, and created to act upon society
Von Savigny: Law is (& should be) limited to following society‘s lead Only fully
developed customs can form the basis of legal change.
Only fully developed customs can form the basis of law (and justify change to
law)
Law must be based on established customs in order to be effective (in governing
populace)
This suggests that law is a popular creation (i.e. it is is made in the streets, homes,
marketplaces etc., not in the legislatures!)
Law is determined by a sense of justice
The political implication is that (radical) social reform makes bad (unreliable) law.
law is a dependent variable it is determined & shaped by the current mores and
opinions of society thus legal changes are impossible unless preceded by social
change
Social Change as a cause of legal change
Changes to law can result from changes in social conditions, knowledge, beliefs & attitudes,
technology, etc.
Liberalization of Canadian Divorce Law
Matrimonial Causes Act of 1857Divorce Act, 1968
Divorce Act, 1985
Shift from very difficult (impossible?) divorces to divorce almost on demand
Widespread change in how marriage is viewed
40 years ago legislation modeled on the belief that: marriage was a binding legal
contract that you should not be able to get out of unless you were the victim of
abuse
Current legislation based on belief that: he state has no business using coercive
power to keep people in marriages they have decided to leave
Conservative Criticism of ―Interest Advocacy‖
Unelected representatives of the court (‗legal elites‘) & advocacy groups circumvent
political will of the masses:
Assumes judges are the only elites
Are politicians and business people a type of ‗elite‘?
Assumes politicians reflect ―will of the people‖
Are politicians limited/governed by party politics?
Progressive Criticism of ―Interest Advocacy‖
Charter will assist corporate power in attacking the welfare state
Assumes we are a welfare state
Are we not a neo-liberal state?
Is the Charter only a tool for corporate interests? (i.e. Who has access to the courts? Who has the
means to pay for the costs of litigation?)
Political Litigation , Lobbying, or Street-level Activism
Litigation: using courts to challenge gov‘t action
An expensive form of political activity
Lobbying: aimed at influencing public officials (esp. members of legislative body)on legislation
Street-level political activism: demonstrations, rallies, public speeches, campaigning, grass-roots
organizing, electoral issues
Pre-Charter Interest Advocacy - Charter litigation may be generated from ‗rights consciousness‘
produced in post-Second World War era Rights consciousness is itself embedded in larger
patterns of social & political change that preceded it. (e.g. Denial of Chinese business men to hire
white women (re Yee Clun))
Hurdles in Charter Litigation:
Proving that the purposes of Charter rights have been violated by govt action (e.g.
Violation of s15 – not just unequal treatment, but discrimination based on an enumerated
or analogous ground.)
Discrimination = ―a distinction, whether intentional or not but based on grounds relating
to the personal characteristics of the individual or group which has the effect of imposing
burdens, obligations, or disadvantages on such individual or group not imposed on
others, or which withholds or limits access to opportunities, benefits, and advantages
available to other members of society‖ (Andrews v Law Society of B.C.)
Gov‘t can have initiatives that treat people differently, but do not harm disadvantaged
groups Considering other competing interests that justify a restriction on a Charter right
S1: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms
set out in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society."
Justifying a restriction on a right, competing interests may be larger societal interests
(e.g. Concerns about drunk driving, hate propaganda & violent pornography)
Oakes Test: measures adopted must be carefully designed to achieve the objective should
impair as little as possible the right or freedom in question more severe the negative
effect of the limitation on an individual, the more important the objective must be (i.e.
needs to be justifiable in a free and democratic society)
Convincing the court to grant an ‗appropriate & just‘ remedy: Not just respect rights of
those who have suffered the violation, but of others affected by the remedy.
Often turned back the issue to the legislatures to devise their own remedy (i.e. amend a
law)
Procedural barriers: Losing party must pay a substantial portion of the costs of the
winning side.
Discourages ‗innovative‘ claims & frivolous litigation
Rules of standing: who gets to initiate or participate in a challenge
Usually the person directly affected by an impugned law or gov‘t activity to challenge its
constitutionality or legality
advocacy groups may apply for intervener status (submission of factums, not evidence).
Concluding Remarks re: Law and Social Change
Not necessarily true that Charter has led to interest advocacy based on litigation of rights
Before the Charter minorities were faced to defend their interests in court.
