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Lecture Week1 september 13th LAW.docx

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Carleton University
LAWS 1000
Steve Tasson

Lecture Week: Sept 13, 2012 Topics to Look Up:  Weber’s Definition of Law  “An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity of average violation, will be applied by a staff of people holding themselves specially ready for that purpose” (pg 7)  Three critical elements:  1.Pressure or threats must be external from some other source  2.Must involve coercion or force (Violence!)/ Sanction  3.Those who enforce these must have official role to enforce the law  Law is therefore distinguished from customs and conventions  Customs are rules in definite situations – of relatively long duration and are observed without deliberation and “without thinking”. There is no sense of duty or obligation to follow them(References customs as rules of conduct for defined situations that are of long duration observed without deliberation or thinking.)  Conventions are rules that involve a sense of duty and obligation. Pressure to conform is exerted through disapproval on those who do not conform. The central difference from law → lack specialized personnel to instrumentalize coercive force.(References conventions as rules for conduct that there is a sense of duty and obligation to follow or comply. Pressures can include the expression of disapproval. Webber states conventions as different from law because it is not enforced by specialized personnel.)  2 main problems with Weber‟s approach  1.Too much emphasis on coercion- does not consider the numerous reasons why we comply with the law (not always about threats)  2.The “staff” referred to by Weber requires a pretty complex division of Labour and implies the existence of bureaucracy.  More Weber  Legal systems based on two distinctions : Rational procedures and Irrational procedures  Rational procedures = scientific methods used to obtain certain objectives  Irrational procedures = relies on ethics or higher powers such as religion, to obtain certain objectives  “legal procedures can proceed, rationally or irrationally, with respect to formal or substantive law” –(Pg 35 of the textbook)  Formal Law = established rules are the basis of decision making despite fairness  Substantive Law = takes more details of circumstances into consideration while considering prevailing justice.  Substantive irrationality = when cases decisions are based not on general rules and instead on ethical, emotional, or religious basis.  Formal irrationality = “rules based on the supernatural”, irrational because no tries to understand why it is the way it is and formal because the nature of following it is strict.  Substantive rationality = applying rules that are formed from sources such as religion. Rational because all sources are specifically known and accepted ones. (example, rules formed from basis of Quran)  Formal rationality: consistent laws applied equally to all based from logic and not
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