Test 2

why is looking at interdisciplinary theories important?

they address questions about law by looking at its practices and relationships to other social forms of control

what does jurisprudence look at?

it looks at questions about meaning, purpose and definition of law

Jurisprudence adopts what kinds of approach and why?

internal, because it looks at internal qualities of law

what are the differences between traditional and contemporary law?

a formal legal system is not always necessary, and some communities can organize themselves without one

typically smaller communities work with a ___ legal system, while larger communities work better with a ___ legal system

informal

formal

what are the three types of legal systems discussed by roscoe pound?

traditional, transitional, and modern

what are the qualities of a traditional legal system?

* pairs best with traditional society
* tend to rely on kin leaders, elders, etc.
* most of their rules are unwritten and rely on norms
* law functions for the same reasons as any other societies

what is an example of a traditional legal system?

indigenous legal order

(oral stories are used to resolve conflict, create safety, make group decisions, etc)

what are the qualities of a transitional legal system?

* found where economic, political and educational systems differentiate from kin relationships


* holds most features of a modern legal system, becomes differentiated from customs and tradition
* public and private law become pronounced
* criminal law becomes differentiated from torts
* substantive becomes differentiated from procedural
* written court proceedings become more common
* police roles begin to emerge and separate into categories

what are the qualities of a modern legal system?

* has same rules applicable to everyone
* application is predictable and impersonal
* based on written rules
* rational and run by professionals
* it is amendable, clean separation of power

what are 3 jurisprudential streams of law?

1. natural law
2. legal positivism
3. rights and justice

the idea of natural law is based on the assumption that

human nature can be known through reason, which provides social order

what are the qualities of natural law?

* natural law is seen as superior to enact law
* needs to be connected to mortality
* laws that don’t follow the principles of natural law (ie human nature) are seen as unjust

what are the issues with natural law?

1. relationships between law and mortality are not always identical (ie mortality always deals with right and wrong, law does not)
2. moral judgement can often be vague, law is not (may be useful when looking at general issues, but not specific cases)
3. difficult to define which morals are universal vs which are cultural (morals are uncertain, law is objective)

what are the qualities of legal positivism?

* clear distinction between law and morality
* looks at the objective duty of law

what is the main belief of legal positivism?

laws are not propositions of morality, but legit rules that are successful when followed and obeyed

what did jeremy bentham (gather of legal positivism) believe?

* he believed in the objective effectiveness of laws
* he did not trust judges (he believed they shaped laws with personal consideration)
* he preferred laws created by the parliament

what did a.v. dicey believe?

* governments should act on constituted and enacted laws and not arbitrary decisions
* all decisions must be justified by legal authority
* nobody is above the law, and the law is about equality in action

what are the issues with legal positivism?

* with legal positivism’s belief in pure objectiveness, question about whether true justice was met can appear
* when justices is believed to have not been met, it can be met with heavy criticism (eg. law cannot be blindly applied without a sense of justice)

what did h.l.a. hart believe?

* he believes people gave a critical view of the law
* he laid out a hierarchy of key qualities found in “valid laws” (internal and external)
* he believed in laws with higher order, that could make changes to other laws
* he argued the law could be put together with the principles of fairness and justice, which would allow for a fully rational assessment and have no need for morality to be considered

what are the external qualities of law?

the effects of an individuals behaviour, in relation to how they believe they should behave

what are the internal qualities of law?

qualities that reflect how an individual believes they should act, but not how they actually behave

what is an example of internal and external qualities of law?

in the uk, driving on the left is a custom, not a law

* external quality – people generally drive on the left
* internal quality – people drive on the left out of habit and conviction that **they feel** like they need to

what is a legal system?

constituted rules that are organized and formalized

what are rules of recognition?

rules accepted by political and legal actors, and can be used to decide whether a law has been properly enacted or not

what does ronald dworkin believe?

