Law's Liberalism and its Critics (5) Flashcards
What are the goals of the legal system? (4)
Dispute resolution (but don’t they just end them)
Denunciation (condemnation of unacceptable behavior and thus the setting of boundaries on acceptable behavior)
Deterrence (specific deterrence for one person and general deterrence for society as a whole)
Justice
Does the system achieve its goals? (3)
Police are dirty and often don’t do what they are supposed to
Judges don’t always adhere to objectivity and neutrality (make biased decisions)
Juries adhere to community standards and biases
What is the starting point of Liberalism? (2)
Theory of personhood that assumes a ‘rational, free-choosing autonomous self that is independent from the community and other selves’
We are individual people with our own ideas and the role of community is to ensure that each of us live our own ideas
What political philosophy does Liberalism embrace? (2)
Believes that each person should have an equal right to follow or pursue their own interests without restraints due to their identity
Aims to maximize realm of action availed to such a self
What is the harm principle?
People are free to pursue their own version of the good life as long as their choices do not infringe upon other people’s pursuit of the good life
I cannot use my liberty to limit or interfere with other people’s liberty
What is the role of law in a liberal society? (3)
To manage every bodies individual pursuit of the good life and makes sure that when inevitable bumping of pursuits occurs, there is something to manage it
Expand authority through those ground rules and be applied in an imperial manner
Create space for each of us to pursue a good life by overseeing and regulating our actions and interactions
According to Liberalism, what should society by governed by? (2)
Liberty, equality and neutrality
State and law should strive to provide each citizen with maximum freedom to pursue the good life
What 3 key functions does Legal Liberalism see law as performing?
- The law should facilitate or provide mechanisms for social interaction (contracts)
- As a manifestation of the communal will, law should mediate and regulate those interactions
- Determine when one person’s pursuit of their idea of the good life has a negative effect on another person’s pursuit of their idea of the good life, and prohibit these interactions
What does liberalism understand law as? (4)
A human and thus imperfect construct
A complex product of a host of interacting social forces
Both reactive to and constitutive of the broader society within which law operates
Not simply reflective of elite interests, but a site of struggle over the meaning and quality of social existence
What core ideas of liberalism does Legal Liberalism reflect? (3)
A commitment to general, democratically promulgated rules
The idea of equal treatment of all citizens before the law
The separation of morality, politics and personal interests from judicial action
How as the core ideas of liberalism articulated within law? (3)
Adherence to precedent
Separation of judicial and legislative functions of government
Adherence to procedural formalities
Explain the case of Christie v York Corp
Mr. Christie is a black man who frequented a bar in Montreal before going to a hockey game to get a beer. One day he goes and is refused a beer because there was new management who instructed staff not to serve colored people. He sued York Corp and won under the Quebec licensing act but in fact the act said restaurants couldn’t refuse to serve food to travelers, and these specific words that didn’t apply in Christie’s case lost him the case.
Explain the case of Nixon v Rape Relief
Nixon is a transgender woman who was denied the right to volunteer for Rape Relief BC, despite doing everything they asked because she was not born or raised a woman. Nixon filed a human rights complaint with BC Supreme Court who said RR could discriminate for the promotion of a particular group (women) by the BC human rights code. Demonstrates limited legal imagination
What is racially based jury nullification?
When black jurors use their power to acquit black defendants, not because their are not guilty, but rather as a means by which to ensure yet another black person is not put into prison
Why is racially based jury nullification appropriate?
Society and law in general are racist, arresting black people at an alarming rate and nullification is a check on state power
