law 101 final

Marx view of law

• Does not believe in law being able to generate social change 

• Law reflection of material conditions in society 

• Law lacks autonomous power

  • In common with Libertarians

Pashukanis view of law (marxist)

• Most important marxist legal theorist 

• Believes law will become unnecessary under socialism 

• Coercion mediated by law, in socialism coercion would remain but no check

• Social revolution then legal revolution 

• Law becomes irrelevant to generate its own social change

Western Marxism view of law

• lead by Gramsci

• Goal to make socialism compatible with forms of western social democracy 

• Diverts from typical thoughts on marxism, disagrees that only thing that matters is ones class

  • Believes culture must be considered as well

• Notices that class traitors vote against class due to other factors in their identity 

• Class extremely important but many other important things to consider 

• Explains why important issues shift so frequently 

• Law is another open battleground; law relevant for social change 

• Emphasizes law’s role in giving consent for social change, mirrors struggle of people

Ducan Kennedy (modern marxist) view of law

• Legal reasoning and law has power

• Evidenced by how much powerful stakeholders care about it

• Legal reasoning creates stabilization in capitalism and believes it has the power to destabilize it 

• Law enables reformist social change while limiting radical changes 

• You can make some social change through law but it is still protected

Central libertarian view of law

• lead by Hyek

• Law evolved order, not assigned instrument 

• Distinction between law and legislation 

  • Law general abstract evolved rules 

  • Legislation top down commands 

• Legislation reflects the social role law represents 

• Law should be an automatic reflection of what is happening between people 

• Not the place of the state to determine social roles 

• SNatural rights libertarianisttates it as cautionary tale while marxist views law as inevitable evil

• Marx describes law being irrelevant while Hayek argues law should be irrelevant

Natural rights libertarian view of law

• Lead by Nosek

• Law only justified if protects and prevents attempts of affecting natural rights 

• Once social norms established spontaneously, outliers attempting to make aggressive change individually should be controlled 

• Law beyond minimal state is dangerous

Libertarian Legal Theory

• Law and social change understood through 

  • Law primarily constraining, not able to improve conditions 

  • Bottom up change, not top down reform 

  • General abstract rules, not specific legislation 

  • Should facilitate change, not direct it 

  • Legal attempts at social change are morally suspicious

• Theorists 

  • Richard Epstain 

    • Constitutional and private law should preserve baseline of entitlements 

    • Any attempts to regulate or redistribute is viewed skeptically 

    • Not very consistent in libertarianism 

    • Spontaneous order should work without having to rely on governmental change

  • Rodney Barnett 

    • Law grounded in natural rights and consent 

    • Social change through legal form only permissible if restoring liberty 

    • Law should aim to limit state power

Liberal view of law

• Relationship between law and social change understood as a legitimate and central instrument for structuring and sometimes advancing social change 

  • Should be done through proper legal channels 

• Several commitments shared 

  • Relative autonomy from economics and social change 

  • Legitimate when substantively justified 

  • Rights constrain and enable change, possibly at once

  • Institutions and procedures central, must be able to publicly justify social change 

• John Rawls

  • Social change legitimate when improves position of least advantaged 

• Jürgen Habermas 

  • Social change legitimate when produced through proper institutions and procedures 

  • Enables social change

Empirical Studies of Law Reading Notes

• key argument to move Away from Theory

  • Legal scholarship is shifting away from theoretical models based on rule compliance and toward descriptive and normative accounts rooted in the actual decision-making processes of real people

  • = New Legal Realism

    • law in action, data driven approach analyzing if law is making intended political change

• Law is a dual force: it can be a tool to resist oppression and constitute justice, but it can also be a defender of the status quo that instantiates inequality

• Systematic framework for law research

  • input= activation and mobilization of law

    • Bargaining in shadow of law; threats in conference room

    • Economic development; building own power

    • Policy and advocacy

  • output= measuring actual societal reform

  • Goal to unify disparate scholarly threads into a cohesive understanding of the law's transformative potential

