Connecting Law and Society (6) Flashcards
What are the limitations of Traditional Legal Education (law school)?
The Doctrinal Approach to study law focuses on law in books over law on action, and there’s no real connection between law and society (focuses on the letter of the law)
What is legal positivism? (4)
Legal system as posited (created by human acts and imposed on people) and have no natural or metaphysical existence
Views proper study of law as focusing on understanding the nature of the legal system as opposed to speculating about the morality of that system
Law exists and independent of its impacts or questions of morality
Following the letter of the law, the rules, and focusing only on the law
What did H.L.A. Heart theorize? (2)
Saw law as rules
Legitimate social rules are accompanied by a basic, implicit sense that they set a general standard for all who play the game
What are H.L.A. Hart’s 2 elements of rules?
- External element (people obey the rules)
2. Internal element (why do people obey the rules)
What did Hans Kelsey theorize? (3)
Saw law as a normative system; According to a legal norm, men ought to behave under certain conditions in a certain way
Valid law is always relative to specific societies and their basic norms
Law creating activities assume prominence because they establish the basic assumptions that legitimize a legal system’s norms
How do legal positivist say view morality? (2)
Moral debates are irrelevant and moral values like justice are beyond the scope of their analyses
What determines a valid law is the efficacy of a legal system
How are legal education and positivism related? (2)
Both focus on rules and rule making
Legal positivism see law as a normatively closed form of knowledge and system of enquirer which have few if any references to society (sees law as apart from society)
What did Menkel-Meadow theorize? (3)
Law is multi-faceted and we need to understand law in all its various forms
Asks us to engage with the nature of the task of studying and practicing the law
Asserts law must be engaged from a perspective of interdisciplinarity
What did Tamanaha theorize? (2)
Saw law and society as a potentially boundless subject
Roots in legal realism as it focuses on the ways law is actually applied in society and the way society impacts law
Explain the 2 key propositions of law as a mirror of society that functions to maintain social order
- Law is inseparable from social, political and economic life, and reflects the ideas, ideals and ideologies of the distinct legal cultures that shape law in different society (law reflects the dominant values)
- Laws function is to regulate and constrain the behavior of people in their relationships with each other
Expand upon the statement “what maintains social order is law” (2)
A variety of sources contribute to the normative ordering of society, many of which do not comfortable fit the label of law (like habits, customs, moral norms, incentives, etc)
Many of these are not reflected in law but still contribute to social order, showing that there are disconnections between law and society
What separates formal law from the order-producing elements in society?
The emergence of law in its institutionalized form marks a fundamental stage of social differentiation as it is codified and enforced by coercion in a way moral norms and customs aren’t
How is law on the books not the law in action?
Laws that are obsolete or too costly to be implemented may be ignored by officials, demonstrating the power of social norms in shaping the law
What is legal pluralism?
There are a range of legal orders in society that shape how we understand law, and what law we seek out to resolve which problems of order of
What is said about law, social norms and social order?
Law has an impact on social order but social norms may have a greater impact on law and legal institutions
