MIDTERM Flashcards
PRISONERS DILEMMA AND THE LAW
- BE NICE
- BE FORGIVING
- BE RETALIATORY
- BE CLEAR
PRISONERS DILEMMA AND THE LAW: THEORETICAL PERSPECTIVES 3 POINTS
- LAW PROVIDES COOPERATION (SOCIAL CONTRACT)
Leads to functioning
b. Society can function optibly when cooperating
c. Law’s expressive functions is to promote mutual cooperation - LEGAL RULES AS DETERRENCE (Shared identity)
a. If the rule to play is to always win, society functions suboptimum
b. Stablishing punishments for defecting on the dules is meant to influence individuals to choose cooperation over betrayal
c. Highlights the role of legal rules in shaping behaviour
d. Rewarding cooperation and penalizing deflecting, the law can reflect our commitment to certain moral principles and norms - LEGAL RULES ARE COORDINATING DEVICES
(Building trust)
Framework and expectations for conduct
b. Unclear rules promote chaos and unpredictability
c. When individuals perceived that legal rules are consistent we are more likely to trust it
SOCIAL JURISPRUDENCE
Ø Area of study that seeks to understand how legal systems, institutions and processes are shaped by and, in turn, shape social structures, norms and behaviours
Ø LAW IN ACTION (living law) —–> LAW ON THE BOOKS (positive law)
- "in short term, it is often the environment that shapes the player… but in the long run, it is the players that shape the environment
LAW AND SOCIAL CHANGE: LAW AS IV
brown v board of education
Ø US supreme court declared school racial segregation unconstitutional
Ø Unpopular decision in many parts of the country
Ø Cornerstone of the civil rights movement
- Established precedent that “separate but equal” education and other services = equal
Ø Paved way to other landmark decisions ( Civil Rights act; voting rights act )
Ø Legal change —-> social change
Ø Segregation remained entrenched in many parts of the south for more than an entire decade - Confederate states: "when hell freezes"
LAW AND SOCIAL CHANGE: Canadian example: charter rights and freedoms (6)
- Limiting police officers
- R v Oakes
- Women’s reproductive rights
- Recognition of LGBTQ community
- Francophones linguistic rights
- Gave people outside of Quebec access to French schools - Strengthened Indigenous rights
- Duty to consult Indigenous people when changes are occurring - Judicial activism
Evans (1965)” law as an instrument of social change”
- Source of the law perceived as authoritative and prestigious
- Rationale emphasizes continuality and compatibility of new law with existing values
- Publicity of new law shows similar laws have proven helpful elsewhere, without adverse effects
- Mandate quick progress on any changes new law requires
- Enforcement consistent by legal authorities
- Sanctions for compliance are positive + negative
Protections in place for new rights +bearers
Answer: if the law is reflected in dominant values and belief system and in how people are living their lives, more or less
- Law needs to reflect how people are living their lives MOST of the time
- When law reflects positive law/ on the books, then comes protests in order to respond to the experiences of people
- The more law responds to social movements, it strengthens people’s trust in society
- Therefore strengthens the law, makes sure it doesn’t change
- Pos law has to reflect living law
2 EXAMPLES OF LIVING LAW -> LEGALITY
SAME SEX MARRIAGE (HULL 2003)
Ø “their cultural practices represent on effort to enact legality in order to compensate for the absence official legal recognition”
Ø Legal consciousness: deploying legal understandings of same sex marriage, infusing symbolic ceremony with legal meaning, namely recognition
Ø Attempt to render law visible in their own lives by replicating official law in a positive way ( ex: make legal )
IMMIGRATION (FLORES AND SCHACHTER 2018)
Ø “social illegality”… experienced by those believed to be “illegal” based on social stereotypes and not on legal realities”
Ø Social construction: inventing legal status of persons; infusing racial and ethnic categories with legal meaning, namely criminality
Ø Attempt to render law visible in the lives of other by replicating official law in a negative way ( ex: make illegal )
CONSENSUS VIEW ON LAW:
Law helps preserve social order, make social life possible, settle disputes, protect individual freedom, and bring about needed social change (Durkheim)
- Law reflects society’s agreement on what is repugnant or evil
- Laws are fair and impartial
- People are treated equally under the law
- Contemporary application of Durkheim work
CONFLICT VIEW ON THE LAW:
law is dysfunctional for society, promotes conflict through its uneven applications, and also contributes to broader social inequality (Marx)
- Laws reflect the power structure of society
- law protect vested interests
- law enforcement targets the underdog, not the powerful
- Marx theory
LEGAL CONTROL
how societies regulate and manage behaviour through the use of legal institutions, norms and mechanisms. Contributes to inequality in several ways. Not uniformly applied.
