2350 Law and Society Tuesday October 15, 2013
Lecture 6: JURISPRUDENCE
A neutral and impartial arbiter of the facts
Adjudicates (does not investigate)
Guided by precedent
Expert in legal analysis: legal rules and principles
o For some this means: the application of law, not the interpretation of law
Task of judging is very difficult
Canadian society is becoming increasingly diverse:
o Judges function within this broader social, economic, cultural and
A need for “social context education”:
o Training that includes a critical reflection of social context issues (gender,
race, class, ability, sexual orientation, etc.) with respect to law and the
act of judging
Historically shaped by and structured upon specific theories of choice, rationality
(i.e. The “reasonable man” standard), freedom, rights, etc.
o Seen as fundamental to law
But they are just theories and ideas supported by and through other semi-
autonomous social fields, like politics, economics and religion
o Justice Cory: legal decision – making “is more of an art than a science.”
Thus theory has always been intrinsic to law
o Not something in vogue, trendy, or politically correct
What is Legal Theory?
Legal theory (jurisprudence) is “a multi-dimensional interrogative process in the
pursuit of a better understanding of the nature and functions of law” (102).
Sample theoretical questions:
o What is the nature of law? Is it liberatory, protective or prohibitory?
o What roles/functions do legal institutions fulfill in society? Does law
represent the shared values of a nation or does it only enforce the values
of the dominant community
How we answer these questions depends upon our knowledges, assumptions,
normative models and perspectives 2350 Law and Society Tuesday October 15, 2013
Lecture 6: JURISPRUDENCE
o Ex. Does law represent the shared values of a nation, or does it only
enforce the values of the dominant community?
o Theories of social consensus would argue that law works to shape a
society normatively, whereas theories that challenge hegemony (i.e.
feminist or Marxist theories) would argue that law enforces the values of
the dominant community
Why is Legal Theory important?
Emphasizes the importance of perspectivism in discussing, analyzing and
o One’s positionality, point-of-view
No such thing as pre-suppositionless decision-making
One must be aware of and self-reflect on the suppositions behind ideas and
understanding of law in its relation to society
The act of judgment takes