Theoretical Approaches & Debates/Critiques Flashcards
Social contract theory
Thomas Hobbes- agree to give up a certain percentage of our personal freedoms (follow a set of laws) to the government (leviathan) to ensure freedom, security, social order.
Holmes definition of law
the law is what judges tell us it is - different judges interpret law in different ways aka LEGAL REALISM
Benjamin Cardozo’s definition of law
law is predictable with a limited certainty. if you break the law, it will be enforced w/punishment, but it’s also subject to interpretation
Max Weber’s definition of law
If you break the law, it will be enforced by personnel holding themselves specially ready for that purpose- ex, courts, judges, lawyers. EXPLICIT rules enforced by SANCTIONS of public officials and private individuals. Authorized personnel create, interpret, and enforce the law
Hoebel’s law jobs
(1) define relationships/social change, (2) allocation of authority to coerce, (3) dispute settlement, (4) redefine relationships/social change
social change
large number of people engaging relationships that are different from what they (or their parents) did previously
Major change in the evolution of legal system
As society becomes more heterogenous and populated, we rely less on shared beliefs and more on a formal (written) set of laws.
17th and 18th century European settler views on Indigenous land
saw land as vacant, and indigenous people as having “no law” — little respect of their beliefs
Paul Russell: Main points
Canada’s judiciary system is formed of socio-economic development, political beliefs/ideology, and legal culture.
There are TWO formal legal systems in Canada. What does this mean?
Canada is a BIJURAL country
Four principles of open secularism in Quebec
(1) freedom of conscience/religion (2) moral equality (3) neutrality of the state and (4) separation of church and state
Indigenous beliefs of land
believed in creation myths- everything is organized in a greater reality, focuses on responsibility of earth and nature & TO EACH OTHER, rather than rights of the individual against the group.
Legal Positivism
Hobbes and Locke: Law as a set of commands/rules that are created by a sovereign entity. Focuses on what the law is, not what it ought to be. Ignores morality.
Legal Realism
Holmes. Says that judges formulate the law’s meaning based on their own personal conception of Justice, or what the law ought to be. Not focused on what the law says, but more what’s going on “behind the scenes”.
Natural law theory
Suggests an inherent link between law on morality- moral values and their place in law. Claims that law is only legitimate when it conforms to higher, universal principles of morality. Without this, society would inevitably fall apart. Aristotle
Legitimacy of the law
why should we obey certain laws- what makes them legitimate? examined through legal positivism, legal realism, and natural legal theory
Conflict approach
Social behaviour is best understood in terms of conflict & tension between groups and individuals.
Society is a location for struggle over scarce commodities
Consensus assumption
Legislature is built on democracy and majority vote/consensus.
Durkheim’s assumption of law and society
law promotes solidarity in already-stable societies
Weber’s assumption of law and society
law is always created, interpreted, and enforced by authorized personnel.
Critiques of natural law theory
Only concerned w/ morality- doesn’t propose a link between law and society. Vague, varies by culture, too subjective, too religious.
Critiques of legal positivism
Ignores concept of morality & justice (justifies evil laws) and human agency. Doesn’t account for impact of politics, economics, or culture on laws
Legal Liberalism
Law as a reflection of the individual as the core actor in society- focusing on individual rights. Assumes that individuals are rational, self-interested, autonomous, and dignified. Law should protect liberty and equality. Also assumes that the law is neutral and acts in the equal interest of everyone.
Critiques of legal liberalism
Flawed assumptions of individual: we are not always rational, self-interested, autonomous, and dignified. Eurocentric conception of society. Ignores tensions between liberty & equality. Law is NOT neutral.
Utilitarianism approach
John Stuart Mill- a law is moral if it promotes overall happiness/benefit of everyone in society- not just for an indivivdual. Suggests “freedom of inquiry” approach, which Patrick Fitzgerald argues is not feasible.
Critical Legal Studies
Law is a systematic means of power and is NOT neutral. Judges are also political actors and distribute power by making legal decisions that create winners/losers. Critical of judicial method- why so much power if their unelected? Argues that judges manipulate the law to reform it to their own personal idea of justice
Critiques of critical legal studies
On the right track, but focuses too much on individual factors- needs to look at systemic factors of law
Feminist Legal Theory
Rejects the neutrality of law- argues that that reinforces patriarchy and benefits men to the detriment of women. Jurisprudence as a historically male-dominated field and laws made in best interests of a male. Ex, spousal rape provisions
Critical race theory
Argues that legal structures create and reinforce racism (ex, racialized people overrepresented in criminal justice system, slavery was allowed by law). Also presents the idea of jury nullification- acquitting a racialized man despite knowing he’s guilty
Critical Aboriginal/Indigenous Legal Theory
Focus on the negative impact of legal structures on indigenous people- overrepresentation, discounting oral traditions of communication (in favour of western written traditions)
Critiques of the critics?