* rejects the idea of separating the “is” and “ought” of legal positivism
* agrees with the idea of legal positivism for “most cases”
* believes that harder cases need to use “standards” and not “rules” (ie policies, ideas of fairness, ideas of morality)
* believes judges cannot be 100% trusted (they are also human, meaning they have their own sense of morality and values)

when dealing with a legal issue, if you go straight to cases and statues for answers, this is an example of…

traditional legal positivism

when dealing with a legal issue, and weigh all your options and consider what you believe to be justice, this is an example of…

viewing law as more than just a set of rules

what do interdisciplinary concepts of law look at?

* looks at the relationship to social interaction
* looks at actual practices of legal systems and how it affects everyday life
* steps outside the “inner view” of the law
* can look at jurisprudence through perspective of other fields

why is it important to look at interdisciplinary concepts of law?

most of lawyers work happens outside of the courtroom (which means its good to look at how law effects everyday life)

what did emile durkheim believe in?

* drew distinctions between “primitive” and “advanced” societies
* believed values are shared and conflicts are superficial

what is a primitive society?

common goals of keeping itself together are acknowledged through moral and legal codes

* uses recessive laws to punish offenders and reinforce the boundaries between acceptable and unacceptable

what is an advanced society?

where there is a complex economy of specialized production and divided labour

* uses regulatory laws to distinguish criminal and civil laws

what did karl marx believe?

* studied “conflict” interpretation of law
* conflict reveals true nature of society
* view law as a form of dominance

what as karl marx theory of law?

1. law is a product of economic forces
2. it is a tool wielded by the upper class to maintain power
3. when communism is implemented, law will no longer be needed as a form of social control

what did max weber believe?

took a legal pluralist view of society

what were the two major differences in maw webers typology?

1. legal procedures are rational or irrational
2. legal procedures can occur rationally or irrationally, with respect to formal and informal law (essentially, decisions are expected to be based on logical reasoning based on facts and circumstance of a particular situation)

what does legal realism criticize?

it criticizes scholars for minimizing law down to a set of rules

what are some examples of gaps between law-on-the-book and law-in-action?

* restricted parking (difficult to enforce all the time)
* academic dishonesty (prohibited by university but people still do it)
* underage drinking
* speed limits

what does legal realism look at?

* judges are responsible for formulating laws
* judges make decisions based on their conceptions of justice before they look at the formal
* belief that the focus should be the study of “law in action” as opposed to law as it is “found in the books”

what does law on the books refer to?

rules and norms

what does law in action refer to?

refers to a decision or action made by people, where law or legal consequence may have an effect on how those decisions are made

what is street-level bureaucracy?

the decisions “street-level” frontline officials make essentially become the public policies they enforce

what are the qualities of street-level bureaucracy?

* their decisions, routines, and devices they invent to cope with uncertainties and work pressures become the law
* they create workday norms to cope with the uncertainties of their job and the pressures that come with it (they essentially become the policies they enforce)

what are some examples of street-level bureaucracy?

* racial profiling (black people are stopped by police more frequently, possibly because cops adopt social stereotypes)
* public services (service bureaucracies consistently favour some clients over others, despite official policies requiring equal treatment of everyone)

what does law-in-between refer to?

a moment in a larger process between the innovation of a law (adoption of statutes), and its actual implementation and behaviour (street-level bureaucracy)

how did police stations construct their own understanding of legal meaning?

* follow lead of other agencies
* look to state guidelines
* seek approval from national professional associations
* turn to the local community

what main issue is being addressed in the law-in-between article?

law enforcement agencies are caught in the middle, between lawmaking policies and the frontline officers who enforce these policies

what was the main issue discussed in “decoupling, gender injustice in china’s divorce courts”?

“no matter what, the first time you go to court in china for divorce, there’s no chance the judge will help you'“

* there is a gap between the laws and the actual help women receive from domestic violence cases (the judge wants to get through as much as work as possible, and only looks at domestic violence cases if they have appeared multiple times)

what is legal pluralism?

sally engle merry – the existence of more than one set of laws of legal practices in the same place at the same time

OR

val napoleon – the existence of multiple sources of non-state and state law within the same geographical area

(essentially an umbrella term for societies who have multiple methods of dispute resolution)

what are two related, but distinct, concepts of legal pluralism?