• Approaches

  • Top-down approach driven by lawyers

    • Law more protagonist role, guides the movement 

  • Bottom-up approach driven by grass roots organizations 

    • Law responds to force of social change

What Democracy Is. . . and Is Not

• defines democracy

  • Modern political democracy is a system of governance in which rulers are held accountable for their actions in the public realm by citizens, acting indirectly through the competition and cooperation of their elected representative

    • To work properly, the ensemble must be institutionalized, that is to say, the various patterns must be habitually known, practiced, and accepted by most, if not all, actors

  • public realm encompasses the making of collective norms and choices that are binding on the society and backed by state coercion

• Procedures that Make Democracies Possible

  • 7 typical principals + last 2 from this author

    • Control

    • Frequent and fair elections

    • Almost all adults have right to vote

    • Almost all adults able to run for office

    • Expression without severe punishment 

    • Able to seek out alt info

    • Independent citizens from organizations

    • Officials able to use power without overriding opposition from unelected officials 

    • Polity self governed

• What Democracy is NOT

  • not necessarily more efficient, agreeable, or orderly,

  • Democratization will not necessarily bring in its wake economic growth, social peace, administrative efficiency, political harmony, free markets, or the end of ideology. Least of all will it bring about the end of history

    • stand a better chance of eventually doing so than do autocracies

• Goal= emergence of peaceful competition in institutions

Procedural Democracy

• Proceduralism defines democracy as the very political process that it puts in motion; democracy’s normative value resides in the process’ unbeatable capacity to protect and promote equal political liberty

• Proceduralism insists equal liberty is the MOST important thing a democracy should strive for

  • Equal liberty implies not only the right to participate in politics via voting and freely expressing one’s mind but doing so under equal conditions of opportunity, which entails protecting civil, political, and basic social rights with the aim of ensuring a meaningful equal participation

• Comparisons 

  • Compared to epistemic stance → proceduralism = democracy NOT evaluated based on the truth/correctness of outcomes, but based on its fair procedure that ensures equal liberty

  • Compared to populism → populism denies disagreement, while proceduralism recognizes it/make dissent central to social relations, sees it as inherent within democracy, and expect politics and procedures to reflect dissent meaningfully 

  • Compared to minimalist concepts - proceduralism imposes normative standards for democracy that is MORE than just overcoming violence within society (?) + believe disagreement is a necessary process to ensure freedom

• critics of proceduralism

  • procedural democracy theory is marginalized within the think tank

  • evaluates democracy based on the morals of participants (aka participants should be smart/rational) and the quality of outcomes → less and less on procedural

    • Rationally motivated consensus + quality outcomes + freedom of discussion → deliberative democracy

    • BUT procedural democracy arguing for the same goal as deliberative democracy via its dedication to equal liberty 

    • Differences: deliberative democracy - need an ideal situation for discussing and reaching consensus >< procedural democracy

      • don’t need to be ideal due to various reasons AND reaching consensus can be achieved via voting when there’s deep disagreement BUT then deliberative democracy recognizes that yeah life isn’t ideal, discussion via non ideal situation is fine too 

  • ⇒ deliberative democracy and procedural democracy ARE compatible → procedural democracy just got mischaracterized and therefore neglected in the 20th century  

• Procedural approach is also most adequate because it does not demand from democracy anything other than the protection of equal freedom

  • Low bar lol 

  • Prevent critiques on far-reaching promises that are often left unfulfilled

• best because

  • For them, the democratic procedure is the best form of collective decision making, above all, because of its potential for expanding and strengthening political freedom, so as to assure it equally to all those concerned

    • Majority rule maximizes freedom because it chooses decisions that satisfy the opinions of the greater number of participants, while offering those who disagree the easiest path to change those decisions and providing power-limitation mechanisms that protect them in the meantime. Under this view, political minorities are crucial actors, not mere subjects of lawmaking. 

  • inherently liberal and egalitarian; its foundational value and guiding principle is equal liberty

  • minimalist in the sense that it refers only to the procedure and not the outcomes it may achieve; the only relevant traits of these outcomes are their compliance with procedural rules.

