LWSO 201 Lecture Notes - Agnosticism, Social Forces, The Communist Manifesto
SchoolUniversity of Calgary
DepartmentLaw and Society
Course CodeLWSO 201
Economic Theories of Law
•law is a complex product of interacting social forces
•The legal system reflects and entrenches these forced social and societal norms
•Laws are always socially situated
•legitimizes and reflects power relationships
•Key focus of legal liberalism: Law and Power
2) Legal LIberalism:general features
a) idea of individualize self: individuals are rational, free-choosing and
b) Commitment to democratically promulgated rules
c) equal treatment of all citizens before and under the law
d) separation of legislation and judicial functions in society
e) legal principles broadly formulated on which society operates
f) procedural formalities to protect the individual in the legal system
3) Legal Liberalism and its ties to Capitalism
a) Nature of human beings: rational, free thinking, autonomous, prior to and
independent of the community and other selves
•individuals needs are taken care of first so that society as a whole can thrive
•rational, free thinking, autonomous, prior to and independence of the
b) Linked to democracy and capitalism
•a capitalistic system maximizes economic freedom of individual values
contract, lowering taxes. Law provides structure, stability and certainty.
Certainty of a contract and action. also, certainty in relationships work to our
advantage even if it means breaking agreements.
c) governing principles
•liberty: state and law should provide individuals with as much space as
possible to pursue their own individuals with as much space as possible to
pursue their own individual intersts
•equality: each person has equal rights to pursue interests no matter what
• neutrality of the state: state is agnostic as to the nature of good life, state has
no position of deciding
•Results: decrease in government intervention in law and society
a) people bump into each other: law should provide frameworks to
pursue our interests
b) law should pave the way, mediate, foliate social interactions that are
good for society as a whole.
c) Our Charter favours individuals but also those rights have been
justified to the balance of our society
d) formal vs. substantive equality
•formal: equality of treatment
•substantive: equality of opportunity or results
•e.g. disabled twins to play soccer
•law as balancing tool between society and individuals. e.g. The Charter of
Rights of Freedoms
•most of us are not that rational.
•The idea is that we are equaly free, equaly autonomous and rationan. The truth is that
we are not all equal because of power.
5) Marxist theories of Law- critiques of Legal Liberalism
•philosopher, political economist, historical and the father of communism. (communist
manifesto)--history of all societies is the struggles between the classes.
•In a perfect communist state, you do not need law
d) A consideration of the relationship between law and economics and the
relationship between law and class
e) historical materialism
•History of all societies is social structure. The struggle between the direct
producer and those who reap the benefits.
•Look at the individual
•History and social circumstances precedes what happens in the future
•modes of production-organization of labour and instruments of labour.
social relations of production (rights, wages etc)
Physical and technological arrangements of production (who owns
This leads to the creation of a social structure and economic power.
who has power?
Capitalism renforces inequality and the law facilitates this
separation (property law and contract law). Private property is the
key to Capitalism.
Declassification: the liberty of the individual. This overlooks class
Capitalist markets take individual interest and elevates them to the
a) connection between property law and class struggles/domination
•Law empowers the rich
•foundation of a society is the economic structure
•Assumptions of Marxist Theories
1. law is product of evolving forces
2. law is a tool used by ruling classes to maintain power over
3. law will not be needed in a perfect communist society
6) Weber on the Law and the Rise of Capitalism
i) 2 key aspects of law for capitalist development:
•capacity to develop substantive provisions
ii) Explains a theory of why legal coercion is necessary
iii) External Santions
•Informal: customs (shaking hands)
•Formal: sanctions will be brought upon youif you break the deal
7) Rudder v. Microsoft Corp
i) Example of the courts giving effect to contracts to uphold commercial
certainty – law as protector of private property and commerce
8) Donoghue v. Stevenson