Fails to deal with cross-cutting sources of discrimination and inequality. Unrealistic and debates about proper focus
Indigenous assimilation
wanted to absorb indigenous culture into dominant society- make them the same and “disappear” into society- Indian act and residential school system
The White paper
Pierre Trudeau- policy changes to “end special treatment” for indigenous people, advocate for assimilation
The Constitution express
push for aboriginal treaties to be brought to the forefront and recognized in the constitution
Truth and reconciliation commission
survivors of residential schools bring awareness to the issue
Brian Tamanha
law is a mirror of society that functions to maintain social order.
H.L.A Hart
legal positivism
Conflict theory
Karl Marx- Law promotes interest of ruling class & perpetuates inequality. Focus on role of economy/mode of production, which affects social relations. Law is part of “superstructure” designed to control class conflict
Consensus Approach
Society viewed as an organic (though imperfect) whole.
Focus on how different actors/institutions work together
Often involves “functionalist analysis”
Emile Durkheim & Consensus Approach
Assumes shared values in society. TWO types of solidarity- mechanical and organic. TWO types of law- repressive vs. restitutive
Solidarity: mechanical (social integration based on common beliefs/values) and organic (social cohesion based on dependence individuals have on each other- more advanced societies). Repressive vs. restitutive laws
Mechanical solidarity
social integration based on common beliefs/values
Organic solidarity
social cohesion based on the dependence individuals have on each other- more advanced societies
Repressive law
based on force/pressure, AGAINST will of people
Restitutive law
requires offender to comply with law and potentially pay for harm done
Rationalization
Max Weber: Rational vs. Irrational legal systems, formal vs. substantive law. Argues that modern law is authoritative and relies on a formal & rational system
Rational legal system
Based on authority of modern democracy, legitimate (ex, officials who are elected)- yields predictable results
Irrational legal system
Outcomes are unpredictable, not legitimate or rational
Formal law
law as a fair set of rules
Substantive law
establishing rights & obligations of individuals
Roger Cotterrell
Outlines importance of social theory in legal studies, rejecting theories of Marx, Durkheim, Weber- “distrust of grand narratives leads to more modest view of social theory”
Menkel-Meadow
Law is created by humans to govern themselves, create order & social control, and to provide justice at its best. Argues that modern law must take ideas & findings of other non-law disciplines seriously, because society isn’t entirely autonomous
Brian Tamanaha
Law is implicated in almost everything in society- w/out boundaries. 3 key groups: legal sociologists, socio-legal scholars, critical legal studies.
Tamanaha’s Legal sociologists
advance the science of society
Tamanaha’s Socio-legal scholar
how legal actors/institutions actually operate
Tamanaha’s Critical legal studies
exposing how law systematically furthers interests of powerful groups
Rationalistic Model of Law
law is a rational way of preventing harm in society
Functionalist Model of Law
law is a normative consensus (collective agreement) of society and how it should operate
Conflict Model
law is a way to maintain power of the dominant class
Moral Entrepreneur Model
law is created to reflect the moral preferences of several small activist groups
Morton and Knoff’s argument regarding limits of the judiciary role
Judges shouldn’t be able to strike down legislation due to a lack of LEGITIMACY (not elected) and CAPACITY (experts in law, not policy).
Left critiques of constitutional rights protection
judges fail to protect rights, threat to democratic action
Right critiques of constitutional rights protection
judges need to interpret the law in a more broad and purposive approach, threat to judicial activism
What do Brickey and Comack argue about our perception of law?
Must move away from a marxist perspective of law as a dominant form of capitalism and rethink of law as an important agent of social transformation
Critiques of Marxist legal lens from Brickey and Comack
viewing law through a Marxist lens focuses on it’s oppressive role and fails to recognize the potential to use law for social change
What are two ways we can move law away from oppressive capitalism?
(a) push law to it’s full limits to see where oppression lies, (b) push law to it’s limits to recognize group rights
Brickey and Comack argue these four ways of pushing the law to its limit:
Mobilizing social movements, class action lawsuits, advance collective rights, combat structural inequality/tension in law:
Class action lawsuits
one person/group as representative plaintiff for much larger group- act on behalf of others, move away from individualistic focus
Combat structural inequality/tension in law
raise awareness of law’s inequality by showing how capitalism is inherently unequal- then chip away at it