  • BASICALLY emphasize how necessary it is to have equal liberty 

    • Liberty is made possible through equality in political rights, which entails the right to participate through voicing opinions and organizing to make them effective, and a basic equality of opportunities that can make that participation matter evenly

  • Democracy - tool for power constrainment via Equal distribution of political power 

  • Peace pivot not only to liberty but also equality

Epistemic democracy

• democracy used as a truth-seeking tool ⇒ make correct decisions

• critique on procedural

  • Epistemic democracy critiques proceduralism by saying proceduralism value the protection of equal liberty OVER the correctness of outcomes

• Critiques

  • CRITIQUE of Epistemic 1st prong: truth-seeking/wise people rule

    • democracy emerges as a tool for everyone to participate, not to ensure correct outcomes → the point is NOT having experts voting, is to ensure all have the equality to vote and participate in law making

    • rooted in assumptions

  • CRITIQUE of Epistemic 2nd prong: judge quality outcome based on independent standard

    • Inherently incompatible with democracy → the reason why people follow rules is because they are guaranteed a procedural process that ideally would product the correct/majority opinion

Democracy as Populism

• Populism = MOBILIZING ability + unite a mass under a charismatic leader

• suspicious of electoral representation and the multiparty system

• MAIN DIFFERENCE from proecduralism

  • Procedural democracy treats elections and parties as the essential mechanism through which the people govern

  • Populism treats those mechanisms as secondary or even dispensable, because legitimacy is thought to come directly from the people themselves

    • Representative institutions lack independent justification because they stand between the people and power

    • Populism seeks to collapse sovereignty and government into a unified expression of the people’s will

• Populism is INCOMPATIBLE with procedural democracy because it disregards the rules of the game in the name of the mythical the people 

• Populism - need a charismatic leader to unite the voice of the people (and ignore/stigmatize those with opposing opinions/conflicts)

  • Here, representation means adherence to the leader NOT legal representation of citizens 

  • BUT disagreements will always exist → you can’t eliminate pluralism ⇒ the core of this idea is BS

• Can be dangerous - lead to power (who want to get into power quickly without waiting for elections) concentrated in the hands of the elite who wrongly promise the good of the power  

  • jeopardizing constitutional democracy without necessarily promoting the interests of the many.

Minimalist Democracy

• Membership as a social good

  • Membership in political community is primary social good

  • Socially constructed 

  • Political communities have always drawn boundaries and they distribute life chances

  • Membership determines who can claim justice → precondition for distributive justice 

• Rejects 

  • Cosmopolitan universalism 

    • Impossible to assume one cares as much about every person as one does people they know or care for 

  • Abstract individualism 

    • Collective self determination outweighs 

• Believes in importance social practices, humans social creatures 

  • Obligations to political community stronger

  • Identities matter

•  Community Examples 

  • Gentrification 

    • Rejected since it destroys the community built upon by the people being pushed out 

  • Affinity groups 

    • Self preservation prioritized 

    • People going against core purpose of group exclude 

  • Boundaries socially constructed 

    • Membership in group defined differently per person 

    • Rules fairly open

• Admission and Exclusion 

  • Political communities have a qualified moral right to control immigration, naturalization, and exclusion 

    • Not open-ended but not overly specific on individual basis

  • Moral limits on exclusion 

    • Refugees and asylum seekers 

      • Special moral obligations for admission

      • Component which is cosmopolitan and universalist 

  • Guest workers and long-term residents 

    • If profiting from someones continued entry through work or tax, must offer membership  

  • Internal exclusion 

    • Caste like systems, denying full membership when living under state authority morally indefensible 

    • Way in which the law creates internal exclusion 

      • Jim Crow laws

      • Public education 

        • Value based on class of neighborhood 

• Membership and Equality 

  • Justice requires full members be treated as equals 

    • Even if societies legitimately differentiate between members and nonmembers

  • Creating second-class or permanent quasi-members undermines the moral basis of political community 

