Law in Everyday Life 01/21/2014
SOSC1375 Hard Content: Jan. 14 , 2014 th
Is Law and Justice the Same Thing?
They coincide but at times they do not
eg – crime of necessity > lady stealing baby formula to provide for kids
we all would feel wrong to send her to jail even though it is actually a crime she committed
Moral Ambiguities and the Law
Dobson vs. Dobson case
Ms. Dobson, pregnant, gives birth to Ryan Dobson who has cerebral palsy due to a big accident (caused his disorder)
Son and grandfather sued mom for support and health care
You are considered human when you take your first breath, this was created due to abortion laws
ALS – slowly drowning
Wanted does to aid in suicide (euthanasia)
Structure of Courts
Outline of Canada’s court system
Supreme court of Canada
… Provincial court of Ontario
* CANADIAN LAW
Substantive Law Procedural Law
(Statute Law and (Rules)
Public Law Private or Civil Law
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Criminal Constitutional Administrative |
Law Law Law |
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Family Contract Tort Property Labour
Law Law Law Law Law Definitions:
*Substantive Law consists of all laws that set out the rights and obligations of persons.
Procedural Law outlines the steps and procedures involved in protecting and enforcing the rights given under Substantive
Law, i.e. the rules of court, etc.
Public Law – regulates the relationships between the state and individuals, or between states.
Civil Law regulates the personal relationships between two private parties.
Criminal Law – state defined prohibitions with penalties
Constitutional Law Laws establishing the makeup of government and the division of powers between federal and
Administrative Law governs the activities of administrative agencies of government.
Family Law deals with the relationships between individuals living together.
Contract Law – covers disputes over legally binding agreements.
Tort Law deals with private wrongs committed against one another, e.g. injury caused by negligence.
Property Law deals with issues between individuals over land/renting
Labour Law deals with all relationships between employers and employees.
Law as a Technical Game:
Complex rules: players, functioning, procedures, questions, outcomes
Lawyers: specialists trained in identifying and applying rules
Lawyers: transforms litigants’ complaints into legal disputes
Canadian judicial council (CJC) Sentencing:
Consistency – Parliament passed bill C – 41 to codify, sentencing principles
Proportionally: gravity of offence & degree of responsibility
Trials & Stories
The Law of Everyday Life:
So far we have been looking at formal legal structures. But how is law experienced in day to day life?
How do people know what’s legal and illegal, not having studied the law?
Practice of Law – Law as Naratology:
Can change our perception on a person’s view eg. Woman=mom= good person
Just as everyday experience of law is different from formal textbook law, so too is the practice of law more than textbook law
In practice of law, what goes on in the courtroom is the telling of stories and it matters what kind of stories you tell Looking Back at Law 01/21/2014
Looking Back at Law: Lecture Outline
On what basis to we decide that something is normal/abnormal?
What is common, is considered normal
“That’s only natural”
Today we will explore how social belies figure in the contraction of normal/abnormal distinction, how do we decide between the
Social Beliefs :
Narratology and Social Norms:
*Narratology – who is telling the story
The telling of stories invokes a certain social norms
If we say someone is a mom then she will be considered good
Rule of Law – all ppl are equal under the law
Eg. president and me are equal
Moral Panic a disruption that threatens the social order of a society
Eg. Moral panic about salt, but ppl need salt. Looking Back at Law 01/21/2014
Blown out of proportion to justify something
Law as Regulator of Morals – changes our views and how society works and our morality
Law as Containment – law tries to govern and contain ppl from certain things
Eg. Drugs are prohibited
Clara Ford (1894):
Early 30ies, Black and White (Mulatto), seamstress, unmarried
She allegedly shot and killed Frank Westwood (18, well to do family)
FB Johnston – Lawyer
BB Oster – prosecutor
She crossed dressed to be more comfortable but ppl used this against her to say she is unpredictable and crazy
She shot him bc he tried to rape her
Looked bad on family bc young man was associated with her in a unorthodox relationship shaming the name
She confessed to murdering him and played into the norm of saying how men are convincing and use sexist stereotypes to help
her win the case
18, England, servant
young, white, innocent, hardworking, ugly clothing
Bert Massey had rep for womanizing and presented as a bad guy Looking Back at Law 01/21/2014
She shot him to prevent raping
She argued by manipulating social norms and saying it was defense
Medicalization – medical profession in the legal sector
COMMONALITY B/W BOTH CASES: They play into the paternalization of courts, the courts protecting these woman
Was she responsible for her actions? Blamed insanity
Mom used the fact about mom’s not killing kid to help her.
