Legal History and Theory: Enlightenment, Weber, Marx, and Surveillance

What was the 'Bloody Code' in England?

A set of laws that imposed the death penalty for numerous offenses, primarily targeting poor people.

What role did the courts play in society according to the notes?

The courts functioned as a means of social control, maintaining obedience and order.

What is a royal pardon?

A legal forgiveness granted by the crown, allowing individuals to avoid punishment.

How does the law function as a belief system?

The law is seen as a tool for maintaining social order and control, influencing public perception and behavior.

Who was Donald Marshall Jr.?

A man wrongfully imprisoned for life for a crime he did not commit, highlighting issues of race and class in the legal system.

What impact does class and race have on legal outcomes?

Individuals from poorer or racialized backgrounds are more likely to face wrongful arrests and harsher penalties.

What is the Female Refuges Act?

A law aimed at addressing issues of domestic abuse and the treatment of women in society.

What are the two elements of law according to Max Weber?

Formality (legal rules and procedures) and rationality (consistent application of decisions across similar cases).

What is the significance of the Enlightenment period in legal history?

It marked a shift towards reason and the establishment of modern legal and economic institutions.

What is the Panopticon?

A prison design by Jeremy Bentham that allows a single guard to observe all inmates without them knowing if they are being watched.

How does Foucault's concept of the Panopticon relate to modern society?

It illustrates how surveillance and self-discipline operate in contemporary life, leading individuals to conform to societal norms.

What is generalization in the context of social theory?

The tendency to label entire groups with fixed roles and predictable outcomes, oversimplifying complex social dynamics.

What does reductionism mean in social theory?

Explaining complex social phenomena through a single theoretical lens, which can overlook important nuances.

What was Karl Marx's view on history?

He theorized that history progresses through material needs and class struggles rather than ideas.

What is the difference between Marx's and Weber's views on law?

Marx emphasized materialist class conflict, while Weber focused on rational-legal stability and bureaucracy.

What is the role of discretion in law enforcement?

Police have the discretion to decide whether to arrest individuals, even when evidence is present.

How has the law historically controlled women?

Through laws related to domestic abuse, incest, and societal expectations of family structure.

What did Enlightenment thinkers contribute to modern society?

They established principles of reason that shaped contemporary legal and economic institutions.

What is the significance of the term 'coercive order' in Weber's analysis?

It refers to the law's role in maintaining social order through authority and compliance.

What does it mean for law to be a tool wielded by elites?

It suggests that those in power use the law to maintain their status and control over others.

What is the relationship between crime and enforcement?

Crime is widespread, and enforcement decisions are often discretionary, impacting who gets arrested.

How did the Enlightenment shift views on public executions?

Public executions were seen as barbaric, leading to their replacement with imprisonment.

What is the main argument of Foucault's 'Discipline and Punish'?

It critiques the ways in which modern societies exert control over individuals through surveillance and discipline.

What is the focus of Marxist theory?

Understanding societal conflict through the lens of class relations and struggles.

What did Weber believe about capitalism and law?

He argued that predictability and rationality in law are essential for the stability and growth of capitalism.

What is the significance of the term 'social control' in legal contexts?

It refers to the mechanisms, strategies, and institutions that societies use to regulate individual behavior.

What does the term 'bourgeois' refer to in Marxist theory?

The capitalist class who own the means of production and exploit the working class.

What is Weber's definition of law?

An order that is externally guaranteed by the probability of coercion to ensure conformity or punishment.

What are the two core elements of law according to Weber?

Formality (logic and legal rules/procedures) and Rationality (The same requirements for one decision to apply to all decisions of similar instance)

What does 'formality' refer to in Weber's legal theory?

Legal rules and procedures that are self-contained within the system, operating independently of external forces.

What is 'rationality' in the context of law?

The requirement that identical cases receive identical decisions, essential for justice and economic stability.

How does Weber describe the relationship between law and capitalism?

Law provides the predictability needed for capitalist transactions, while capitalism requires stable legal frameworks.

What role does bureaucracy play in Weber's view of capitalism?

Bureaucracy provides precision, reliability, and efficiency necessary for large-scale economic activity.

What is the significance of legal rationality in capitalism?

It reinforces capitalist calculation, ensuring that economic activities are predictable and reliable.

How does Weber contrast law with custom in economic contexts?

Legal norms must evolve with economic pace, as custom alone is insufficient for complex markets.

What is Weber's view on social control through law?

Individuals internalize norms, acting voluntarily in a predictable way, rather than merely out of fear.

What are the core differences between Weber and Marx regarding capitalism?

Marx focuses on materialist exploitation and class conflict, while Weber emphasizes stability and bureaucratic expansion.

What is the future outlook according to Marx?

Revolutionary overthrow leading to proletarian emancipation.

What does Weber mean by 'iron cages'?

The growth of office bureaucracy that limits personal freedom. (focuses on benefit of elites over creativity and freedom of individual)

What critiques exist regarding Weber's perspective on capitalism?

Critics argue he presents a static view, overemphasizes rationality, and neglects power relations.

Who are some key Enlightenment thinkers that influenced Western society?

John Locke, Baron de Montesquieu, Cesare Beccaria, Jean-Jacques Rousseau, and Adam Smith.

What was John Locke's main contribution to political thought?

Advocated natural rights and the right of revolution against monarchy.

What did Montesquieu propose?

The separation of church and state.

What is Cesare Beccaria known for?

Arguing that punishments must fit the crime and opposing cruel punishments.

What concept did Rousseau introduce?