* juridicial legal pluralism: the recognition of “customary law” by state law of a particular group
* empirical legal pluralism: a situation where the behaviour of an actor is subject to more than one set of rules

why is legal pluralism important?

* within a society, many laws are occurring at the same time
* there is a strong diversity of laws in those bodies (different bodies of law may compliment or contradict each other)
* the concept can travel across many different disciplines

what are the three waves of legal pluralism?

1. classical legal pluralism
2. pluralism at home
3. global legal pluralism

what is classical legal pluralism?

* refers to research on colonial and post colonial societies (a legal system that exists with indigenous/customary laws)
* looks at how legal systems were transported to colonized territories and how that lead to multilayered legal systems

what are the contributions of classical legal pluralism?

1. analysis of the interaction between normative orders
2. attention to the elaboration of customary law as historically derived
3. demonstration of the dialectic between normative orders

what is legal pluralism at home?

* originally looked at the relation between colonizer and colonized
* however, it expanded to looking at relation of dominate and subordinate groups like religious, ethnic, cultural, immigrant groups, or other unofficial forms of order

what are the two main fields pluralism at home focuses on?

1. the diverse laws of subordinate groups in industrialized societies
2. unofficial forms of ordering located in social networks or institutions

what is global legal pluralism?

the movement, diffusion and expansion of trade, culture and consumption from a local level and with local implications, to levels and implications that are worldwide, or more usually, that transcend national borders in some way

what is the definition of state and non state law?

state law: lawyer’s law, official law

non-state law: folk law, indigenous law, customary law

what are the critiques of legal pluralism?

questions are raised about legal pluralism such as:

* can law be said to exist separately from the state?
* is it possible to define “law” in a purely empirical way?

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solution: legal pluralism exists whenever actors identify more than one source of “law” within a social arena

what are the 4 sections of geoffrey swenson’s non-oppressive form of legal pluralism?

1. comabitve
* state does not seek harmony but looks to destroy each other
2. competitive
* there is a deep tension between state and non-state orders, resulting in frequent clashes
* state law has overall authority
* there is some mutual autonomy
3. cooperative
* non-state holds significant amount of authority
* state and non-state are willing to work together
4. complementary
* state and non-state exist together, but under umbrella term of state authority

what are the 5 strategies that can form a relationship between state and non-state orders?

1. bridging
* cases are allocated to state or non-state depending on the state law, participant preference, etc
2. harmonization
* non-state legal outcomes stay consistent with state law values
3. incorporation
* distinction between state and non-state legal orders are eliminated
4. subsidization
* state legal orders eek to increase their capacity and appeal more to non-state legal orders
5. repression
* state law actively undermines or eliminates non-state legal order

what does it mean if a source is credible?

the information is high quality and trustworthy

why is it important to use a credible source?

using good sources increases credibility as a writer and improves arguments

what are the three main ways to tell if a source is credible?

1. authors expertise
* experience or advanced degree
2. authors point of view
* there may be some form of bias present in writing
3. publication date
* the data or information in an older article could be outdated

what does the c.r.a.p. test refer to?

currency

* is the book or article recent? (check publication date)

relevance

* is it relevant to the question you are looking to answer (need understanding of question to determine this)

authority

* who wrote it and can you trust it?

purpose

* why is the article being written?
* is it fact or opinion based?

what are monographs?

describes publications including books, reports or novels (can include edited chapters and compilations of essays)

what are serials?

serials have articles (includes journals, newspapers, and magazines)

what is a journal?

a scholarly publication related to a general area of research or discipline

what is the first wave of the feminist political movement?

* occurred from 1840s-1920s
* main focus: want society to recognize women as people and not property
* focused on voting and property right, access to education, and reproductive rights
* focuses mostly on movement of white women’s rights

what is the second wave of the feminist political movement?

* occurred from 1960s-1980s (in the us) (inspired by civil right and anti-war protests)
* main focus: it was looking to challenge women’s roles in society
* in canada, the movement looked at women’s role in the workplace, equal pay, violence against women, etc

what is the third wave of the feminist political movement?

