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SOC323H5 STUDY PACKAGE for Summer 2013.docx

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Nicole Myers

SOC323H5 The Law and Society Study Package Readings Required for May 6, 2013 (1) Article: Democracy and the Rights Revolution By Michael Ignatieff - Change known as the rights revolution which took off in the 1960‟s in all industrialized countries - Examples include: Women‟s Rights, Gay Rights, Aboriginal Rights - Rights Revolution is a story of inclusion, of how previously excluded groups obtained right of equality but also how rights serves to protect certain groups from the effects of democracy. I.e. group rights to language and aboriginal rights to land and resources are designed to enable minorities to protect that which is essential to their survival from the power of elective majorities. - Rights have a double sided relation to democracy: 1) rights enacted into law by democratically represented express the will of the people, 2) but rights are also used to protect people from the will, to set limits on that majorities can do. - Rights revolution has a double aspect: 1) it is to enhance our right to be equal 2) protect our right to difference. This is the essential challenge brought by Rights Revolution to enhance equality while safeguarding difference - Rights represent a legal attempt to give meaning to certain values; dignity, equality and respect - Rights are no just instruments of the law but the expression of our moral identity - Rights are chief means by which human beings express there longing which is a global phenomenon - 1984‟s Universal Declaration of Human Rights is the history of struggle between colonial minorities of color, women with full civil rights, and aboriginals trying to achieve self- government - Rights are a common value and are commonly expressed by the people - All rights have a political impact and impose change and thereby shape historical periods of reference i.e. battle of the Soviets demanding rights which set the collapse of the “Berlin Wall” - Rights Revolution is a story of struggle, another example includes property rights which women fought for as men held the rights of all property - Worker‟s Right- battle for union rights; petitions, struggle between those who have and those who have not - This can be related to Hobbes, your give up freedom and you come in contract with the state, although the state may intrude on your freedom and rights thereby the price of freedom is eternal vigilance - Western Liberal societies are trying to make a democracy on conditions of total inclusion; all have the same rights and the right to be heard “freedom of expression”. The rights revolution is a conflict between the elites and the public who vocalize there wants, this often provides the image that people are less obedient, less willing to leave politics to the elite, the challenge arises between the elite policy makers and those who want change in order to favor a particular interest. - The rights revolution makes society harder to control, more unruly, more contentious, this is because rights equality makes society more inclusive, and rights protection constrains government power. What makes Canadian rights to interest is how ordinary citizens have forced their way to the table of elites and contributed to the process of constitutional change and its forever shifting results; driven by interest groups, citizens, and nations - Constitutional Change begun with Prime Minister Trudeau‟s desire to anchor Canadian unity in the equality of individual rights: charter rights and freedom 1982, multicultural heritage rights, language rights, aboriginal rights, women‟s rights. - Canada has become the most distinctive rights culture in the world, first, on moral questions such as abortion, capital punishment, gay rights and legal choice of liberal , secular, pro-choice. Second, our culture is social democratic, in its approach to rights to welfare and public assistance i.e. free health care. Third, distinguishing factor includes, our rights to culture, and emphasis on group rights. - The attempts to define rights to succession: 1) to make secession easier by being counterintuitive, having a written law, known and followed by all citizens, 2) avoid civil ware amongst nations in terms of turmoil - The British, American, French rights traditions, have enormous prestige, but have limited applicability beyond Western Europe and North America, because individualistic rights regimes do not capture the dilemmas faced by societies that are both multi-ethnic and multi-national unlike Canada who preaches the virtues of group rights regimes and federalist devolution as potential solutions to conflict between ethnic and religious minorities inside nation-states. - Canadian Charter Rights and Freedoms extend beyond the precedent of Canadian soil other countries observe this right culture is what makes us distinctive because we indentify ourselves through common threads. - Rights Revolution has made Canadian democracy more inclusive, by including groups or people who marginalized or exclude. Canadian politics attempts to exclude difference on the means of gender, race, or culture, differences should be irrelevant, the ideal is to treat all equally, although not everyone has benefited equally from the law. - Despite elites trying to maintain equality they also provide the illusion of rights that things are changing for the better - It is not true that everyone has benefited equally from the rights revolution; there is a gap between rhetoric and performance much like crime, and punishment, the practice of law and written law. - Charter Rights and Freedoms imposed to increase equality but in practice not everyone is equal under the law or is entitled to particular rights - Rights talk may be dividing its people because of how it is franchised and how it recognizes particular groups. If group rights are granted, are groups allowed to have the right to protect their identities from outside pressures or subdue individuals to abide by them? Are minorities in a particular group deprived further of their rights i.e. women not allowed to take part in Muslim prayer and so forth. - Groups should be allowed to protest their cultures and practices against the intrusions of the majority, but they should not be able to deny individual members rights of protest and rights of exit. - Right talks may produce equality but it also contributes to social inequality, while the rights of some are heard others are ignored - Limitations of rights talk as a language of politics: 1) right talk ends up monopolizing our language of the good, i.e. some rights end up recreating the family for example equal income between parents, equal rights to divorce, and management over property. Rights language would ignore all other factors of family such as love, cooperation, and care… family life through the removal/ inclusion of women‟s rights - 2) Rights help us towards deliberation, towards negotiation, and it addresses inequalities in the division of labor, between state and citizen and between man and women and nation verse nation - 3) Rights provide codes of what is acceptable and define the those liberated verse those marginalized, those who have and have not access to rights, codes define the minimum conditions of life, they define the negatives; violence, abuse, and define the positives; loves forbearance, humor, charity. - 4) Right regimes define not how lives should be led, but to define the condition for any kind of life at all - 5) Group rights enhance the freedom of individuals, although group rights and individual rights are in conflict - 6) Rights talk, can show opposing groups that theories right on both sides, thereby people are more likely to understand one another when the common goal to achieve is equality - 7) Rights talk also speaks to the type of community that we are, that we are deliberate equals, (2) Article: Pushing natives beyond the braking point by David Asper - Canada built a military reserve on native soil and promised to return it when they were done - Natives have pursued their legal claimed, in order to resolve their grievances and take control ownership of the land that was once there - They have tried to mobilize opinion and effect change through elected officials - Natives tried to apply the Canadian human rights law to their lands - Natives have resorted to civil disobedience to have their claims acknowledged - Natives right talk is not being heard (3) Article: Justice Delayed - Back log of bail hearings, deprived the fundamental justice of the accused, waited eight days for a bail hearing - Deprived liberty of one Readings Required for May 8, 2013 (4) Article: Chapter Two Theoretical Perspective By Vago and Nelson - There is no single, widely, and commonly accepted, comprehensive theory of law and society, also many theories tend to overlap Evolution of Legal Systems - Formal codified systems emerged when a society becomes so complex that regulatory mechanisms and methods of dispute settlement can no longer be dependent on informal customs and social, religious, or moral sanctions. Emphasis on informal sanctions* - In exchange of informal mechanisms are formal and institutionalized regulatory mechanisms, changes in the organization of society results in a change of legal system and those in power The change from informal mechanisms of control to formal are based on: a. Industrialization b. Urbanization c. Modernization d. Globalization - Informal sanctions are most adequate for small homogenous societies where the division of labor is not diversified an Example of such community: Tristan Da Cunha. The communities‟ reliance on informal mechanisms of social control used mechanisms such as shaming, and open disapproval. - But, in modern, heterogeneous, and complex societies with a high division of labor formal norms and sanctions are necessary to control behavior so that society can continue to function in an orderly fashion. The presence of the law is essential in the maintenance of social order Jonathan H. Turner - Views legal development as a form of institutional adjustment to the ubiquitous (existing everywhere, omnipresent) problems of control and coordination facing modernizing society. He argues that modernization generates conflict, tension, strain, and disjuncture, which force the development of law in society. - Developmental Models- early sociologists all believed in the progressive development of social patterns over long periods of time. These models deal with transformations at various levels in society at the level of; individual, group, community, and organization. - The underlying theme in developmental models is the identification of forces that have produced transition amongst history and change - Suggesting that the more complex a society is the more progressive of a legal system one may