The 'general will' (collective will of the people) guiding lawmaking and the social contract.

What does Adam Smith's 'invisible hand' refer to?

The market's self-regulating nature urges minimal state interference. (People will do things to benefit society indirectly through their own self-interest)

What historical transition does Foucault discuss regarding punishment?

The shift from public executions to private, institutionalized punishment.

What is the Panopticon and its intended benefits?

A prison design that induces self-discipline by making prisoners feel they are always being watched.

How does Foucault relate panopticism (circular prison with tower in the middle) to contemporary society?

Modern surveillance mechanisms internalize power, leading individuals to conform due to the possibility of being watched.

What are common critiques of panopticism?

Over-generalization and the need for empirical grounding in this social theory.

What is the importance of balancing theory and evidence in social theory?

To ensure that theories are grounded in concrete evidence and do not become overly generalized.

Constitution

The fundamental law of a given country outlines the structure of government and its power.

British North America Act and Constitution Act

Made in 1867 and 1982.

Section 241 b

Aiding or abetting a person in committing suicide commits an indictable (liable to be charged with a crime) offence.

Specific and General Deterrence

Specific: Deterring an individual from committing future crimes.

General: Deterring the public from committing future crimes.

Actus Reus

Guilty act.

Mens Rea

Guilty intent.

Motive vs Intent

Motive: Reasoning for the act.

Intent: Mental state of an intentional act.

Types of Offenses

Summary: Less serious crimes.

Indictable: More serious, often with procedures.

Hybrid: Can be tried either way based on the election of the prosecutor.

True Crime and Regular Crime

True: Inherently wrong both legally and morally.

Regular: Normal actions, but caused a poor outcome (driving without care).

Two Types of Incomplete Offences

Attempt: Wanting to commit an offence, planning, but not being able to carry it out.

Conspiracy: The agreement to commit an offence between 2 or more people.

Parties to an Offence

Principal Offender: Person who carried out the wrongful act.

Aiding and Abetting Principal Offender: Individuals who helped the offender.

Counselling Principal Offender: Individuals who encourage the offence to be done, regardless of how it turns out.

Accessory After The Fact: Knowingly helping the offender after the act. (They must be aware that they committed the offence).

Forms of Defence

Self Defence: A person's life on the line, requiring them to use force.

Defence of Property: Justified in using force to defend their property.

NCR

A person will not be held responsible if they had a mental disorder that makes them incapable of comprehending their actions or if they are unaware that their actions were wrong.

Forms of discharge (what happens to a person if they are NCR)

Absolute: Released back into the community without conditions

Conditional: Released on conditions

Confinement to treatment facility: Put into a facility to help them due to their mental state.

Automatism

Situation where a person is in a state of impaired consciousness and as a result has no voluntary control over their actions

Two Types of Automatism

Caused by a mental disorder or produced by non-mental disorder conditions

Provocation

Only applies to the charge of murder (partial defence), if the successful charge is dropped down to manslaughter (murder without malice).

Duress

A person being forced by someone else to commit an offense

Two Versions of Duress

Both involve a person under threat of death or serious bodily harm but they differ

Statutory: Invoked by principal offender and cannot be used in relation to 22 offences (murder, sexual assault, robbery etc)

Common Law: Invoked by principal offender AND/OR parties to an offence, can be invoked in relation to any offence

Necessity

Refers to situations where a person is forced to commit a crime. (The accused is forced by an emergency circumstance)

Mistake of Fact

Where an individual was mistaken about the circumstances at hand and had no reason to believe they were committing an offence.

Consent

Permission to do something (lack of consent to an action results in punishment)

Intoxication

A combination of common law rules

Involving violence or threat of violence, self-induced intoxication cannot be a defence

Sentencing

When the accused is found or pleads guilty, a sentencing hearing follows, where a judge determines what sentence should be imposed

Absolute or Conditional Discharge: A person leaves without a conviction and allows for release with or without conditions

Imprisonment: Usually reserved for more serious crimes

Conditional Sentence: A form of imprisonment that is served in a community under conditions that may include house arrest

Fine: Payment of sorts to the city as punishment

Restitution: Intends to compensate the victim for injury

Natural Law

Focuses on consistency of laws with higher moral values (murder is bad because life is sacred).

Positivism

Whether a proper authority enacted a law and whether a prescribed procedure was followed. (focused on internal logic)

Legal Realism

Focused on judicial decision-making (the judge decides the law with their discretion, free to do as they please)

Critical Legal Studies

Law is not neutral but is intertwined in social, political, and economic power used to keep the interests of the dominant groups.

Critical Race Theory

Law is not neutral but rather a force capable of excluding and subjugating certain populations.

Feminist Theory

Focuses on the position of women in society and exposes male dominated nature as well as the male-centered rules.

Legal Pluralism

Acknowledges the existence of multiple legal regimes at the same time in the same space, produced by various actors.

Bloody Code

Laws that imposed the death penalty on over 200 offences.

Hay's Perspective on Law

Maintain social hierarchy, support the interests of the ruling class and legitimize their power and preserve property rights. A means of control over the working and lower classes.

What did the elite often do to those on death row

Pardon them and give the perception of being powerful but also benevolent to increase their loyalty from the lower classes. (Unfair, biased towards the elite and property owners, used as a tool to punish the lower class)

Agamben perspective on government

Government is becoming more controlling, state of exception is becoming permanent, citizens are being controlled and watched, believes there should be no state to allow for freedom.

Destitute Power

The ability to undo or render inoperative existing systems of authority without replacing them with new ones.