Under the Charter, they have a slightly better chance of success
But interest advocacy litigation will be restrained by the financial and procedural barriers that
groups face
Charter provides opportunities for individual rights to be reconciled with collective rights and the
public interest (i.e. mechanism for hearing from all citizens)
Perspectives on Lawmaking
Rationalistic Model Functionalistic Model Conflict Perspective Moral Entrepreneur Theory
proposes that laws are
created as rational means of
protecting the members of
society from social harm,
crimes are considered
socially injurious
formulated by Bohannan is
concerned mainly with
how laws emerge, laws are
a special kind of re-
institutionalized custom
and lawmaking is the
restatement of some
customs
cites value, diversity,
unequal access to
economic goods and the
resulting structural
cleavages of society as the
basic determinant of laws,
the origin of law is traced
to the emergence of an
elite class that used social
control mechanisms such
as laws to perpetuate their
own advantageous
positions in society
attributes the precipitation of key
events to the presence of an
enterprising individual or group,
they are enterprising the creation
of a new fragment of moral
constitution of society, its code
of right and wrong
The British North America Act vs. The Constitution Act
The BNA Act (1867) The Constitution Act (1982)
First to Unite provinces of Canada
Section 91 and 92 et out the powers of the federal
and provincial government
Bicameral Parliament: elected House of commons
and an appointed senate
BNA act passed by Britain, not Canada
1930 conference held that no law made by
Parliament of United Kingdom should extend to
any dominion unless they request it
Added amendment formula
(―Patriation‖ of the Constitution)
Added Charter of Rights and Freedoms
Added an explicit constitutional recognition of
treaty rights for aboriginal peoples of Canada
* Was not accepted by Quebec and was adopted
over Quebec‘s objections
With the passage of the constitution act, the
constitution was patriated – to make into law a set
of amending procedures that can be carried out in
Canada entirely by Canadian governments,
legislative bodies or electorates
Until the passing of the Constitution Act, there
was no amending formula for the British North
America Act
The Canadian Bill of Rights vs. The Canadian Charter of Rights and Freedoms
Bill of Rights (1960) Charter of Rights and Freedoms (1982)
Protect the civil rights of Canadians
Federal Statute, not entrenched constitutional
document
Supporters of parliamentary supremacy feared that
the Bill of Rights would move Canada closer to
the US model
Shift in power from legislative to judicial
branches of government
Task of judges to determine whether legislation of
either the federal or provincial governments
offends the core values of the Charter
Entrenched, rights are guaranteed (within a
reasonable limit)
Hobbes, Locke & Montesquieu
Hobbes Locke Montesquieu
State of Nature
Human beings are
inclined towards
disorder, rivalry,
discord and chaos
war, no morality,
constant fear
not necessarily good
or bad, chaotic,
rational
Humans are guided
by reason &
governed by natural
laws
Advocate of natural
law
Liberty only exists if
people are free from
tyranny.
Purpose of
Law/Government
Developed ―social
contract theory‖ - all
individuals cede their
natural rights for the
sake of protection
Order and Civility are
the effect of subjection
to the sovereign
to impose law and
order to prevent state
of war
Representation -
Governments are
designed to control, not
necessarily represent
Governments must be
designed to protect
people from
themselves
No separation of
powers
Gov‘t was to serve
the people
Limited delegation
of power, for limited
purposes, revocable
if government failed
to meet its
obligations
Separation of powers
between the
legislature and the
executive but no
independent
judiciary or process
of judicial review
Legislation is
established by
majority vote (only
property holders)
Emphasis on the
consensual nature of
government.
―Wherever law ends,
tyranny begins‖
Liberty: not the right
of doing what one
pleases. Rather,
―liberty is a right of
doing whatever the
law permits‖
(conferred under
law)
To prevent tyranny
(abuse of power,
arbitrary control,
etc.) ‖power should
be a check to
power‖
Separation of
institutional powers
(leg, executive
branch & judiciary.)
Judiciary is the point
of most direct
confrontation
between gov‘t, law
and individual
Rule of Law
The sovereign is not
subject to legal
limitation
The creator of the law
cannot be limited by
the law (it can be
altered by their will)
Everyone is subject
to the law
If the government
fails to meet
obligations people
can rebel
Rule of law can be
preserved through
the judiciary
Natural Law and Legal Positivism
Natural Law Legal Positivism
Greek and Roman thinkers Plato, Aristotle and
Cicero, Medieval Christian theologian St. Thomas
Aquinas
people obey the law out of respect/recognition that
it was morally correct and our moral duty to obey
moral validity is a necessary condition for legal
validity – an unjust or immoral law being no law at
all
the moral order is a part of the natural order –
moral duties ―read off‖ from essences or purposes
fixed (perhaps by God) in nature
Logical connection between law & morality
Not made by humans (divinely ordained? Law of
universe?)