  • Democratic legitimacy depends on aligning social membership with political voice

    • Membership in name not enough, must have influence over rules subjected to 

• Membership as First Sphere

  • Broader theory on complex equality 

    • Social good belongs in its own sphere and should be distributed according to its own social meaning 

    • Should not use power in one area for great advantage in other 

      • Ex. can be rich and buy lots of things but cannot use power to buy elections 

    • Each sphere should be independent from other

    • Membership is gatekeeping sphere

      • Injustice here contaminates all other distributions 

      • Domination begins when access to membership is used to monopolize power or resources across spheres 

• Liberal Communitarianism 

  • Defends bounded political communities and right to exclude 

  • Rejects closed, ethnically pure, or permanently hierarchical membership regimes 

  • Justice requires membership rules reflect shared meanings, historical responsibility, and democratic equality

Members and Strangers view of Community

• Membership as a social good

  • Membership in political community is primary social good

  • Socially constructed 

  • Political communities have always drawn boundaries and they distribute life chances

  • Membership determines who can claim justice → precondition for distributive justice 

• Rejects 

  • Cosmopolitan universalism 

    • Impossible to assume one cares as much about every person as one does people they know or care for 

  • Abstract individualism 

    • Collective self determination outweighs 

• Believes in importance social practices, humans social creatures 

  • Obligations to political community stronger

  • Identities matter

• Boundaries socially constructed 

  • Membership in group defined differently per person 

  • Rules fairly open

• Admission and Exclusion 

  • Political communities have a qualified moral right to control immigration, naturalization, and exclusion 

    • Not open-ended but not overly specific on individual basis

  • Moral limits on exclusion 

    • Refugees and asylum seekers 

      • Special moral obligations for admission

      • Component which is cosmopolitan and universalist 

  • Guest workers and long-term residents 

    • If profiting from someones continued entry through work or tax, must offer membership  

  • Internal exclusion 

    • Caste like systems, denying full membership when living under state authority morally indefensible 

    • Way in which the law creates internal exclusion 

      • Jim Crow laws

      • Public education 

        • Value based on class of neighborhood 

• Membership and Equality 

  • Justice requires full members be treated as equals 

    • Even if societies legitimately differentiate between members and nonmembers

  • Creating second-class or permanent quasi-members undermines the moral basis of political community 

  • Democratic legitimacy depends on aligning social membership with political voice

    • Membership in name not enough, must have influence over rules subjected to 

• Membership as First Sphere

  • Broader theory on complex equality 

    • Social good belongs in its own sphere and should be distributed according to its own social meaning 

    • Should not use power in one area for great advantage in other 

      • Ex. can be rich and buy lots of things but cannot use power to buy elections 

    • Each sphere should be independent from other

    • Membership is gatekeeping sphere

      • Injustice here contaminates all other distributions 

      • Domination begins when access to membership is used to monopolize power or resources across spheres 

Imagined Communities

• Nations are imagined communities 

  • Nations exist since people imagine themselves as part of shared collective 

  • Imagined bond produces sense of connection and solidarity which feels real and meaningful 

  • Boosts sense of belonging 

  • Does not resolve what is the problem with it being it fake

• Colonial bureaucracies help produce national identities 

• Nationalism culturally powerful but politically flexible 

• Modular spread of nationalism 

  • Basic starter pack for nation states 

  • Indoctrination vs. Education

• Emotional depth of national belonging

Justice and Politics of Difference (Young)

• Social groups not same aggregates vs. associations

  • Aggregates- choice in social group

  • Association- happen to be in same social group, lacks choice

• Social groups= particular sense of history, affinity, and separateness, even the person’s mode of reasoning, evaluating, and expressing feeling 

• Face-to-face relations vs. mediated relations 

  • More mediated interactions in modern day 

  • Still interacting with people even without face-to-face

    • Make assumptions based on social grouping 

• Argues cannot pretend social groups do not exist since the differences are real

