Important Material for Class on Law and Social Change

Material Coverage:

• Class will focus on the relationship between law and social change.

• Students encouraged to review slides, take notes, and prepare for the quiz using the material provided.

Law as a Tool for Suppression and Justice:

• Discussion on how law can both oppress and seek justice, particularly in the context of Indigenous peoples in Canada and the impact of residential schools.

• Historical injustices such as broken treaties and the role of the Truth and Reconciliation Commission as mechanisms for addressing these issues.

Understanding Social Change:

• Social change leads us to ponder the nature and impact of law—why it changes and how those changes manifest.

• Three levels of interaction between law and society will be explored, including individual rights, collective rights, and new societal realities.

Key Theoretical Perspectives:

• Presenting Jeremy Bentham and Friedrich Karl von Savigny as contrasting figures in understanding law's relationship with society:

• Jeremy Bentham: Advocates for law as an instrument of social engineering. Effective reforms should be implemented through political and legislative action for societal improvement.

• Friedrich Karl von Savigny: Argues that law must arise from established customs and traditions of society. Legal change must be grounded in the cultural and historical context.

Concepts of Authority and Compliance:

• Max Weber's types of authority and how legitimacy is derived from traditions, charisma, and legal rationality.

• Exploration of why individuals tend to obey laws and social norms, referencing social experiments (Milgram & Asch) concerning conformity.

Legal Consciousness:

• Describes how legal consciousness is a product of individual experiences shaped by societal power dynamics and institutions.

• Emphasizes that legal consciousness can challenge laws and contribute to social evolution.

The Nature of Legal Change:

• Discusses the reactive and proactive nature of law, and how societal disruptions (e.g., technological advancements) necessitate legal reform.

• Importance of maintaining a balance between rapid societal change and the slow, deliberate nature of legal evolution to ensure fairness and predictability.

Impact of Technology on Law:

• New technologies create challenges for legal systems that must evolve to address issues such as privacy, cybersecurity, and compliance with laws.

• Legal institutions face mounting pressure to adapt and legislate effectively amid rapidly changing technological landscapes.

Charter Rights and Social Identity:

• The Canadian Charter of Rights and Freedoms has significantly shaped national identity and serves as a check on governmental power.

• Fundamental freedom, dignity, and the balance of individual vs. collective rights are crucial to understanding laws within Canada.

  Key sections include:

  • Section 1: Guarantees the rights and freedoms while allowing limitations prescribed by law as reasonable in a free and democratic society.

  • Section 15: Everyone is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.

  The case of R v. Sparrow is significant as it addresses the evolving interpretations of the Canadian Charter of Rights and Freedoms, particularly concerning Indigenous rights. In this case, the Supreme Court of Canada ruled in favor of Sparrow, emphasizing the importance of the rights of Indigenous peoples in relation to fishing practices.

  • The judgment highlighted that the Charter serves not only as a protection mechanism against governmental power but also recognizes collective rights of Indigenous communities.

    Additionally, the waterfield test was mentioned in this context, which determines the limits of governmental restrictions on the rights guaranteed under Section 35 of the Constitution Act, 1982. According to this test, any limitation on fishing rights must be justified by compelling legislative purposes, emphasizing the delicate balance needed in recognizing both individual and collective rights for Indigenous peoples.

Conclusion:

• Reiteration of the complexities surrounding law and social change, emphasizing the dynamic interplay between legal frameworks and societal values.

• Historical cases, such as R v. Sparrow, highlight the evolving interpretations of the Charter and its implications for Indigenous rights.