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LWSO 203 > topic 1 > Flashcards

topic 1 Flashcards

1
Q

What is an institution

A

anything that shapes, guides or constrains patterned human behaviour

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2
Q

Is a law an institution, and why?

A

Yes. Through the rules set in place in law,it provides a structured framework that governs how people interact with each other and society

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3
Q

Is society an institution and why?

A

Yes because of the network of relationships, values, expectations and norms it encompasses, example societal norm of politeness shape interactions with people, a framework for “appropriate behaviour “ as well as societal stigmas constrain our behaviour,

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4
Q

what is a society

A

An ordered web of ties including institutions and patterned relationships, that connect a group of individuals, omnipresent, existing everywhere people cohabitate it, it constantly influences individuals

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5
Q

What are structures and actors in context with institutions

A

structures are institutions and doesn’t act but instead guides, constrains and shapes actors, we fall into institutions, actors act within particular structures towards goals, example of both (society is a institution and thus a structure within society there are police, enforcing the law, their goal (an actor within society) or also the general populace, acting within society working, paying taxes and thus serving the society as an actor

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6
Q

institutions vs organizations

A

Organization is an institution that takes action has an agency, organizations are more than a collection of people, they are structured systems with the power and capacity to influence their environment, make decisions and act in pursuit of their objectives, businesses, governmental organizations like WHO, UN or even the government itself, are all example of an organization. Institutions are more abstract, alone they do not take action, but instead shape, constrains and guides the actions of those (actors) within society , by setting norms, rules, law etc

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7
Q

structure agency debate

A

Are decisions made because of the conditions (structures we are surrounded by) or the agency we have…. most likely answer is both

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8
Q

formal vs informal institutions and examples of each

A

Formal- enforceability, compliance (influence social behaviour) , legally binding, (commitments) example university, the law

Informal-unwritten rules, based on social norm, traditions and customs instead of written legally binding contracts, (commitments) they have social influence (maintained through social pressure, customs and interpersonal relationships example family, social groups

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9
Q

Politics

A

Practices and processes of power relations, politics is everywhere not just government, ie; social politics

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10
Q

Power

A

The ability to get someone to do something that they don’t want to do, intertwined and inherent of law

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11
Q

3 types of power

A
  1. Instrumental; ability to use your might to execute your will
  2. Structural; power stemming from one’s position in relationships, how the organization of systems and rules in society affects people’s actions
  3. Ideological; influence people’s thinking, get people to think a certain way
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12
Q

what is law and definitions of law centre around (components of what makes up law)

A

Law is the set of rules and regulations governing a society,

Definition of law tend to centre around
1. Formal rules of conduct (binding and enforceable)
2.The involvement of politics
3. Balancing individual and collective interests
4. Establishing social order
5. Limiting the arbitrary use of power

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13
Q

How do we indicate the law

A

1.Through consequence, sanctions
2. Official enforcement; judges, police
3. Administrative process; bureaucracy with its structures and actors
4. Judiciary system
5. Constitutions

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14
Q

Other definitions for law

A

-law is generally obeyed
-law involves political processes
-law balances individual and collective interests
-law involves social order

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15
Q

some debates on how we define law

A

By the input (judges and lawyers )
Or
By the output (the compliance of the law)
….
both

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16
Q

Relationship between law and politics

A

-law is shaped by politics, politics shaped by law, law influences political processes and creating a law is a political process. law can challenge power relations ie; gay marriage, law can prevent the states abuse of power, law shapes a country’s political institutions, law can adjust political problems (squabble between different levels of government, the “rule of law” is a central component of modern states

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17
Q

Justice

A

In terms of law , reflects the idea of i) legal fairness and ii) legal equality iii) legal rights iv)punishing legal wrongs, derived from the Roman term justica “to give each person their due”

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18
Q

What are two forms of justice

A

-distributive justice; fair allocation of resources in society
-restorative justice;involves victims, restore relation with victims to society, victim is central exp reparations with first nations

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19
Q

What is the aim of justice

A

aim to correct the violation of law

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20
Q

What is the central unit of justice

A

Enforcement

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21
Q

Example of Canadian injustices based on distributive injustice

A

lower income areas are policed more

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22
Q

What is the conflict between natural law and positivism

A

The conflict lies in whether the authority of a legal system can only be understood and judged in relation to a specific moral purpose, such as promoting the common good (natural law), versus the view that laws and legal systems exist independent of people’s determination (positivism).

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23
Q

What is the legal realism perspective on law

A

Legal realism views law as a process where higher courts review and make decisions in lower courts, providing a correct descriptive account of appellate decision making, although it is considered problematic by some.

24
Q

What was a morally and politically contentious legal issue discussed in the Supreme Court of Canada in 2013? (Governor General VS Bedford)

A

The issue of sex work, where a common bawdy house owner and a pimp were sued. The court’s decisions made sex work increasingly dangerous for marginalized prostitutes by exposing them to physical and sexual abuse. However, the Supreme Court fixed these weaknesses.

25
Q

What does the Safe Streets and Communities Act entail?

A

This act changes to criminal law include stiffer sentences for certain offenses, like possession of marijuana plants, aiming to target organized crime by imposing tougher sentences for the production and distribution of drugs.

26
Q

What is the view on law as presented by Cheffins and Tucker?