* occurred in 1990s
* main focus: focused on other aspects of their identity (aka their individuality and rebellion through freely expressing their sexuality)
* also critiqued the “universal sisterhood” notion from second wave (they believed it took away from diverse experiences)
* this wave looked at anti-racism (due to critiques of past waves, this one was much more sensitive to race), anti-colonialism, anti-capitalism, and everything mentioned before

what is the fourth wave of the feminist political movement?

* has been occurring since 2010s
* main focus: this most recent, and most debated, wave of feminism deals with social media, special activism, and the internet
* builds on wave 3 to ask more difficult questions about empowerment
* this wave looks at justice for all women and sexual harassment and violence against women
* rejected all forms of identity politics (when a group bases their political agenda behind a, usually marginalized, identity)

what are the core principles of feminist theory?

* main goal: to understand gender from a critical and equality-driven perspective & to understand the nature of gender inequality


* it looks at themes such as discrimination, objectification, oppression, stereotyping, etc
* examines men and women’s social roles, interests, experiences, etc
* widely applicable to other areas of study such as anthropology, sociology, education, etc
* the theory does not stay stagnant, and changes over time and through different waves

how does feminist theory attempt to gain true gender equality and independence?

by dismantling traditional male-female power dynamics and gender norms, many of which are built into our laws and legal institutions

what is feminist epistemology?

* an examination of knowledge produced from a feminist standpoint (how gender influences understanding of knowledge)
* central idea is that knowledge is reflective of certain perspectives of the theory


* argues most of the knowledge recognized in academia has been made by men, and therefore, is biased by their experiences
* also argues that some theories discriminate against women, by excluding their inquiry and what they think

what is feminist empiricism?

* looks to prove feminist theories through scientific method
* believes in positivism and critiques mainstream research for its biases

what is postmodern feminism?

* looks to destabilize patriarchal norms in society that contribute to gender inequality
* argues that gender is not based on biology, but is created through society and culture
* embraces diversity between human perspective (rejects idea of complete objectivity)

what is feminist theory standpoint?

* argues their is a social perspective that is privileged (ie. white middle aged men of science)
* discusses that because women lives are vastly different from men's, they provide a unique knowledge perspective (Includes both white and Black women)
* most standpoints believe identities are organic and dynamic socially constructed "locations" within a historical context

what is a standpoint?

a standpoint is not just a perspective

a standpoint is earned via the experiencing of a collective political struggle. Everyone has a perspective, but a standpoint is achieved through struggle

* this means for every theoretical perspective, a standpoint needs to be specified

what is feminist legal theory?

* views that women have not been treated equally in the legal system compared to men


* focuses on bringing light to the discrimination face based on multiple intersecting identities

\

Themes include:

* Women's struggle for equality (argues law has precedents that cause inequalities)
* Male bias is present in every feature of the law
* The law is not as objective and blind as it claims to be (ie. not neutral to gender)

how does feminist legal theory differ from critical legal studies?

* critical legal theory began its life in elite law schools and draws significant inspiration from Marxism
* feminist legal theory emerged from large scale political movements and emerged from the point of view of the oppressed

what are the methodological approaches to feminist legal theory?

1. “the woman question"


1. asks why law fails to take experiences and values of women into account
2. feminist practical reasoning
* uses features not reflected within dominant structures (assumes women's reason process is different from means)
3. consciousness raising
* uses personal experiences with the system to determine its effectiveness, validity of its principles, and challenge dominant versions of the social construct

what is black feminist thought?

* collection of ideas, writings, and art from the standpoint of Black women
* a key feature of bft is that in order for social change to occur, both consciousness and transformation of economic and political theory must occur

what is intersectionality?

* refers to the different forms of oppression intersect and overlap
* argues there are systems of power that are simultaneous and overlap each other
* argues that due to unique perspectives and experience, oppression cannot be understood through one axis

what is black feminist standpoint theory?

