Wednesday September 21 2011
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
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
Truth is absolute
Interested in the presenting
No comprises (Principle)
Truth is probabilistic
Interested in the future (future oriented)
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.
“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
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 -->