Week 4 October 1, 2012
-separation of law from people, it is out there far beyond us, above society.
-we need to take it off the mountain, put people back in
Where Does Law Come From?
-law is not contaminated from people, sense of purity, above us, separated from us-Official version of
law as unaffected and unperverted
law on a mountaintop - separation = justice?
-we started to look at law as a web in a society, helps us to structure our lives, law tells us what to do-
sounds like morality, however the official version of law tells us that it should not count any values and
-different societies produce different perception of law.
-defining features of Canada-Canada is multicultural, democracy –fair and equal participation,
democracy helps to think about substantial equality.
law as part of society - context - law as it is lived
different societies produce different kinds of law
Capitalism and Democracy --> ongoing TENSION-> Capitalism based on inequality , Canada has 2 great
defining ideas, produce electricity .undercurrent that goes in law all the time. Law is good and bad
depending on how you look at it.
transcendence - universal morality everybody shares core believes, a divine natural order-a set of
universal moral principles
they assume that the moral principles can be discovered by the “correct” exercise of intellect -
reason/rationality. so if you think hard you can come up to it??
In context that does not work. Who is obedient? Obedience to the law is the virtue. (you are a good
obedience as virtue? What if you cant obey the law? What if there is a special circumstance? Or a
choice? In law an interplay between CHOICE and CONSTRAINT-you are either an actor, who is making the
choices, or a victim. Problematic dichotomy.
the search for truth – power, where the truth come from??
We need to move from idea that law is based on different morals. One way to deal with it is to take
values and ideas out of it.
When we pretend there is no dominant values, other with different values suffer
Legal Positivism (revisited)
Judges have to be impartial. They use certain test, based on what is legally relevant.
It is an attempt to make decisions rationally. Separating ideas from morality. In theory it sounds good.
Effect- of keeping certain ideas and morals values system, beliefs, hidden, but alive.
facts not values - rational decision making
separation of law from morality
Law and Morality
Law is just when is based on positivism-in theory. In practice…
Morality is something that is often vague, but law is something to be specific.
Morality depends on circumstances, but law depends on the set rules. Law is not open to many moral
law and morality work together - somehow...
morality is vague, law is specific
morality as relative - shared universal moral code?
morality as uncertain, complicated, contested/challenged, just as law we think of it being contested
law has to balance the interests - choice/constraint? Individual vs society, democracy vs capitalism
we can track how certain ideas keep filtering through society.
freedom, equality, dignity
order law as a filter, instead of saying law ha values, say law acts as a filter, only small things get through it.
Only particular ideas get stuck in it and only some come out of it. Whether it based on haves or have
Law and Justice
Law is very slow and difficult to reform
law and social change - collective consciousness, rigidity/hard to reform-> injustice
what holds society together?
not a critique of shortcomings or failings
conditions of knowledge-where idea come from. Track how knowledge flows through the law.
track the creation and dissemination of knowledge - flow of power
the lived experience of law
Legal Consiousness-Ewick and Silbey
knowledge or awareness of law and its potential
idealized version of law - law as a shield