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Lecture 3

Sociology 2260A/B Lecture 3: soc 2260 jan 19

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Western University
Sociology 2260A/B
Brenda Kobayashi

Thursday, January 19, 2017 soc 2260 Law and Justice - Schur (1968) - [It] is impossible to avoid the socio-ethical dilemmas that continuously arise in the operation of legal systems. Individuals and groups within a society, including legal functionaries themselves, find it necessary to make ethical choices regarding legal matters . . . These choices-which-, in turn, influence the actual shaping of the legal system and hence help to determine that which we are concerned with studying empirically – are not easy to make. There are always conflicting interpretations and alternative conclusions that can be reached. Social Nature and Significance of Law - Appreciate two related aspects: - Ethical choices legal actors make regarding questions of justice - Ways these choices sometimes conflict with the logical thinking that is thought to guide legal decision-making. Law and Justice - Social and Moral Considerations - Social Science View of Law - Social Institution - Deeply embedded in society - law’s relationship with society is reciprocal (how law affects society and how society affects law) - Traditional View of Law - Law is a self-contained system of logic - Independent from society— no reciprocal relationship in this view.x - this is the view that is taught in law schools 1 Thursday, January 19, 2017 Class Exercise - The Case of the Speluncean Explorers • Justice truepenny • Statute is unambiguous and must be applied by judiciary notwithstanding personal views Clemency is a matter for the executive, not the judiciary • • Court should joint petition to Chief Executive for clemency • uphold the conviction • justice foster • Defendants were in a "state of nature" so Newgarth's normal laws did not apply to them; the laws of nature would allow them to agree to sacrifice one's life to save the other four • If the laws of Newgarth do apply, then a purposive approach must be taken to the statute. Judges can find an exception to the law by implication, as the Courts had earlier done with self-defence. • Principal purpose of the criminal law – deterrence – would not be served by convicting the defendants. • overturn conviction • justice tatting - Criticizes Foster J's approach - The natural law under the posited "state of nature" prioritizes freedom of contract above the right to life - Purposive approach to statutory interpretation is difficult when there are multiple purposes (here, retribution and rehabilitation) - Cannot decide case due to competing legal rationales and emotions • justice keen - Criticizes Chief Justice's propo
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