encounter, integrated demands that push for transition either; political, economic, educational, religious institutions, and industrialization. - Turner speaks of the primitive, transitional, and modern legal system in depth: 1. Primitive Legal Systems - Typically found in hunting and gathering and simple agrarian societies - Laws are not written nor codified, laws are enforced by customs, tradition, religious dogmas, and values. - Substantive Laws consist or rights and duties and prohibitions concerning what is right, wrong, permissible, and impermissible. - Procedural Laws are rules regarding just how substantive laws are to be administered, enforced, changed, and used in the mediation of disputes. - Laws in primitive societies like all other societies permit important cultural elements: a. They permit coordinate interaction b. Settle disputes c. Check deviance d. Regularize Exchange - In primitive societies there are no well-developed political subsystems, and laws are enforced by religious leaders, chiefs, kin leaders, and elders - Legislative bodies do not exist in primitive society - Emphasis on common law rather than legislative law enacted by political bodies (statutory law) - Thereby the leaders of primitive bodies can enact both substantive and procedural laws, because there is no written law, the chief legislator can strike, rescind (withdraw), or change old laws more easily than the modern legislator 2. Traditional legal Systems - Contain characteristics of advanced agrarian societies and early industrial societies where the economic, educational, and political subsystems are increasingly differentiated from kinship relationships - Legal system more complex and extensive: law, courts, agencies, legislative structures - Law becomes differentiated from tradition* - Distinction between private and public law, it is concerned with the structure of law, the duties and powers of officials and the relationship between the individual and the state. - Criminal Law also becomes distinguishable from torts (civil wrongdoing) laws pertaining to the wrongs by the state, community and public. - The differentiation of law is reflected in the increased complexity of the courts, the role of judges and lawyers become institutionalized and thereby need formal education, and specialized training - Bureaucratization (complexity) of the court emerges through division of roles within the legal system - 1) Laws enacted by the growing legislative body of the polity (particular form of government/entity), can be applied systematically to specific circumstances by professional experts (reliance of intellectual knower) 2) Where political legislation of laws is absent, an established court can enact laws by handing down Common-Law precedents - Laws dominated by the political elite, give more comprehensive codes and statues for societies to follow and abide by, as political development increases so does inequality differentiating between people. Correlation to Ignatieff readings Group Rights, Rights Revolution. 3) Modern Legal Systems - Laws in the modern legal system are extensive networks of local and national statutes (laws enacted by legislature) private and public codes, crimes and torts, common and civil laws, and procedural and substantive rules - A distinction of the modern system – is referred to administrative law, and the increasing proportion of statutory law (written law) over common law (unwritten law). - There are also clear hierarchies of law, ranging from constitutional codes to regional local codes. - The role within the courts become highly specialized and courts adapt to a role to mediate and mitigating conflict, disputes, deviance, and other sources of malintegration. - All forces of the court become highly Bureaucratized and posses internal organization carrying out the law and enforcing the law through multiple realms aside from the court; i.e. police agencies, regulatory agencies drug and alcohol consumption - “ The Modernization of Law” enacted by Turner believes that rights and duties stem from transactions, modern legal norms are universal, uniform and impersonal that is regulated through chain of command and the written law meaning that rules and regulations are applicable to all Theories of Law and Society - Understanding the general types of legal systems as they correspond to various stages of modernization and social development: 1) the issue of legal development in all societies, 2) forces that produce or prevent change in a legal system The European Pioneers - The idea of natural law constitutes the bases for this exposition of law - Natural law can be traced back to Ancient Greece, Aristotle maintains that the natural law is based on reason that is free from all passion, as St.Thomas Aquinas argues that the natural law is part of human nature, and through natural law, human beings participate as rational being in the eternal laws of god - The idea of natural law is based on the assumption that the nature of human beings can be known through reason, and this knowledge can provide the bases for the social, legal ordering for human existence. An appeal to superior forms of creations i.e. such as God. - When an law does not coincide with the natural law it is unjust Baron de Montesquieu - Montesquieu challenges the underlying assumptions of natural law by presenting a radically different conceptualization of law and society - Law is integral to people‟s culture, laws are the result of a