6 WAYS LEGAL CONTROL CONTRIBUTES TO INEQUALITY
- STRUCTURAL INEQUALITIES IN LAW
- Some laws are targeted towards specific groups
- Unequal treatment in baked into the law
- Ex: Jim Crow laws
- CRIMINALIZATION OF POVERTY
- We criminalize certain behaviours associated with poverty
- Ex: vagrancy laws - UNEQUAL ACCESS TO RESOURCES
- Financial resources needed to adopt legal resources
- Wealthy individuals have the advantage
- Ex: rich people can get better lawyers - DISCRIMINATORY ENFORCEMENT
- Disproportionality targets people of colour
- Ex: stopping a black driver for being black - RACIAL AND ETHNIC DISPARITIES IN SENTANCING
- Studies have shown harsher sentencing patterns for racial and ethnic groups in comparison to white counterparts
- Ex: overrepresentation of black and indigenous people in prisons - IMPACT ON MARGINALIZED COMMUNITIES
Ex: Harm to families, disenfranchisement, health implications
HISTORICAL ACCOUNT: VAGRENCY LAWS
CONNECTING CHAMBLISS AND MARX:
- At all stages, vagrancy laws served dominant interests, rather than interest of society at large.
- Beneficiaries of vagrancy laws changed as the economic system changed (landowning class under manorial system —> bourgeoise under capitalism)
- Direct economic benefits of coercing people into jobs gave way to the indirect benefits of supporting dominant ideology. If idleness = deviant, then wage labour = normal
4 stages of historical account of vagrancy laws
Stage 1 (Post-Black Death, 1348):
- The Black Death killed 50% of the population, and the manorial system relied on cheap labor.
Laws were designed to prevent peasants from leaving and seeking better opportunities, ensuring a stable, cheap labor force for landowners.
Stage 2 (End of 15th Century): - Economic shift from agriculture to trade reduced the concern over worker mobility.
The law shifted from viewing laborers as essential to seeing them as potential criminals, especially robbers targeting merchants.
Stage 3 (End of 16th Century): - Laws expanded to target various wanderers, no longer just criminals but seen as a moral threat.
The focus of punishment shifted from criminal actions to perceived moral dangers, such as disturbing the peace.
Key Takeaway:
Laws served a repressive function, reflecting the economic system’s needs. Initially focused on material control, they evolved to reflect ideological and moral concerns.
Stage 4 (20th Century - Late Capitalism):
- The shift from worker to consumer as the key social identity, where social worth is determined by the ability to consume.
Laws, like Ontario’s Safe Street Acts, mirror vagrancy laws, reflecting how the value of individuals is tied to property and consumption.
REPEAT PLAYER ADVANTAGES
- SKILLED ATTORNEYS ($)
- TAKE RISKS ($)
- PROTRACTED LITIGATION ($)
- ADVANCED INTELLIGENCE (DOCS)
- INFORMAL RELATIONS (FRIENDS)
the have nots often lose
THE JUSTICE GAP: DISPARITY BETWEEN THE NEED FOR AND THE AVAILABILITY OF LEGAL SERVICES
- Affordability of legal representation
- Limited access to legal services
Ø Legal aid shortages - Disproportionate impact on marginalized communities
- Closing the gap? Ex: pro bono,
- Limited access to legal services
EXAMPLES OF REPEATS AND ONE SHOTTER SITUATIONS
REPEAT PLAYER VS ONE-SHOTTER
- Landlord suing tenant
ONE SHOTTER VS ONE SHOTTER
- Divorce
ONE SHOTTER VS REPEAT PLAYER
- Famous hot coffee at McDonalds
REPEAT PLAYER VS REPEAT PLAYER
- Labour union vs a company
WHY DID THEY WANT TO STOP COLLECTING STATS FOR CANADA
Ø TRIED TO STOP COLLECTING DATA, SAID IT WAS FURTHER ISOLATING THOSE MARGINALIZED GROUPS, BUT THE FACT IS ITS HAPPENING WHETHER WE RECORD THE DATA OR NOT, LETS NOT HIDE IT
STATS
Ø Combined: black and indigenous = 8.7% of population:
- 24.3% of police use of forth deaths
- 27.2% of shooting deaths
Ø Compared to white people: - Black people 6x more likely - Indigenous 8x more likely - To die from police use of force
STREET CHECKS
observations result in officer collecting personal info and entering it into a database for future use
- Audited every 6 months, are there any racial behavior - Arbitrary stops in lawful placement - Make sure you tell that you don't have to comply - Documented interaction with no bias, with procedural action - Street checks to place information for sex workers in case they go missing - Not always conversation, sometimes for observations - NO SERCHING FOR STREET CHECKS
CARDING
officers randomly request personal information from a member of the public without reasonable grounds. Documents info on a PHYSICAL form
Ø Could have no charges, but known to the police because someone you know is charged, you are then seen as a danger - They have to provide explanation Writing the write things down, it can impact an individual's image
WHAT IS CARDING / STREET CHECKS IMPORTANT FOR?
DOCUMENTED COMMUNICATION AND INTELLIGENCE
60’S SCOOP
- Large scale apprehension of Indigenous children from their homes, communities and families of birth, adoption into predominantly non-indigenous families across US and Canada
Ø TODAY: indigenous children make up only 7.7% of the child population in Canada, but there are 54% of children in foster care
Ø Rather than provide resources, they believed just taking them away was easier (Kent Monkman photo)
WHY DO WE CALL THE POLICE
○ For protection
○ To help mediate disputes
○ For information relating to criminal behaviour
