Sociology 2260A/B Lecture Notes - Sociology Of Law, Hans Kelsen, Legal Positivism

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Published on 19 Apr 2013
Department
Jan, 09, 2013
Punishment for powdered cocaine in less than crack cocaine, chemically the same drug,
black shows demographic using the drug, young minority, poor are in conflict with law,
Donald black- law is governmental social control
An organized system of sanctions used to ensure compliance or “avenge violation”
(weber)
The doctrines and social rules as they are enforced by state agencies, within a politically
organized society (Cotterell 1984)
Law regulates human behavior and the relationships between members of society.
beyond this, of course, it may attempt to enshrine certain
State Law that category of social rules for which the processes and institutions of the
creations, interpretation and the enforcement are most visible.
Civil Law- origins in Roman law, law found in codes. Judges are supposed to apply and
follow the law only as it s enshrined
Common Law- tries to capture the customs of unwritten customs assumed to form the
foundation of a given social group, and to be the source of law. grows out of what was
gone before
Classical common law theorists conceived of law as guided in measure by its
assessment of justice and the common good
Peele
not used as weapon
if a child wanted to use a sharp object to harm in schools, you would have to take away
geometry sets
Classical Law Theorists
Lon Fuller- law must reflect minimal internal morality\can be used as both a coercive
instrument of social control, and to facilitate human interaction
Definition of moral law- system of guidelines for behaviors. may or may not be part of
religions, codified in written form, or legally enforceable. for some people moral la in
synonymous with the commands of a divine being. for others, moral law is a set of
universal rules that should apply to everyone.
John Finnis natural law theory is nothing other than a theory of good reason for choice
justice is about fostering the common good in a community.
In a democratic country a criminal code is used to determine how the law is applied.
these rules are mandated by an elected body of officials. they tell citizens what actions
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are prohibited, how to protect themselves against convictions for breaking the rules, and
what punishments to expect if they do.
Habermans- the law is a social fact, facts are objective and empirical, so the law as a
social fact inevitable ought to be objective and empirical.
Governed by social processes that involve differential relationships of power and
influence
What are norms- an expected pattern of behavior shared with the given social
community.
Functions that law serves
Repressive- rests on the coercive powers of the state
Facilitative- aides in assuring the predictability and certainty in behavioral expectations
Ideological- laws promote domination, legitimation and hegemony
Sociology of law, rather than beginning with the legal definitions as codified by the state,
or a description of various legal decisions and principles, the social aspects of legal
control
General frame work in which descriptions of case law, legal processes and the logical of
legal principles are explored by social scientists. (Milovabovic)
Believed law fulfilled a social function of imposing norms of conduct of patterns of social
conduct on the individual will (Timasheff)
Themes in the Sociology of Law
Social Control
Social Conflict
Power Relations in society
Issues
interests served by the law
and the functions of the coercive and domination in the jurisdiction of law
Canadian Charter & The Law
Every individual is equal before and under the law, equal protections and equal benefit
Equality- consists in the same treatment of similar persons (Aristotle)
Critical theorists- emphasized the importance of placing legal
Conservative perspectives
Functionalist perspective - serves to maintain social cohesion
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Jan 16- Legal Positivism to Sociological Jurisprudence to Sociology of Law
Jurisprudence- rules and regulations
Two types of Positivism- Sociological and Legal
Sociological Postivism- Auguste Compte- father of sociology
Societies have passed through 3 stages of progress
1. Theological of belief in supernatural causes
2. Metaphysical or philosophical where abstract ideas and universal concepts were
applied
3. Scientific where laws of existence discovered by observation to yield facts or positive
phenomena
Legal positivism based on the single assertion that the proper description of law is a
worthy objective and a task that needs to be kept separate from moral judgements
Thomas Hobbes- classical theorists, believe humans are selfish, but rational, have free
will, but in search of pleasure with minimum pain
Without boundaries, humans are inclined to pursue pleasure regardless of
consequences to others
Command theory- defines law as no more than a legitimate command from a sovereign
that is obeyed by subjects
Jeremy Bentham - developed Hobbes ideas and suggested that natural law theorists
were wrong in assuming that human rationality alone will act as a deterrence for
breaking laws
hated lawyers
fixed sentences
maximum pleasure
Herbert Hart- rules of obligation and rules of law and rules of morality
primary rules (basic rules) seconday rules
Hans Kelsen- calls donald blacks pure sociology, Kelsen calls in theory of pure theory of
law
Some laws that apply legal positivism - war measures act
Pope Benedict's participation n Hitler Youth League
Rwanda 1994
Two theories of law
Normative legal theory- seeks to explain the character of law solely in terms of the
Conceptual structure of legal doctrines, and the relationship between rules principles,
concepts and values
Empirical legal theory- seeks to explain the character of law in terms of its historical and
social conditions and treats that doctrinal and institutional characteristics of law
Emphasized in normative legal theory as explicable in term of their social originals and
effects
Sociological Jurisprudence
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