number of factors in society such as customs, physical environment, and antecedents, laws therefore can only be understood in particular contexts. - Three types of judiciary power- legislative (to enact laws), executive (to enforce and administer the laws), judicial (interpret the laws established by the legislative power) Herbert Spencer - Evolution consists of differentiation, individualization, and increasing division of labor - Civilization a process from primitive to ultimate heterogeneity - Governments arise gradually to the confines of action and the protection of personal safety Karl Marx - Marxism - Contributes a theory to social change due to economic growth, industrialization, beaurcratization - Every society whatever stage of historical development rests on an economic foundation “mode of production” and the “social relations of productions” two combining elements. - Determining variable is the „mode of production‟ , change in production also changing the way in which groups are attached to the production of technology - 1) Law is a product of evolving economic forces - 2) Law is a tool used by the ruling class to maintaining its power over the lower classes i.e. maintain status quo - 3) In the communist society of the future, law as an instrument of social control will “wither away” and finally disappear - Law according to Marx is a reflection of social economic conditions, the means of production are own and controlled by the elite class, laws is therefore a form of class rule and dominance upon those who are not of the elite class. - Law and the state are the main form of despotism and oppression Max Weber - Weber has a typology of legal systems based on two fundamental distinctions: 1) Legal procedures are rational or irrational, rational procedures involve the use of logic and scientific methods to attain specific objective, irrational procedures rely on ethical or mystical considerations such as magic or faith in the supernatural. 2) Legal procedures can proceed, rationally or irrationally with respect to formal or substantive law. Formal law refers to making decisions on the basis of established rules, regardless the notion of fairness. Substantive law takes the circumstances of individual cases into consideration along with the prevailing notion of justice. - Weber identifies three types of administrated justice: 1) Kahdri Justice- is dispensed by the judge of the Islamic sharia court, based on religious precepts and is lack in procedural rules as to seem almost completely arbitrary. 2) Empirical Justice- the deciding of cases by referring to analogies by relying on and interpreting precedents, more rational then Kahdri justice. Weber believes that traditional and primitive laws are irrational 3) Rational Justice- is based on bureaucratic principles, basically universalistic, looks toward contact, not toward status. Based on observable characteristics of the facts of a case. Modern society sums up in a single concept: the rational. Modern law has become institutionalized through the burcratization of the state. The acceptance of the law as rational science is based on certain fundamental legal principal that involve judicial decision that is based on the application of abstract legal proposition to a concrete situation. Emile Durkheim * good example to use for our current law focus from punishment to rehabilitation * - Outlines his thesis of law in society through the division of labor in society - Tracing the development of social order through social and economic institutions - Law is the measure of the type of solidarity that comes from a society - I.e. mechanical and organic solidarity - Mechanical solidarity prevails in a relatively simple and homogenous society whose unity is ensuring by close interpersonal ties and similarity of habits, ideas, and attitudes. Mechanical solidarity is associated with repressive and penal law. In undifferentiated society a criminal act offends the collective conscience and punishment is mean to protect and preserve social solidarity, punishment is a mechanical reaction. Punishment is used to show the community that deviance will not be tolerated. No concern for the rehabilitation of the offender. - Organic Solidarity – is a characteristic of modern societies that heterogeneous and differentiated by a complex division of labor. Restrictive law governs society with an emphasis on compensation; punishment deals with restitution and reparation for hard done to the victim. I.e. mirrors restorative justice. Contemporary Law and Society Theorists: - Donald Black: considers law as governmental social control behaviour is controlled by these means as well as other forms of social control such as; etiquette, custom, and bureaucracy. - Law is quantitative it can be measured by a given social setting, statutes enacted, regulations issued, complaints made, offenses prosecuted, damages awarded, and punishment is meted out. The direction of law varies through these five qualities: 1) Stratification: can be measured in such ways as differences in wealth and rates of social mobility (inequality of wealth) 2) Morphology: refers to the aspects of social life that can be measured by social differentiation or the degree of interdependence (extent of division of labor) 3) Culture: can be measured by volume, complexity, and diversity or ideas, and by the degree of conformity to mainstream culture. 