• Young presents theory as rejection of liberalism and communitarianism 

• Liberal impartiality is incapable of acknowledging group difference 

  • Demands us to adopt impartiality to deliberate on justice 

    • Commands detached and objective 

  • Eliminates emotion from deliberation 

    • Young argues emotion justified and necessary 

  • Aims for a consensus of justice that everyone should agree on 

    • Young argues this is impossible 

• Rejection of the ideal community 

  • Desire for unity and mutual understanding can repress difference among the social group 

  • Communities have to interact with other communities and those relations 

• Politics of Difference 

  • Relationship of strangers who do not understand one another in subjective and immediate sense who relate across time and distance 

    • But still capable of living together under conditions of justice 

    • Easier for law to say treat everyone equally than affirmative action 

      • Would have to legally recognize different social groups 

  • Differences are publicly recognized and acknowledged as irreducible 

    • Dominated and oppressed should have specific voice in diverse public 

• Discourse Rights for Groups 

  • Relevance of subgroups 

    • Deciding which voices within groups receive representation and deference 

    • Smallest minority on earth is the individual 

    • Young struggles to address when the narrowing down becomes redundant and individualistic 

  • For social groups to be considered as political subjects need definition and protection; preventing flexibility 

• Mediation, Group Representation, and Public Perspective 

  • Socioeconomic mediation problem 

  • Cosmopolitan turn and its tension

  • Need for universal rules despite anti-essentialism 

    • Argues nothing universal while also calling for universal rules → contradicting 

    • Views democracy as tool to manage difference

      • But can only handle so much difference 

Nationalism and Global Federalism

• Neutral rules not = to neutral outcomes 

  • Applying same rule to people who are different gives different outcomes per group

  • Formal equality can reproduce inequality 

  • Neutral standards reflect majority standards 

• Social groups and relational difference 

  • Young argues groups are fluid and changing, anti-essentialist

    • Essentialism- built in unchangeable characteristics 

  • Argues not all members share same traits or characteristics 

  • Democracy manages differences, institution job to determine rules of coexistence within diversity 

• Group autonomy and voice 

  • Groups should have ability to preserve level of autonomy 

  • Marginalized groups need separate space to develop own perspective 

  • Ex. tribal self-governance, affinity based bar associations 

  • Without protection of voices they will be captured and disintegrated 

• Anti-essentialism vs nationalism debate 

  • Young views nationalism as a way to dissolve opposition through force 

    • Oppression and domination 

    • Argues nationalism is inherently essentialist, lacks fluidity 

  • But national sovereignty does not have to be essentialist 

    • Polycentric nationalism

• Global democracy; local autonomy + global regulation

  • Goal for Young 

  • Equally valuable democratic societies; global federalism 

  • International version of federalism

• Non-domination vs. sovereignty 

  • Sovereignty argued to be only way to protect self from external domination 

  • Does not acknowledge internal conflict, nationalism creating pressure on inside according to Young 

  • Young may be more accepting of a nationalism based on externalized nationalism, not wanting a country to be dominating of self 

    • Friendly competition welcome 

    • Domination not welcome 

  • Who is enemy of nation? Internal or external? 

• Polycentric nationalism as alternative 

  • Polycentric nationalism- identity built through same struggle

Peace and Conflict

• Peace as Absence of Violence

  • Peace = absence of violence 

  • Violence = gap between actual and potential

  • Avoidable suffering 

    • Unavoitable - for Gultung that is NOT violence

      • ex. Earthquake

    • Avoidable - violence → but standard for avoidable is constantly evolving 

      • TB - unavailable then but can be avoidable now 

  • The law has to CHOOSE what kind of violence they protect or not 

    • Certain of freedom/suffering that the law is allowing

      • You can’t ban people drinking Coke Zero but you can ban hard drug because it’s more detrimental

      • We allow cars for economic efficiency (getting to work faster for example) WHILE KNOWING THAT people will die if cars are allowed. 

