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Lecture 2

Lecture 2 - Law, Its Making and Organizing .doc
Lecture 2 - Law, Its Making and Organizing .doc

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York University
Social Science
SOSC 2350
Allyson Lunny

SOSC 2350 September 20, 2011 Law: Its Making and Organizing st “41 Parliament Resumes” Globe and Mail  “The calendar will soon be chock full of bills, many of which had been voted down by previous Parliaments. Now the Conservatives have a majority, all this legislation will pass…  New overdue copyright law  Omnibus crime bill  Reequip the state with powers to fight terrorism.” Bills before Parliament (2011)  See House of Commons website:  language=E&Parl=41&Ses=1  And Dept of Justice – Acts:   Hansard – record of Debates Perspectives on Lawmaking  Why do we have law?  Why do we need law?  Do we need law?  Regulate public behaviour  Maintain peace and order in society  Provide compromise for conflict  Make claims  Social control  We live in a complex society with millions of people where we can’t rely on individual people to regulate communities or groups.  There are other really important institutions to regulate our behaviour as well. There are other ways where those same expectations can be met.  Models of lawmaking:  Rationalistic  Functionalist  Conflict Perspective  “Moral Entrepreneur” Theory Rationalistic  A rational means for protecting the members of society from social harm  (ie particularly criminal law)  A simplistic theory  But who gets to define what is “harmful”?  Is it a rational approach or highly “invested” approach? Functionalist  How do laws emerge?  Ideas based on consensus in society  Social laws that come up organically  Law are a “reinstitutionalized custom”  Law as a restatement of customs enforced by legal institutions  A crystallization of custom, of the existing normative order  Laws are passed because they represent the voice of the people  A consensus perspective  Customs = norms or rules about the ways in which people must behave if social institutions are to perform their functions & society is to endure.  Marriage laws have changed as well o “Marriage a partnership between two people” o Now reflecting the social consensus of what marriage is Conflict Perspective  The origin of law is traced to the emergence of an elite class  Laws, as a social control mechanism, perpetuate the advantageous positions of the elites  Maintains unequal social & economic divisions  See Chambliss article on vagrancy laws in England  Regulation of security industry (Squeegee kid law)  It’s hard to make the argument that the white collared crimes is that it is due to white control and them wanting to appear elite “Moral Entrepreneur” Theory  Usually not “moral” at all, but highly ideological  Laws as a means to create or maintain a particular “moral” constitution of a society  Law as a means of stamping ideology with “legitimacy” & “respectability”  Anti-miscegenation laws in US & in Canada, see “white woman’s labour law,” & the Indian Act.  To maintain “racial purity” & to secure economic rights & interests with the ruling group  Constance Backhouse’s article about the case where white women could not work for Chinese men  Mothers Against Drunk Driving is a good example Probability of Legislative Response Increases when:  Powerful interest groups mobilize for legislative action.  Public intensely concerned with an issue.  There is no pressure to maintain the status quo or opposition to proposed legislation. Lawmaking  Where does law come from?  Comes from Provincial or Federal governments, depending on the issue.  Legislation  Law made by legislative bodies, most obviously the Parliament of Canada and the Provincial Legislatures  This is statute law: “a new statute … can make drastic changes with the stroke of a pen” (121)  Responsive to public & private pressures  A response often to an issue, concern or problem (eg Anti-terrorism Act (2001))  Preceded by a series of pre-lawmaking “stages” of activity  If intent of legislature as ambiguous – must be interpreted by courts  Constitutional law: eg the Charter as a check & balance to supremacy of Parliament  Imperial statutes (ie Canada Act 1982)  Constitutional amendment  Marriage: both Federal and Provincial have control over marriage. Federal controls divorce, even though it says it regulates marriage, it is the provincial government that deals with marriage, children or anything related. 16 years old with parental permission and 18 years as an individual. Administrative lawmaking  Body of law in addressing the actions and operations of governments and governmental agencies  Creation of administrative rules and regulations  The law concerns the manner in which courts can review the decisions of administrative deci
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