LAWS1001 FINAL

Parliamentary Supremacy

A principle according to which judges' decisions remain subordinate to decisions of the legislative majority

Brophy and Blokhius

Reveal the tensions between legal studies and law school

Critical and constructive

Demystifies the law (debunks the idea that law is simple, it's actually practical and messy)

Vago & Nelson's idea of law (ARIAIN)

1. Authoritative

2. Reactive

3. Interested in problem solving

4. Adopts artificial B&W (guilty or not guilty)

5. Instrumental

6. No need to question founding assumptions

Menkel-meaddow's 3 questions

1. What is the law as a field, where are its boundaries?

2. What ideas does law produce?

3. What is the purpose of legal education?

Tamanaha's questions

1. Is law a mirror of society?

2. Does it produce social order?

3. Is it a set of institutions?

4. Any limits to what law is or isn't?

Tamanaha & plural orders

Says that there are a variety of sources for "order" in society that aren't just labelled "law" like...

CUSTOMS, NORMS, HABITS

Tamanaha & the mirror theory (broken in 3 ways; 3 gaps)

1. Systemic non-conformity (what happens when ppl just ignore the law)

2. Out-dated law (ex: s. 71 of CCC for duelling)

3. No one employing legal remedies (ex. common in sexual assault cases)

Law as a mirror (Maine)

Law reflects the conditions in which it is enacted, applied, and enforced.

Reflected in social, economic, moral, and political conditions

Law as "order" / law as "restraint"

Law's function is to regulate and constrain the behaviour of individuals in their relationships w/ one another

Durkheim & the law

Says that law is a moral phenomenon, and it is never wholly "outside" of relations of people.

Says that law is a "shared resource"; it enables or undermines social solidarity

Durkheim: Mechanical Solidarity

Shared values, norms, and morals.

Durkheim: Organic Solidarity

Variations in society

Donald Black's 4 styles of law

1. Penal/social control (punishment as a form of justice)

2. Compensatory (compensation $$ for wrongs)

3. Therapeutic (repair relationships)

4. Conciliatory (allowing parties to mediate conflict & come to resolution; about hearing both sides equally)

Consensus View (Durkheim & Parsons)

Believe that society is functionally integrated as an "organic whole"

Says we all have a function in this society.

Society = stable system held together by a consensus of values

Conflict = minimized & needless

Says law = a NEUTRAL system

Conflict View (Marx and Simmel)

Says that society is characterized by conflict & is only held together by coercion

Order = temporary and unstable

Groups strive to maximize their own interests; no common interests

Law = instrument / weapon of repression

Law = not neutral or unbiased; it is used by groups to secure their own interests

Law fuels more dominant/powerful social interests

Law = "interested"

Weber's Definition of the law (Institutional Form) - Quote

"An order will be called law if it externally guaranteed by the probability that coercion (physical or psychological) to bring about conformity of average violation, will be applied by a staff of people holding themselves especially reading for that purpose"

Weber's Definition of law (3 distinguishable elects)

1. Pressure or threats must be external from some other source

2. Must involve coercion or force

3. Those who enforce the law must have an official role

Weber's idealized forms of law

1. Rational (logic, sci) vs. Irrational (faith, chance)

2. Formal (generalized rules) vs. Substantive (individual cases)

Canada takes on what form of idealized law?

FORMAL RATIONAL (generalized rules AND logic/sci)

Weber's 3 types of authority

1. traditional (tribal chief, council of elders, monarchy)

2. charismatic (liking the personality of leader; unstable)

3. legal/rational (system of offices, bureaucracy, predictable rules)

2 problems w/ Weber's approach

1. Too much emphasis on coercion

2. "Staff" referred to by Weber requires a complex division of labour & implies existence of separate bureaucracy (but in modern day, we have so many legal actors, not just officers and lawyers but doctors, psychologists, forensics)

Hoebel's 4 functions of law

1. It has to define the relationships & set a basic structure as to how we define it so we know what to expect

2. Allocate authority & right to exercise physical coercion as as a social privilege

3. Has to deal w/ trouble cases

4. Adapt to social change & redefine relationships accordingly

Cheyenne Way (indigenous) + Hobel

A case where Hoebel's 4 functions are demonstrated

1. Definition of relations (Want to borrow something? Must leave something behind as A) security and B) Identification of borrower)

2. Allocation of authority (Elk Elders to resolve disputes)

3. Trouble cases (Borrower & wolf-lies down mediate their dispute)

4. Adapt to social change (new rule is made so that you can't borrow without asking)

Hebel link to Weber

- Law must be flexible

- Power is trans-personalized (means beyond a person & given to them by virtue of their role) which makes you less reliant on the individual

Law tends to favour which? Balance between stability & flexibility

Law tends to favour stability, but TOO much stability can be static and harmful

Nils Christie (Praise of conflict)

Says that conflict is valuable and that it is stolen by

Lawyers & Criminologists

Lawyers monopolize disputes $$$

Criminologists "define" conflict away

3 Reasons why conflicts get stolen

1. Courts and mundane processes are tedious and uninteresting

2. Courts = inaccessible

3. Professionalism (jobs) seek disputes

Courts are peripheral to social life in 4 ways

1. Distanced by location (central downtown)

2. Distanced architecturally (hard to navigate)

3. Distanced by involvement of professionals (social workers, lawyers, etc.)

4. Presence of state worsens (in criminal for example, case is no longer criminal vs. victim, it is criminal vs. the state)

Christie's Alternative (Tanzania Case)

Case where the judges and lawyers were on the sidelines, just watching the disputes settle between the two parties (centre of court room)

Teubner (Praises legal complexity)

Says that people don't want laws to be more simple, they just want them to be more clear

Teubner wants things to be more wordy (complex)

Example: "Firearms" (not clear; very vague, Scott Case outlines the issues)

1. Natural Law (Morality)

God's or nature's law that defines right from wrong and is higher than human law

Originated from Ancient Greece

Is based on morality, which is ABSOLUTES

Problem: Law cannot be based on absolutes

Exists in the Charter, UN, Constitution, and Appeals to justice

Lex Injusta Non Est Lex

An immoral law = an invalid law...

Therefore can undergo an appeal to justice

Advantages of natural law

- Laws must have a moral content to them

- Provides criteria "outside" of the law to challenge existing laws (allows for appeals to justice)

- Can argue that some things cannot be done due to inherent dignity

Disadvantages of natural law

- Which/whose morals should be follow & use to legitimatize law?

- How do we know what morals are?

- Less stable and less predictable

- Reinforces "one god" (goes against freedom of religion)

2. Legal Positivism (Systemic Approach; Law on the books)

Says that the goal of law should be to promote predictability, calculability, and stability

Says that a law is valid if they go through a valid process (has nothing to do with "rights and wrong")