3260 Midterm Flashcards
Customs
Rules of conduct in situations that are long in duration and generally observed without thinking
Taken for granted assumption of how individuals conduct themselves
No obligation to follow customs
Conventions
Rules of conduct that involves a sense of duty or obligation
Disproval of those who don’t follow conventions
Legal Plurism (Paul Schiff Berman)
“What people view as law”
Emerged in the 70s
Multiple sources of authority and sites where law can be produced
Adopts an expansive understanding of law and shouldn’t only be recognized as a system of governements and rules
In every derestriction, there’re different rules
Why law is difficult to define
Contemporary societies
- varity of rules and not all constitute as law
Social norms
- shared convictions about what behaviour is deemed appropriate for group members
Baglay’s 3 determining factors of a social norm becoming law
Follows a process
Backed by authority
Virtues that legal rules should possess
4 Virtues legal rules should posses
Prospective vs retroactive
- individuals should know the rules to make informed decisions
Constant
- laws shouldn’t change too frequently
Intelligible
- individuals should have a clear idea of the rules and consequences
Accessible
- individuals should know where to find the rule and who to ask questions to
Functions of law
Social control
Social change
Dispute settlement
4 forms of justice
Distributive Justice
- rule about how resources and entitlement are allocated in society (eg. taxation)
Corrective Justice
- Restore equality by returning victim to their position prior to incident (eg. class action law suit
Retributive Justice
- wrongdoer should be subject to punishment proportionate to action
Restorative Justice
- Restores the relationship between the victim and the wrongdoer as well as community
Dysfunctions of Law
Can benefit individuals and groups with wealth and power over others
Can reflect interests of those who have a voice
Substantive Law
Outlines rights and obligations of legal persons and duties of administered by courts
Defines behaviours that are allowed and those prohibited
Procedural Law
Determines procedures to be followed when enforcing law
Public Law
Deals with collective interests
Governs the relationship between individuals and the state as well as society at large
Criminal law
- concerned with definition of crime and the prosecution and penal
Private Law
Rules governing relationships between individuals
Civil law
- Tort law
- wills, contracts, and marriages
First degree murder
A murder that is planned and deliberate
The Rule of Law
No one is above the law (a social contract)
Injunction
Court order compelling certain type of conduct by an individual, group, or corporation
Historical (method of research)
Records, diaries, news papers
Method to reconstruct and analyze a phenomenon they’re already studying
Limited in accuracy because the data us from another individual
Observations (method of research)
Can be done in lab or field
Mock trials to understand how juries respond to simulated cases
opportunity to record info as event unfold or shortly after
Increases validity of info
Limitation: non applicable to large social setting
Experimental (method of research)
Eg. Davis, Henley, and Smith Study (90s)
Examined victim impact statements and the correspondent between impact statements and sentence.
Results: no indication that impact statements resulted in greater feelings of involvement or satisfaction. Nor did it slow the process or make an impact on sentencing
Limitations: costly, can take years, ethical and legal considerations can prohibit the use of people in experiments
Survey (method of research
Has become dominant because it covers large areas and sample sizes
Limitations: response rate, people dropping out, ability of subjects to understand, people move and pass away,
Natural Law
Links human made law to laws of nature
Consistency of law with higher moral values
We can objectively know what’s right and wrong
Legal Positivism
Challenge natural law perspective
Looks at the way law is made
Law is independent of social and moral considerations
Legal Realism (Oliver Wendell Holmes Jr.)
Examines how law is being applied and practiced
Focus on judicial decision making (difference between what judges say their reason is and what it actually is) - influences by biases
Emphasis on analyzing broader social, economic, and political context
Judges political preference impacted decision making
- Quebec judges more conservative in cases involving human rights Ontario more liberal
Critical Legal Studies (CLS) (1970s)
Law is part of a power structure
Draws attention to racial and wealth inequalities and their impact on law
Questions neutrality and objectivity of law
Law legitimizes the values of those in power