Universal & eternally true, same for all human
beings and at all times
An unchanging rule or pattern that it is our task to
discover
A means by which human beings can rationally
guide themselves to realize their potential
Fundamental entitlements (ex. Freedom and
dignity of humans based on reason and distinctness
of humans ex. CCRF
Keep law and morality separate to avoid confusion
Represents a response to natural law
Scientific Application of the law
One of the aims is to distinguish law from other
kinds of rules such as morals
Exemplified by precedent
Laws are made by human beings
Two approaches to positivism : John Austin, HLA
Hart
Austin:
Austin gave positivism its first systematic
statement
Legal philosophy (jurisprudence) has two tasks
1. Analytical jurisprudence (―law as it is‖)
2. Normative jurisprudence (law as it ought to be)‘
All laws are commands; nonoptional
Law is a coercive method of social control
What is a command? Signification of desire and
ability to inflict evil or harm for nonsatisfaction
Law can impose sanctions
who makes the commands matters, we separate the
legitimate commands from those that are
illegitimate by examining the source of them
the sovereign is the person/persons who make law
sovereign is to be determined empirically and the
question of the source of the sovereign‘s
legitimacy is a separate question
Hart:
Law is composed of two kinds of rules and it is in
the presence of both of these rules that defines law
1. primary rules: rules that tell people how to act in
particular circumstances
2. Secondary rules: rules about rules
Three basic types
Recognition-when is a rule legitimate
Change-how are the rules changed
Adjudication-what do we do when it is alleged that
a rule has been broken?
hart focuses on law as a system of rules
developed a way of thinking about the law that
provided both intellectual illumination and a basis
for moral criticisms
By Austin‘s logic (command theory) the gunman
because he issues a command is making law
Saw Austin‘s command theory made the legal
system a ‗gunman writ large‘
Law is not a necessary evil; it makes for civilised
life and complex institutions
Legal Realism Critical Legal Studies
Realists firmly committed to liberalism
Law can be used as a tool for human improvement
Equality through institutional access
Improve legal system by assisting lawyers and students to
understand how the law really works in practice
Instead of seeing law as determined rules and principles: legal
doctrine as a façade, masking the real source of law (its social
political context)
Instead of subordinating facts/judicial decisions to rules (like
Hart & Dworkin) - subordinate rules to facts
Law is indeterminate
O.W. Holmes ―the life of the law has not been logic‖
Judicial temperament, social class, values, etc, are more
important in the final outcome of cases
Holmes was very skeptical of the model of law being the
application f rules
―Law is a prediction of what courts will decide‖
Realists rejected abstract rules & sought to base interpretation on
reality
Legal realists are rule-skeptics
The law is grossly indeterminate (most cases could go either
way)
Judges don‘t appeal to abstract rules
They decide based on how the facts of the case will strike them
(ideological predilections)
We get fairly consistent decisions because we all share basic
ideological predispositions
Legal discourse a ―stylized‖ version of political
discourse
Indeterminacy (ex. Judicial decision making) is heavily
conditioned & shaped by a pervasive ideology (system
of beliefs that appear natural)
Legal consciousness persuades rulers and ruled that the
judicial process results in impartial decisions but the
legal process is politics in another form
Law is simply politics dressed in different garb; it
neither operates in a historical vacuum nor does it exist
independently of ideological struggles in society
Doctrines of jurisprudence are constantly being re-
invented because all of them are fictions
Instead of seeing law as determined rules and principles:
indeterminacy is found in all social practices (ex. In the
economy, in government and in labour markets)
Subordinating facts/judicial decisions to rules is a good
starting point, but facts aren‘t ―objective‖; ideologically
biased
CLS adds the rule-skepticism of legal realism to leftist
politics
CLS is the skeptical and relativist
Skeptical: that there is any moral truth or neutral
perspective from which we could make valid legal rules
Relativist: because in a complex world we‘re going to
get radically inconsistent schemes of value which cannot
be reserved
Law is simply the reflection of the prevailing social
order at some particular time
Traditional legal theory obscures underlying social
struggles by trying to convince us that the present social
order is natural (not historically contingent)
Understanding underlying social realities and how they
are reflected in law is necessary before real social
change can occur
CLS critique of rights-discourse
No guarantee that a rights discourse works in favour of
historically & socially disadvantaged
Change of political direction of Court in 1980s & 1990s
from progressive to conservative saw courts vindicating
rights of whites in affirmative action cases
Dangerous to rely on rights-claims in a judicial arena
instead of a political one
Diminishes their attention to other arenas of political
action namely legislatures & the streets
Rights-claims tend to be fought out legally on an
individual level
Reinforces individualism (aspect of liberal ideology)
Hampers the development of community solidarity that
could generate more substantial progressive change
Rights-based strategies (legal) tend to mask the
underlying social conditions of inequality