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Lecture

LWSO 201 Lecture Notes - Agnosticism, Social Forces, The Communist Manifesto


Department
Law and Society
Course Code
LWSO 201
Professor
Marywyatt Sindlinger

Page:
of 4
Economic Theories of Law
1) 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
autonomous
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
community
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
identity
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
4) Critiques
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
the instruments)
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
issues.
Capitalist markets take individual interest and elevates them to the
national iinterest.
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
lower classes
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:
calculability
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