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LAWS 1000-B Sept21st.doc

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LAWS 1000
Steve Tasson

LAWS 1000-B st Wednesday September 21 2011 Lecture 2 How We Know Law Why is this important?  Perspectives of law provide us with a way not only to understand the law as it is but as it ought to be.  Reveals understandings about the way societies are constituted  Help reveal existing hierarchies in societies and also the way societies are held together  Perspectives help us answer questions such as: -Is law necessary? -What is law? -How does law work? -Who are the subjects of law? -Who makes law? Law then and now, or here and there?  Not all societies employ 'law' as we understand it (eg. Property right)  “Traditional societies” rely on custom as source of rules and resolve disputes through conciliation or mediation by elders (next week)  Traditional societies are more homogenous than modern industrial ones. Shared set of common interest and relations are more intimate (Durkheim)  Informal mechanisms of control are more effective. Example?  Point of similarity between law and sociology (social sciences) -Conflict as main concern Law vs Soc. SciencesApproach Law  Particular  Truth is absolute  Interested in the presenting  Dogmatic  No comprises (Principle) Social Sciences  General (abstract)  Truth is probabilistic  Interested in the future (future oriented)  Self-reflexive (self-critical)  Compromising No compromises in law. Example: Latimer What is law?  No agreement even among scholars  V&N: Law is 1) authoritative 2) reactive 3) interested in “problem-solving” 4) adopts an artificial black and white view of the world 5) law is seen as instrumental (it's a tool) 6) no need to question founding assumptions  Cordozo – Predictability; allow us to predict behaviour if there is a law in place.  Homes Jr. - Role of the Courts (realist); What the courts would do; looking at the decisions made my judges. Weber's definition  “An order will be called law if it is externally...... ready for that purpose” (pg.7) 3 critical elements:  Pressure or threats must be external from some other source  Must involve coercion or force (Violence!; physical, psychological)  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 that are of relatively long duration and are observed without deliberation and “without thinking”. Here is no sense of duty or obligation to follow them.  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 --> they la
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