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Sociology 2260A/B
Daphne Heywood

SOC 2260BSociology of Law thWednesday January 11 2012 The Concept of LawClassical Foundations of LawNatural Law What is Law o Governmental social controlDonald BlackSuggests oppressive measures o An organized system of sanctions used to ensure compliance or avenge violationWeberDone in response to illegal actions o The doctrines and social rules as they are enforced by state agencies within a politically organized societyCotterell 1984Enforced by certain agents o Law is something devised by humans to create order within society and regulate behavior and relationshipsAt the same time it may attempt to enshrine certain ideals such as equality freedom and justiceState Law o That category of social rules for which the processes and institutions of creation interpretation and enforcement are most visible Cotterell 1984Historical Influences in Canadian Law o Civil LawOrigins in Roman law a law found in codesAccording 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 conductIn other words only written law is to be enforced o Common LawThese systems try to capture unwritten customs assumed to form the foundation of a given social group and to be the source of lawLaw grows out of what has gone on beforethrough history individuals will inherit the need for new lawsClassical Common Law Theories o Conceived of law as guided in measure by its assessment of justice and the common good Classical Natural Law Theoristso Lori FullerLaw 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 interactionEvery legal system reflects an underlying moralityFinnisLaw and Reason o Natural law theory is nothing other than a theory of good reason for choiceFor Finnis justice is about fostering the common good in a community law is the activity that subjects human conduct to rulesLaw and the Criminal Code o Three AspectsWhat you cannot doHow to protect yourself against convictions for breaking lawsWhat to expect if you do break lawsAccording 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 empiricalLaws are not irrational or ill informed o However we do know that there is a great deal of disagreement over the laws as enactedSocial processes that involve differential relationships of power and influence often govern themWho creates the lawAnd how can it be 100 just and fair when different people are treated by it differently depending on their statusWhat Are Norms o A norm is different from a law o It is an expected pattern of behavior shared with the given social communityThe 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 applicationIn time norms do become laws through a process of societal consensusIf enough people complain about something then something is bound to be done about itWhat Purposes and Functions Do Laws Serve o RepressiveRests 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 IdeologicalLaws promote domination legitimating and hegemony
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