A

They see law as a subdivision of a larger political process, where it is part of maintaining a balance between the rights of individuals and society.

27
Q

law is a vitally important force, a skeleton that structures our economic, social and political lives. True or false?

A

True

28
Q

How does positivism define law?

A

Positivism views laws as social rules that are valid because they are enacted by a sovereign. This perspective emphasizes the systematic application of law focusing on quantifiable and qualitative facts, adhering to a just legal process more than the specific content of laws.

29
Q

How do our attitudes toward law define us as citizens?

A

Our attitudes toward law and the laws we create define us as citizens by shaping how we interact with the state and each other. These attitudes reflect our individual perceptions of justice and influence our collective agreement on social norms and political processes, thereby defining our relationship to the state and its institutions.

30
Q

Democratic elections are expressions of

A

Democratic elections are expressions of the will of the people, where the successful individuals create binding and enforceable laws reflecting this will

31
Q

HLA Hart

A

Rejects God-given laws, sees law as secular
Law and Morality should also be separated, equating them binds up to critical moral principles
Nulla poena sine lege

32
Q

Nulla Poena sine lege

A

No penalty without valid law, prevents retroactive punishment unless the law benefits individuals

33
Q

Natural law and its problem

A

Law and morality tied closely together, an unjust law is no law at all,
Problem: defining nature of natural law, anyone can invoke their version of natural law due to objective nature of morality, found in Canada charter, cultural relativism need to be practiced, every Mira, framework differs, What is moral? Who is the arbiter?

34
Q

Legal realist movement

A

Is the product of the ongoing failure of legal doctrine to predict legal outcomes
In order to understand legal process one must be aware of the political, economic and social contexts in which law arises changes and persists , (everyday context and the orientation of the decision makers characteristics of the judge (personality and political orientation of the judge, plaintiff, jury etc)

35
Q

Legal realism aka

A

Grand style judging

36
Q

Legal realism is a natural consequence of…

A

Positivism

37
Q

Critique of legal realism

A

Skeptical empiricism

38
Q

Marxism

A

Informed by the idea of historical materialism. Fusion of morality and science. Economy as the base (superstructure), the nature of the economy ( the mode of production) determines everything in society. Dialectical materialism, the view that economic struggles between classes create struggle.

39
Q

What does Marxism say about capitalism?

A

Capitalism plants the seeds of its own demise, internal contradiction in the mode of production, growing wealth in 1 class at the expense of wage slavery in another class. Law is what keeps the proletariat in place protecting capitalist interests at the expense of the working class

40
Q

What view sees law as an institution of capitalism to protect the economic elite class

A

Marxism

41
Q

Critical legal theorist + how do they conceptualize matters

A

Power in law! Legal realism mixed with modern cynicism,critical of the rationales, purpose, values and assumptions of law and legal theories, the aim quoted by kelman is “ uncover delusion or illusion in the legal form and not to remedy ignorance”, power embedded within legal system influenced by Marxist ideas

Normative terms

42
Q

Feminist theories

A

Law serves to reinforce male power and female subordination, seen in laws around divorce, reproductive rights etc

43
Q

First wave feminism

A

Lack of Education rights, subordination of women in marriage and denial of voting

44
Q

Second wave feminism

A

Social issues like plight of working women, lack of birth control access, discrimination against lesbians and woc and double standards in sexual expression

45
Q

Third wave feminism

A

Endorsement of social activism, explicit radical analysis of the role of law and a critique of long established legal notions, reasonableness, objectivity and neutrality

46
Q

Anarchist

A

Suspicious of all forms of state control, endorses a communitarian ethic, holds all forms of government as unnecessary, economic system organized on basis of cooperatives and communal ownership, egalitarianism, inequalities of wealth and power are obstacles needed to overcome

47
Q

Libertarianism

A

Celebrate the rights of the individual and reject the notions of social security, “reject the idea that people must be forcibly protected from themselves”, no welfare no social security

48
Q

All of the categories of (positivism, natural law, Marxism, etc) eclipsed by what fundamental theory?

A

Finding a workable middle ground between the interests of the individual and the interests of the collective

49
Q

Empirical vs normative claims

A

Empirical: argument on “what it is” observable
Normative: “what ought to be” what’s good or bad based on evaluations, have to substantiate our evaluation

50
Q

Natural law

A

Idea that there is a universal , absolute law, law is either told/given by God or discovered via reason
Sees law and morality as the same thing, used by Ancient Greeks, Christian’s, Islam’s, part of our Canadian Charter

51
Q

Which legal theory is Thomas Aklines associated with

A

Natural law

52
Q

Positivism

A

Theory that views law “as is” rather than as it should be, law is posited, human made, what is right is what is lawful, laws validity comes from the validity if the sovereign, rooted in the British parliamentary supremacy ( nothing will override decision of laws created/changed by parliament. ) Separation between law and morality.

53
Q

Within Positivism is law seen as a social construct and if it is why would it be important?

A

Yes because it is a social construct we can change it, since it’s not grounded in morality it’s subject to change.

54
Q

Who said “grand style judging”

A

Boyd

55
Q

How do legal realism and positivism differ and compare

A

Like positivism focuses in law “as is”
Unlike positivism, focused on human influences on law

56
Q

Is legal realism a claim to the rights and wrongs of law

A

No

LWSO 203 (4 decks)

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