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Sociology of LAW.doc

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Department
Sociology
Course
Sociology 2260A/B
Professor
Daphne Heywood
Semester
Winter

Description
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 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 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 Precursor of the sociology of law Roscoe Pound- coined the term sociological jurisprudence- takes into account social facts including causes and effects, famous for distinguishing the law in acton form law on the books (living law), saw law as a form of social control or social engineering 6ObjectivesofLaw General security Security of institutions Determining moral standards Facilitating Process Individual Rights Primarily research oriented Mavis Baker,- supreme court rules that the exercise of the discretion on the part of the immigration officer was unreasonable Oliver Wendell Holmes the systematic, theotrically grounded, empirical stufy of law as a set of scoial practices or as a aspect or field of social experience Jan 23/13 1. Do you believe that laws are applied unevenly amoung different social groups 2. Do individuals of higher status use legal means to settle differences more often that those of lower status 3. Are consequences of breaking the law more readily applied to those of lower status that higher status Laws are like cobwebs which may catch small flies but they allow wasps and hornets break throughs Pure Sociology and Donald Black- that the law is a measurable phenomena and that
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