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