Lecture 12: Law & Power Flashcards
1
Q
what does it mean to be critical (in the context of CLS)?
A
- Critique liberal legalism: exposed law’s role in reinforcing hegemonic power
- Amherst school: integrated CLS & socio legal research, emphasizing law as a cultural system
- Law as an emergent social structure: embodies both domination & resistance
2
Q
ideological orientation of the power/inequality approach
A
- Law & society scholarship has a strong progressive and critical bias
- Focus on power and inequality challenges dominant legal ideologies
- Scholars are expected to reject liberal legalism in favour of critical perspectives
- Constraint: the dominance of power/inequality frameworks limit alternative approaches
3
Q
Decline of theoretical focus in power/inequality (Liu)
A
- Shift from theory-driven research to empirical, topic-based studies
- Past (1970-80s): strong theoretical debates
- Recent decades: less focus on theory
4
Q
U.S.-centric focus in power/inequality (Liu)
A
- Power/inequality approach is a product of U.S. intellectual movements
- Race & gender inequality dominate U.S. socio legal research, but other countries focus on development, human rights, judicial reform
- Critical sociolegal studies exist globally, but have less dominance outside the U.S.
- U.S. scholars studying foreign legal systems often shift focus, but the field’s core theories remain U.S.-based
5
Q
Liu’s powerless approach
A
- The powerless approach argues that substantive concerns in the legal system like the importance of power should not become the overwhelmingly dominant approach of studying law from the lens of social science
- It focuses on the formal aspect of law
6
Q
Power structures & social fields
A
- Imperative coordination occurs when a social group is polarized into a power structure
- Individuals act according to the comments of an active centre (leaders)
- Power structures do not exist in isolation: they overlap, compete, and interact within social fields
7
Q
ideal power structure scenario
A
- Each individual is influenced by only one power centre
- Power structures remain isolated from each other
8
Q
actual power structure scenario
A
- Multiple power structures coexist within a social field
- Active centres struggle for dominance and expansion
- Power centres influence the same individuals, creating competition
9
Q
power structures as changing over time
A
- No power structure remains static: over time, they emerge transform or disappear
- Changes occur in size (power structures may expand or shrink), hierarchy (strengthening or weakening of authority), classification (a power structure may shift from one category to another)
10
Q
The “natural history” of power structures
A
- Power structures have life cycles: they are created, developed, and eventually, decline
- Despite change, the power relationship itself remains constant
11
Q
What ensures the continuity of a power structure?
A
- Not the individuals in power: leaders and subjects can change but the structure persists
- Continuity is maintained through power links: systems of acquired behaviours and obedience patterns sustain structures
- Ex. a monarchy can survive the death of a king, but a total revolution braking power links can destroy it
12
Q
Antonio Gramsci
A
- Italian Marxist philosopher and political theorist
- A key figure in Western Marxism, best known for his concept of hegemony
- Imprisoned by Mussolini’s fascist regime, where he wrote the Prison Notebooks
13
Q
hegemony
A
- The way dominant groups maintain power not just through force, but through ideology, culture, and consent
- Unlike traditional Marxism, which focused on economic structures, Gramsci emphasized the role of ideas, institutions, and cultural leadership
- The way that Gramsci’s public consciousness is enforced
14
Q
how hegemony works
A
- cultural & ideological control
- consent over coercison
- state & civil society
15
Q
Cultural & ideological control
A
- The ruling class shapes public consciousness through education, media, religion, and legal institutions
- People internalize dominant values and see them as common sense
16
Q
Consent over coercion
A
- Instead of using force or repression, hegemony makes inequality seem natural and inevitable
- People willingly participate in a system that maintains elite power
17
Q
State & civil society
A
- The state enforces rule when necessary
- Civil society spreads dominant ideology to manufacture content
18
Q
hegemony as control without force
A
- Gramsci argued that states maintain power not through military force but through cultural, political, and moral leadership
- Control is achieved by shaping people’s minds, mot just by controlling their bodies
- Winning consent is more effective than repression
19
Q
hegemony & racial inequality in the justice system
A
- The legal system is not just a neutral structure but a site of power that reinforces racial hierarchies
- Gramscian hegemony and race: the justice system legitimized inequality by making racial disparities seem natural or justified
- Critical race theory: examines how law maintains racial dominance and white supremacy
20
Q
Liu’s two approaches
A
spatial and temporal identity of power structures
21
Q
CRT on policing & criminalization
A
- CRT exposes how laws justify racial surveillance and mass incarceration
- Ex. Broken Windows policing disproportionately targets communities of colour
22
Q
CRT on sentencing disparities & mass incarceration
A
- Black and Latino individuals receive harsher sentences than white defendants for the same crimes
- CRT argues that criminal laws are selectively enforced to maintain racial hierarchies
23
Q
CRT on the prison-industrial complex
A
- The justice system profits from mass incarceration
- Ex. private prisons disproportionately house Black and Latino inmates while profiting from their labour
24
Q
CRT on the school-to-prison pipeline
A
- CRT scholars highlight how zero-tolerance policies in schools criminalize Black and Indigenous youth
- Black students face higher suspension and expulsion rates, leading to higher incarceration risks
25
Q
naming
A
- Recognizing that an injustice has occurred
- A person experiences harm but may not initially see it as a legal or social issue
- Ex. a worker is exposed to unsafe conditions but assumes it’s just part of the job
26
Q
Blaming
A
- Assigning responsibility that the injury happened because of X
- Ex. the worker realizes the unsafe conditions are due to employer neglect
27
Q
claiming
A
- The injured party makes a formal complaint (legal, institutional, or social) for justice or compensation
- Ex. the worker files a complaint or lawsuit against the employer for unsafe conditions
28
Q
CRT on naming
A
- Recognizing racial injustice
- Ex. police brutality was long seen as bad policing rather than a racialized pattern of state violence
29
Q
CRT on blaming
A
- Assigning responsibility to structural racism
- Ex. housing discrimination is often blamed on personal choices rather than racial bias in lending
30
Q
CRT on claiming
A
- Legal & social barriers to seeking justice
- Power dynamics determine who can successfully claim justice: legal costs, biased courts, and procedural hurdles often prevent marginalized groups from winning claims
- Ex. employment discrimination cases are difficult to win because courts require proof of intentional discrimination rather than acknowledging structural biases
