Defining Legal Studies (Week 2) Flashcards
How do Brophy and Blokuis view law/legal studies in Canada?
Hint: there are four key themes
Critical approach: being attentive to political dimensions (how law works)
Demystifying law: practical and “messy”, not divorced from humanity
Interdisciplinary: involved/interacts with arts and social sciences
Constructivist: understanding the law as a product of interactions, meaning-making
What are Menkel-Meadow’s three legal questions about the legal studies and law?
- What is law as a field? - what are we studying? texts, relations, institutions?
- What ideas has law generated as a field? - driving society or retro-active? science or art?
- What is the purpose of legal education? - how do you transfer knowledge to practice? how should this be done?
Tamanaha offers a couple different ways of understanding the role of law, what are they?
What does law AND society vs. law WITH society mean?
- Law as a mirror - merely reflects the moral conditions of society
- Law as order/restraint - law’s role is to maintain social stability/regulate behaviour and relationships
One divorces law from society, as a separate governing entity while the other posits that law moves and grows alongside society
What does Tamanaha think people should avoid conflating law with?
Legal doctrine or cases
What is meant by plural orders?
Variety of sources of “order” society that are not easily labelled of “law” – habit, customs, norms
What is the difference between public and private life?
public: governed by laws, policies, have to behave in certain ways
private: free to do whatever you want to do as long as you don’t get caught interfering with the state
How is the mirror thesis strained and broken? What are these gaps?
hint: there are 3
Systemic non-conformity - ignoring law, knowing things are happening but not doing anything to stop them
Out-dated laws - have no real resonance with current society, never been struck down
No one employing legal remedies - law technically in effect but no one pays attention to it (ex: sexual assault is illegal but the law don’t know how to handle it when it happens so people don’t report)
How do issues of power play into law?
Tamahana
Law is not neutral, it is made for people who are making the laws
There are competing responsibilities in the legal system - internal division
Everyone has different situations/structural positions, different laws for different people
What are the new movements in legal theory? what questions is this transition attempting to escape?
Away from grand narratives (complexity, fragmentation)
Escape questions of “what is law?” and start asking “what does law do?” as a web or network of regulatory practices and techniques
Questions challenges of pluralism to legitimacy and authority
What is Weber’s definition of law in its institutional form?
hint: 3 core themes
- pressure of threats must be external from some other source
- must involve coercion/force
- those who enforce these must have official role to enforce the law (staff)
Define customs and conventions?
Customs: rules in definite situations - relatively long duration and are observed without deliberation (no sense of DUTY) - habit
Conventions: rules that involve a sense of duty and obligation. pressure to conform is exerted through disapproval - lack specialized personnel to enact force
What are the two primary issues within Weber’s definition of law?
Too much emphasis on coercion - does not consider other reasons why people may comply with law
The staff referred to by Weber requires a pretty complex division of labour and implies the existence of a separate bureaucracy
What are Donald Black’s 4 styles of law?
What did DB think of law?
- Penal/social control
- Compensatory
- Therapeutic
- Conciliatory
Law is essentially government control
Law is the normative life of citizens
What is the consensus view of law? what does this view say of conflict?
of law?
Society is functionally integrated and relatively stable
Held together by consensus on values
Conflict is minimized and seen as needless
Conflict is engaged in by groups that do not yet understand their common interest
Law is unbiased reflection of existing social consensus - neutral framework
What is the conflict view of law? what does it say of law?
Society is characterized by conflict and is only held together by coercion, order is temporary and unstable
Groups strive to maximize their own interests - no common interest
Law perpetuates dominant or powerful social interests (“the ruling class”) at the expense of other interests, norms and values - law is biased