4) Organization: can be measured by the degree to which the administration of collective action in political and economic spheres is centralized. 5) Social Control: in which people are subjected is a measure of their respectability, and difference between people indicate normative distance from each other. - Therefore stratified societies have more laws because they are complex in nature, they have greater inequality, which can be measured by the division of labor, and the amount of law increases the growth of governmental centralization. - Law in relation to stratification is more penal in style with downward direction, less organized societies are more subject to penal law (harsher, punishable laws) and organized people are subject to compensatory law Current Intellectual Movements in Law - Two ideal conceptions of society: consensus and conflict perspective - Consensus approach governed through the functionalist and conflict perspective and Marxists to study conflict perspective - Functional Analysis focuses on examining social phenomena with respect to their consequences for broader society, concerned with the characteristics of legal phenomena and indicating how legal institutions fit into the workings of the overall structure. - Theorists embracing Conflict and Marxists approaches emphasize the structuring of economic relations that provide, for them, the foundation of various specific studies of legal trends. 1. The Functionalist Approach - Organic analogy, on how each part of the organism comes to function and contribute to the survival and maintenance of a whole. - Manifest functions are those that are built into a social system by design, understood well by group members - Latent functions: are factors that are unintentional and often unrecognized. Unanticipated consequences of the system. I.e. minimum wage laws that were enacted to provide unskilled laborers with an income slightly above poverty level. Which existentially contributed to an increase in teenage unemployment 1) Societies must be examined holistically as a system of interrelated part 2) Cause and effect relation are multiple and reciprocal 3) Adjustment forces the system to make minimal changes 4) Perfect integration is never attained so that every social system has strains and deviations, but there is a tend to neutralize 5) Change is a fundamentally a slow adaptive process rather than a revolutionary shift 6) Change is the consequence of the adjustment of changes outside the system growth by differentiation and internal innovations 7) The system is integrated through shared values - I.e. Durkheim, deviance is central to the functionality of society 2. Conflict and Marxists Approaches - Based on the assumptions that social behaviour can best be understood in terms of tension and conflict between groups and individuals. - Marxian notion of „economic determinism‟, economic ownership especially the ownership of property, determines the organization of society. Also class structure and institutional arrangements as well as cultural values and beliefs that are a reflection of economic organization. I.e. White Anglo-Saxon’s, the law is built upon it* - According to Marx, law and the legal system are designed to regulate and preserve capitalist relations. - Law protects the interests of those in power and serves to maintain distinctions between the dominated and the domineering classes - Law is seen as a set of rules that arise as a result of struggle between the ruling class and those who are ruled. - Breakdown of society into two parts: ruling class that owns the means of production and and subservient class that works for wages - Once conflict manifests, the state takes into consideration the interests of the ruling class and develop laws to that serve to aim to control the threatening of the status quo, therefore the state and the legal system reflect and serve the needs of the ruling clas - Criminal law used in the attempt to maintain domestic order, underclass will continue to be the object of criminal law. 3.Critical Legal Studies Movement - Argued against the rule of law as supreme - Law is inseparable of politics Pg. 45 - Judicial decisions are not based solely on models of reasoning but rest on grounds outside the formal legal doctrine which are political 4. Feminist Legal Theory - Concerned with issues that are central to a broader intellectual and political feminist movement: sex-based equality at the work place, reproductive rights, domestic violence a sexual harassment sexual preferences and rape. - Political defeat of the Equal rights amendments; abortion rights, same-sex marriage obstacles sexual subordination and exploitation in the profession of law and the general provenance of sexism. - Tough on crime policies also have negative consequences on women - A dominant feminist legal theory is to regard men as the source of women‟s problems - Society being viewed as a male dominated sphere/patriarchal - Three predominant themes in feminist theory: 1) Women‟s struggle for equality in a male dominated legal profession and in broader society 2) argument of male bias, extended to include all elements of the law, the law is a reflection of male culture, a masculine way of doing things. The law is therefore corrupted for women because of its inherent masculinity. Thereby women face an entire new making of the law. 3) Law as a just and fair institution, although law is not value-neutral, rational, dispassionate or consistent
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