Colonel David Russel William
Really successful police officer but was a rapist and serial killer and stole female underwear and took pictures
Pictures were shown in court to make him seem abnormal
Bedlam Asylum – mental institution, for mentally sick ppl and become beggars on the street.
People would go see these ppl and take a stick and hit the grate to agitate
It was entertainment and to reassure themselves in the distinction b/w normal and abnormal
Medicalization: entrance of medical Looking Back at Law 01/21/2014
The Modern Era: much of what we see as the abnormal now becomes medicalized
Its no longer an aberration departing from the right path
Medicalization of Social Problems: it’s a medical problem requiring a medical solution
Massages in Swedish prisons allowed for ppl to feel something positive through touch, unlike what they are used to.
Medicalization of social problems
Criminal Law: Canadian Criminal Code 1892
Federal gov of Canada passed the first criminal code
Statutory Law – body of law passed by legislatures
Prime ministers are very powerful
Common Law – judge made law
Sec. 16 of the Criminal Code:
1. Defense of mental disorder – No person is criminally responsible for an act committed or an omission made while suffering
from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of
knowing that it was wrong. Looking Back at Law 01/21/2014
2. Presumption – Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility
by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
3. Burden of Proof – The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal
responsibility is on the party that raises the issue.
R. v. Daviault (1994):
Henry Daviault , Alcoholic = disease
Asked to get some alcohol for friend
He sexually assaulted his semi paralyzed friend
Automatism – do something like machines but youre not there mentally
Can this defense of automatism be used?
State brought on by intoxication, therefore couldn’t form “general intent”
R. v. Stone (1999):
Bert married to Donna
Trip to Vancouver. Conflict He drove to an abandoned parking lot She yells and insults his sexual prowess
He claims that a whooshing sensation came over him and next all he sees is Donna’s body, stabbed 47 times
At trial defense, he pleaded insane automatism, noninsane automatism , lack of intent and in alternative, provocation. The judge
allowed for a defense of insane automatism
Jury convicted him of manslaughter and sentenced him to 7 years
Verdict appealed, upheld by Court Appeal, Supreme Court Looking Back at Law 01/21/2014
What is the Difference?
Medicalized ways of dealing with criminal culpability
Shift from moral vocabulary (normal/abnormal distinction) to medicalized vocabulary (normal/abnormal) distinction
Something in society changed to incorporate medicalization
Same process of distinguishing normal from abnormal but different discourses
Mar 11 in lec
Approve no later than feb 11
Midterm exam Must know narratology (hooks back to doxa) and medicalization application in midterm
Carrie Davies/Clara Ford cases
Daviault and Stone Indigenous Perspectives and Legal Pluralism 20140121
Why are some prisons filled with 80% of aboriginals?
Law and Society:
All societies have laws
We criminalize based on certain fears
Eg. Iran, stone to death with adultery
Eg. Marijuana, might cause people to be unproductive and might be destructive to the social system
Laws grow from customs, social behavior and norms
Law draws a boundary of acceptable and not acceptable
Legal Pluralism: two or more legal systems coexisting together in one geographic area
The first question that needs to be asked is what is law?
Normative order within a social group, law establishes certain norms.
Institution of the state – help normalize
1996: Canadian Criminal Code amended (sec. 718.2e): specifically instructs judges to look for alternatives in imprisonment for
R. v. Gladue (1999)
She thought boyfriend cheated and stabbed and charged and prosecuted, judge saw she was aboriginal and was told to serve
less time bc of this.
Does this mean that aboriginals should get lighter sentences that non aboriginal offenders?
What about other immigrants? Indigenous Perspectives and Legal Pluralism 20140121
Importance of Elders – more experience, know that everything passes, wiser, better, known as pillar of community
Healing: body, mind, spirit – you couldn’t just punish the body, you had to deal with all parts of the body
Harmony as an overriding principle in disputes/no conflict society
Conflict can be