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SOSC 2350 Note 11.docx

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York University
Social Science
SOSC 2350
Dena Demos

SOSC 2350 Note Law and Social Change Exam Review - Use your TAs to clarify the terms; however don’t get them to make up your study notes. - If you cannot find a definition within your terms, then look at other resources in order to determine it for yourself. What is social change? - Large numbers of people engaging in group activities and relationships that are different from those in which they or their parents engaged in previously o It changes throughout generations o There is a modification in the way people work, rear family, educate their children, govern themselves and seek meaning in life  This can be as gay marriage, women’s rights, etc. - What causes social change? o There’s a multitude of interdependent factors  Technology, conflict, political and economic factors, racial or social conflict, etc. Theories that have been explored - Marxism: class conflict and organization o It is used as a weapon to changing the laws o It can also recognize and create more just working conditions and in term society. o Also see Chambliss article re: vagrancy laws  People leaving rural environments and moving to industrial cities.  Then being punished - Durkheim – law reflects complexities of society, because law reflects society, there might be a way that law can be used in harbouring that change. o Also see Durkheim’s “types of legitimate authority”  Legal authorities with Weber - Other theorists/ theories? o Myth of Equality  Standardized testing and blind applications  Read that lecture o There are ways that the law in standard models of society prevent change.  There are ways that that structure can be used against itself Controversial relationship between law and social change - It’s used to oppress people or to affect change in law for equality and social justice - Is law determined by the sense of justice and the moral sentiments of the population? o Are legal structures set up to support the 1%, or create conditions that there is a structure that creates the 99% o Is it close, and reflecting, prevailing social norms? - Or is law a means through which social change can be brought about? o Is law on the cutting edge of changing mores? o Can lawyers and judges see the way society should head to and make law that moves us forward (for our own good) 2 Different Perspectives - Bentham: law can (and should) lead society o Legal reforms should respond to new social needs and restructure society (according to a more just social attitude - Von Savigny: Law is (and should be) limited to following society’s lead o - Only fully developed customs can form the basis of legal change o There is no point for a new law if no one is going to respect it - Bentham argued that law should create the greatest good for the greatest number of people  Law should serve and represent the people (utilitarian) o Therefore, law should intervene in society to make positive changes where these are required o Entails a confidence in the power of law o Inherent benefits of law. o This view sees law as just, having a legitimate authority, and that it is working on part of all citizens - Von Savigny: Only fully developed customs can form the basis of law (and justify change to law) o Law must be based on established customs in order to be effective (in governing people) o This suggests that law is a popular creation!  It is made in the streets, homes, marketplaces, etc.  Not in the legislature  This argument is against Marx’ perspective where law is not and instrumental o Law is determined by a sense of justice - The political implication is that (radical) social reform makes for bad law because it is unreliable o The reliability of law is rooted in currently established customs and norms  Therefore, any stark change and reform will not necessarily reflect the values of majority, therefore not made on custom Is law a dependent or an independent variable in social change? - Bentham: law stands apart from society o It is designed by legislators, following reasons and science, and created to act upon society.  Therefore, Law creates the ideal conditions for an ideal society  This independence allows a valuable perspectives - Von Savigny: the law is a dependent variable o It is determined and shaped by the current mores and opinions of society  Legal changes are impossible unless they are preceded by social change within society  If there’s been a CRITICAL mass change in gay marriage, women’s rights, etc. o When the majority of people come around to the idea, then the change can be legislated. Social Change as a cause of legal change - Changes to law can result from changes in social conditions, knowledge, beliefs and attitudes, technology and etc. - Liberalization of Canadian Divorce Law o Matrimonial Causes Act of 1857  Liberalism advocates the rights of the individual to know what’s best for them.  Therefore, removing the role of the state helps the marriage o Divorce Act of 1968 Matrimonial Causes Act - No federal divorce law in Canada before 1968 - Couldn’t simply obtain a divorce: needed to provide valid grounds o Grounds for men  prove wife’s adultery o Grounds for women  proof of incestuous adultery, rape, sodomy, bestiality, bigamy, or adultery coupled with cruelty or desertion o Wives who committed adultery were not entitled to spousal support o Husbands had no right to apply for support in any circumstances - No provincial divorce legislation in Newfoundland and Quebec o People had to seek the passage of privacy act of parliament in Ottawa in order to end their marriages  This was due to the religious attitudes of pressures to make it difficult for people to get a divorce Divorce Act of 1968 - Introduced the concept of “permanent marriage breakdown” as a ground for divorce o Retained fault-based grounds for divorce - It is equally available to husbands and wives o Removing double-standards that had existed under the UK Matrimonial Cause Act - Grounds under which divorce could be sought - Section 3 included adultery, rape, and other sexual offences - Section 4 applied if the parties had been living apart and there was a permanent breakdown of the marriage based on specific factors o Imprisoned, alcohol, disappeared or disserted, or just disappeared. - Divorce under this act could not be granted unless a trial was held before a judge, and he would be satisfied that: o There were grounds for the divorce (not just consent) o Parties had not colluded with each other (mislead court) o There had been no approval/consent of the offence o No connivance at the offence (they weren’t taunted into doing the offence) o No reasonable prospect of reconciliation. o There was no jeopardizing the granting of divorce. Divorce Act 1985 - Current Divorce of Canada o Where divorce is uncontested, the law allows spouse to file a joint petition for divorce - Can satisfy the grounds requirement by showing they have been living a part - Don’t need a laws Substantial legal Change over 40 years period - Shift from very difficult divorces o To divorce on demand - Widespread change in how marriage is viewed - 40 years ago legislation modeled was belief that o Marriage was a binding legal contract that you should not be able to get out of unless you were the victim of abuse - Current legislation based on the belief that: o The state has no business using coercive power to keep people in marriage they have decided to leave.  The state has no business in the bedroom of our nation Selecting strategies for change - Electoral politics v. litigation o Litigation can force attention and response to unpopular or minority issue (a particular issue, especially when it is not the issue of the majority). o Issue must be transformed into a legally recognizable claims (Remedies are limited)  It must be applicable to a broader situation Roac
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