        • The law is just saying you need to suck it. It does value economy more than life    

    • Galtung: There are certain things we are sacrificing but we DON’T realize because our definition of violence is so narrow

• Personal vs. Structural violence – Galtung is bringing to the table 

  • Personal (direct) violence

    • There is an identifiable actor 

  • Structural violence (indirect) violence 

    • No identifiable actor

    • Social injustice 

    • Agency and system

      • If no one is responsible - it’s harder for the law to do something 

    • You care FIRST about whether the suffering is happening THEN you care about who is responsible 

      • Law think about violence is something actionable

        • If you can’t ask someone to be responsible for it – law is irrelevant 

    • Hard to See

      • normalized

        • Also it’s not as newsworthy as personal violence → the news emphasises dramatic cases rather than critique of the system 

      • It appears natural

      • It is sable

      • NOWADAYS problem: everything is presented as violence → makes people so unsanitized that nothing is violence anymore 

        • Once we recognize structural violence, we start seeing EVERYTHING through structural violence → is it really the case that everything is from racism, xenophobia

    • Mechanisms

      • Inequality

      • Wealth transforms to political influence, legal interest, and media influence → overlap between different types of power

6 dimensions of Violence

• Physical vs. psychological 

• Negative vs. positive influence 

  • Negative peace – absence of direct violence

  • Positive peace

    • Absence of structural violence 

    • Presence of justice

    • MLK It’s not the absence of conflict, it’s the presence of justice

• With or without object

• Personal vs. structural 

• Intended vs. unintended 

  • Intent vs. outcome – Galtung cares more about outcome than intent because structural violence is about outcome, not the intent – shifting from the perpetrator to the victim

• Manifest vs. latent 

  • Manifest - observable 

  • Latent - there in the system but not fully triggered → goes under the radar easily

  • Why should we treat this differently

  • Policymakers are often victims of news cycle

    • Putting down fire but not wondering why we have fire every year 

    • What’s urgent vs. what’s important → the law always making this decision 

      • If you have 100k, how much go into putting out the fire that’s happening right now, how much go into preventative measures 

    • We all know that if we more money to preventive medicine, less burden on the ER/urgency

    • Should we consider manifest vs. latent violence the same? Why and why not?

Why do people accept legal decisions

• Immediate and long term compliance 

  • Immediate- Compliance in front of authority 

  • Long term- Continued law abiding behavior after authority leave 

  • Authorities seek voluntary buy-in, not mere acquiescence 

  • Procedural justice predicts both short-term and long-term compliance 

• Instrumental rational accounts 

  • Risk/Deterrence model

    • Certainty and severity of punishment 

      • Certainty matters more than severity 

      • Certainty more difficult to increase 

        • Severity can be changed through law 

        • Certainty has to be revamped to increase; reform

    • Effects generally small

      • → Legal system unable to rely on alone

      • Enforcement limited 

        • Financial and political costly 

  • Outcome Favorability / Distributive Justice 

    • People prefer favorable outcomes 

      • People willing to lose, they just want to lose fair

    • But outcome fairness is not primary driver 

• What builds legitimacy 

  • Procedural justice judgements 

  • Trust in authority motives 

  • Fair exercise of discretion 

  • Rooted in perceived fairness of procedures and not primarily in performance or sanction threat

Procedural Justice Model 

• People defer when procedures are perceived as fair 

• Procedural justice > Outcome favorability in predicting acceptance 

• Fairness judgements drive:

  • Decision acceptance 

  • Satisfaction with authorities 

  • Long-term law-abiding behavior 

• No amount of coercive capacity able to replace legitimacy of procedure 

  • Definition of legitimacy varies per nation

• Core Procedural Elements 

  • Quality of Decision Making

    • Neutrality, objectivity, rule-based decision processes 

  • Quality of Interpersonal Treatment 

    • Dignity, respect, acknowledgement of rights 

  • Participation/Voice 

    • Opportunity to state one’s perspective

    • Indirectly strengthens fairness perceptions 

    • ex. American jury trials

• Effective rule of law depends on 

  • Process-based regulation 

  • Attention to fairness in daily authority exercise 

  • Style of policing and adjudication not just substance