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Lecture 6

Jurisprudence - Lecture 6.docx

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Shawn Lehman

2350 Law and Society Tuesday October 15, 2013 Lecture 6: JURISPRUDENCE A Judge  A neutral and impartial arbiter of the facts  Judicially independent  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 Devlin’s argument  Task of judging is very difficult  Canadian society is becoming increasingly diverse: o Judges function within this broader social, economic, cultural and political context  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 Canadian Law  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 creating law 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
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