Chapter 7 & 8 Flashcards
who turned many countries into active legislation instruments?
Bentham
What did Bentham beleive?
“ He believed that only fully developed popular customs could form the basis of legal change. Since customs grow out of the habits and beliefs of specific people, rather than expressing those of an abstract humanity, legal changes are codifications of customs, and they can only be national, never universal
how does shifts in law impact the community?
ppl may come to think that poverty is bad and laws should be created to reduce it in some way or ppl may come to think business ppl should not be free to put just any kind of food stuff on the market without proper government inspection
example of social change directly induced by law
A good example of social change directly induced by law was the enactment of Prohibition in both Canada and the United States to shape social behaviour- it was also a failure in both countries showing that there are limits to the efficacy of law to bring about social change
traditional authority
“ Traditional authority bases its claims to legitimacy on an established belief in the sanctity of traditions and the legitimacy of the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order but, rather, a matter of personal loyalty. The “rule of elders” is an example of traditional authority.
charismatic authority
Charismatic authority bases its claim to legitimacy on devotion to the specific and unusual sanctity, heroism, or exemplary character of an individual and the normative patterns that are revealed or ordained. The charismatic leader is obeyed by virtue of personal trust in his or her revelations, or in his or her exemplary qualities. Individuals exemplifying charismatic authority include Moses, Christ, Mohammed, and Gandhi.”
rational legal authority
“Rational-legal authority bases its claims to legitimacy on a belief in the legality of normative rules and in the right of those elevated to authority to issue commands under such rules. In such authority, obedience is owed to a legally established impersonal order. The individuals who exercise authority of office are shown obedience only by virtue of the formal legality of their commands and only within the scope of authority of their office. Legal authority is not entirely conceptually distinct from traditional authority, although the distinction is nonetheless worth having. In modern society, “legality” suggests a component of rationality that traditional authority seems to lack
2 points Weber made
- The first is that conflict of interest provides the framework in which laws are framed and change is brought about. Consequently, social stratification in a society will determine to a large extent the part that laws will play in bringing about changes, based on the selectiveness and preferences exercised by those who promulgate those changes.”
- The second point concerns the significance of the use of power to back up those changes. Studies of the legislative, judicial, and administrative processes in a society could lead very quickly to a discovery of not only who wields the power in society but also what interests are significant and influential in that group. Thus, the law as an instrument of a change can be viewed in the context of the organization of power and the processes by which interests are established in everyday social life; the resulting changes might very well be evaluated in those terms.”
Aboriginal efforts- 3 provisions within the constitution act
- guarantees of rights and freedoms do not detract “from any Aboriginal, treaty or other rights or freedoms” that Aboriginal people possess as the result of the Royal Proclamatio
- recognizes and affirms “the existing Aboriginal and treaty rights of Aboriginal peoples”—a significant phrase that acknowledges Aboriginal rights as inherent rather than delegated rights; and
- guarantees the convening of a constitutional conference that would include “an item respecting constitutional matters that directly affect the Aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada” within one year of the act coming into force
“The link between law and morality in the making and unmaking of law raises two questions
“(1) What needs to be done in considering a change in the law when moral opinion is divided? Are there criteria other than individual likes and dislikes to which appeal can be made?
“(2) How can the line be drawn between that part of morality or immorality that needs legal enforcement and that which the law ought to leave alone
social factors in resistance to change
“There are several factors that may be construed as potential barriers to change. They include vested interests, social class, ideological resistance, and organized opposition”
vested interests in resistance to change
Change may be resisted by individuals or groups who fear a loss of power, prestige, or wealth should a new proposal gain acceptance. There are many different types of vested interests for which the status quo is profitable or preferable. For example, residents in a community often develop vested interests in their neighbourhood. They often organize to resist zoning changes or the construction of correctional facilities nearby
social class in resistance to change
Rigid class and caste patterns generally tend to hinder the acceptance of change. In highly stratified societies, people are expected to obey and take orders from those in superior positions of authority or power. The prerogatives of the upper strata are jealously guarded, and attempts to infringe upon them by members of lower socioeconomic groups are often resented and repulsed. In most cases, there is a tendency for the upper classes to cherish the old ways of doing things and to adhere to the status quo”
Kohlberg did extensive work on moral development identifying 6 stages
- described as an obedience and punishment orientation. This stage involves “deference to superior power or prestige” and an orientation toward avoiding trouble”
- instrumental relativism, is characterized by naïve notions of reciprocity. With this orientation, people will attempt to satisfy their own needs by simple negotiation with others or by a primitive form of equalitarianism. Kohlberg called these two stages “premoral.”
- personal concordance, is an orientation based on approval and pleasing others. It is characterized by conformity to perceived majority beliefs, whereby people adhere to what they consider to be prevailing norms
- law and order stage. People with such orientations are committed to “doing their duty” and being respectful to those in authority. Stages three and four combine to form a conventional moral orientation”
- the social contract stage; it involves a legalistic orientation. Commitments are viewed in contractual terms, and people at this stage will avoid efforts to break implicit or explicit agreements.
- highest stage of moral development is individual principles. This emphasizes conscience, mutual trust, and respect as the guiding principles of behaviour”
fatalism
refers to feelings of resignation or powerlessness. People who are fatalistic perceive themselves as lacking control over their lives and, for example, believe that everything that happens to them is caused by God or evil spirits. Such a fatalistic outlook undoubtedly results in resistance to change, for change is seen as human-initiated rather than having a divine origin.
what did Roman law allow individuals to do?
“Roman law allowed individuals to argue cases on behalf of others; however, those persons were trained not in law but in rhetoric. They were called orators and were not allowed to take fees.
jurists
individuals who were knowledgeable about the law and to whom people went for legal opinions- “ They were called juris prudentes, but these men learned in the law did not yet constitute a profession.
how did practicing law come to be?
“Only during the Imperial Period (approximately 44 B.C. to 410 A.D.) did lawyers begin to practise law for a living and schools of law emerge. By this time, the law had become exceedingly complex in Rome. The occupation of lawyers arose together with a sophisticated legal system, and the complexity of that system made the Roman lawyer indispensable”
in middle ages what 3 functions did lawyers have?
by the Middle Ages, the lawyer had three functions—agent, advocate, and jurisconsult”
what did attorney originally mean?
The word attorney originally meant “an agent, a person who acts or appears on behalf of someone else.” In this role of agent, the lawyer appeared in court to handle legal matters in place of his client.”
legistes
men of law
- representing clients of court
when did the distinction between agent and advocate appear?
“The distinction between an agent and an advocate appeared when the lawyer went to court with a client to assist the client in presenting a case.”
how was the advocate trained?
In addition to law the advocate was trained in the art of oratory and persuasion
The function of a lawyer as a jurisconsult
“The function of a lawyer as a jurisconsult was to provide both legal advice and to act as a writer and teacher.”