SOCIOLOGY OF LAW - FIRST HALF LECTURES.docx

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SOC 2260B Sociology of Law
Wednesday, January 11th, 2012
The Concept of Law/Classical Foundations of Law/Natural Law
What is Law?
o “Governmental social control” – Donald Black
Suggests oppressive measures
o “An organized system of sanctions used to ensure compliance or
‘avenge violation’” – Weber
Done in response to illegal actions
o “The doctrines and social rules as they are enforced by state agencies,
within a politically organized society” – Cotterell, 1984
Enforced by certain agents.
o Law is “something devised by humans to create order within society
and regulate behavior and relationships. At the same time it may
attempt to enshrine certain ideals, such as equality, freedom and
justice”.
State Law
o “That category of social rules for which the processes and institutions
of creation, interpretation, and enforcement are most visible”
Cotterell, 1984.
Historical Influences in Canadian Law
o Civil Law
Origins in Roman law, a law found in codes.
According to civil law, judges are supposed to apply and follow
the law only as it is enshrined in relevant legislated, written,
and publically available laws that declare rules and standards
of conduct.
In other words, only written law is to be enforced.
o Common Law
These systems try to capture unwritten customs assumed to
form the foundation of a given social group, and to be the
source of law.
Law grows out of what has gone on before through history
individuals will inherit the need for new laws.
Classical Common Law Theories
o Conceived of law as guided in measure by its assessment of justice
and the common good.
Classical Natural Law Theorists
o Lori Fuller
Law must reflect a minimal internal morality.
o John Finnis
Argues that law can be used as both a coercive instrument of
social control, and to facilitate human interaction.
Every legal system reflects an underlying morality.
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Finnis Law and Reason
o Natural law theory is nothing other than a theory of good reason for
choice.
For Finnis, justice is about fostering the common good in a
community; law is the activity that subjects human conduct to
rules.
Law and the Criminal Code
o Three Aspects:
What you cannot do.
How to protect yourself against convictions for breaking laws.
What to expect if you do break laws.
According to Habermas, the law is a social fact.
o Facts are objective and empirical, so the law as a social fact inevitably
ought to be objective and empirical.
Laws are not irrational or ill informed.
o However, we do know that there is a great deal of disagreement over
the laws as enacted. Social processes that involve differential
relationships of power and influence often govern them.
Who creates the law? And how can it be 100% just and fair
when different people are treated by it differently depending
on their status.
What Are Norms?
o A norm is different from a law.
o It is an expected pattern of behavior shared with the given social
community.
The Problem With Norms
o They represent expectations, which vary depending on the
perspective.
o Thus, there is a natural tension between norms that determine the
laws a society makes and the fairness in their application.
In time, norms do become laws through a process of societal
consensus.
If enough people complain about something, then
something is bound to be done about it.
What Purposes and Functions Do Laws Serve
o Repressive
Rests on the coercive powers of the state (varying degrees in
use of military, police, and force)
o Facilitative
The degree to which law aids in assuring predictability and
certainty in behavioral expectations.
o Ideological
Laws promote domination, legitimating, and hegemony.
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The Study of Law
o Milovanovic identifies 2 approaches to the study of law:
Jurisprudence begins with the definitions of law and legal
rules as set out by the state and proceeds on the assumption
that legal decision-making is rational and that legal processes
are legitimate, and indeed essential to social order.
Sociology of Law rather than beginning with legal
definitions as codified by the state, or a description of various
legal decisions and principles, the social of law centers of the
social aspects of legal control.
What is the Sociology of Law?
o A general framework in which descriptions of case law, legal
processes, and the logic of legal principles are explored by social
scientists.
Example: SHINERAMA VS. SQUEEGEE KIDS DOWNTOWN
TORONTO
Why a Sociology of Law?
o Timasheff believed that the law fulfilled the social function of
“imposing norms of conduct or patterns of social conduct on the
individual will”.
Themes in the Sociology of Law
o Social Control
o Social Conflict
o Power Relations in Society
Issues in the Sociology of Law
o The interests served by law and the functions of coercion and
domination in the jurisdiction of law are important issues to
consider in the sociology of law.
The Canadian Context: The Charter & The Law
o Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on
race, national or ethnic origin, color, religion, sex, age or
mental/physical disability.
Equality?
o Equality consists of the same treatment of similar persons Aristotle
o With this being said, history shows that there are certain groups that
have been marginalized, and these groups need to be treated
specially.
o Equality needs to move towards equity.
Sociological Perspectives on Law
o Critical Theorists have generally emphasized the importance of
placing legal and social control in historical context.
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