* argues some forms of oppression are invisible to dominant groups because they never have experienced it
* argues that Black women offer a different perspective and can give suggestions to help other marginalized groups
* single standpoint off all women do not exist because of diverse experiences

what is black feminist criminology?

* focuses on incorporating understandings of interconnected identities, social forces, form policy regarding criminal behaviour and victimization among african americans etc
* looks at racism, classism, and sexism which restricts black women from adequate employment and education

what are 4 major concerns black feminist criminology take into account when distinguishing between black women and men?

* observes the social structural oppression of black women
* recognizes the black community and its unique culture
* looks at black intimate and familial relations
* looks at black women as individuals

what is indigenous feminist theories?

an intersectional approach that focuses on looking at decolonization, indigenous sovereignty, human rights of indigenous

how does indigenous feminism stray away from mainstream feminism?

* mainstream feminism does not pressing issues in the indigenous community (ie. missing or murdered indigenous women, forced sterilization, struggle for land rights)
* needed a stream of feminism that specifically addressed the effects of colonization


* mainstream feminism does not account for experience of indigenous women
* looks to empower culture and identity of indigenous women, mainstream does not

what are the differences and similarities between post colonial feminist theory and indigenous feminist theory?

similarities:

* its acknowledgement of the serious harmful consequences of colonization on indigenous people and their lands
* its focus on decolonization as the way to break down the oppressive systems that came from colonization

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differences:

* engages in decolonization instead of postcolonial theories (due to distrust of western paradigms)
* indigenous scholars argue "post-colonial" is often decided by western institutions (who are responsible for the colonization)

what are the origins of queer theory?

* it emerged in the 90s in response to 2nd wave of feminist theory
* had to use identity politics for their right advancements
* they were able to perpetuate certain binary identities (eg. male/female or gay/straight)

how did michel foucault influence queer theory?

* he viewed sexuality as a social construct (argued the body is not an objective identity that exists outside of culture)
* rejected sexuality as a purely biological idea (allowed for pathway of sexualities deemed "abnormal" to be explored)

what are queer theory’s core principles?

* looks to intentionally be disruptive and challenge "taken for granted" theories and boundaries placed on queer studies (essentially looks to challenge rigid and inherent categories)
* argues that there are no natural fundamental components behind identity
* believes sexuality is fluid and with endless possibilities (which then, reaches more people)

what themes are explored in queer theory?

1. heteronormativity - the notion that heterosexual desire is the "norm" and any other sexual identity is inferior or abnormal
2. challenging the binary categories of straight/gay or man/women (as used in fem and gay/lesbian political movements)
3. challenging essentialist views of sexuality and gender
4. gender and sexuality as a social construct

what are some notable areas in queer theory?

\
* no unifying "queer theory", but rather an area of theory where different perspectives can overlap


1. theory of performativity - gender and sexuality construction through unconscious action and language done daily
2. intersectionality and queer theory - uses intersectionality to expand reach of queer theory beyond identity and sexuality

what are some critiques of queer theory?

1. argued that it is too expansive with its possibilities (risks losing discrete identities that are able to help)
2. failed to analyze the influence of race (how colonial implications influence view of identity)
3. lack of credit given to non-white queer individuals
4. can fall short in validating trans scholars when discussing gender
5. the term "queer" can cause homogenization and erase important differences
6. the elimination of fixed identity can cause issues for those who rely on it for their survival
7. queer theory's desire to destabilize and eliminate fixed identities, and its focus on the destruction of binaries, are important for disrupting hegemonic discourse

what is the queer of colours critique?

* this is an intersectional framework, primarily grounded in black feminism
* seeks to challenge queer theory singular approach by analyzing how power dynamics effect lived experience of marginalized individuals
* challenged queer theorists to incorporate work of other marginalized identities

what is the quare studies theory?

* looks at how intersectionality of interlocked systems of oppressions reinforce certain inequalities
* brings queer theory back to a focus of lived experience and knowledge of individuals

what is trans studies theory?

* constructs framework of queer theory, but with lived experiences of trans people
* approaches knowledge in terms of materiality, to broadened approaches of being restricted to political or idea-based nature of discourse