Law and Society
Week 5 Lecture 6
Theories of law and society
• A Neutral and impartial arbiter of the facts
• Judicially independent
• Adjudicates (does not investigate)
• Guided by precedent
• Expert in Legal analysis: legal rules and principles
▯for some this means, the application of law, not the “interpretation” of law.
• Task of judging is very difficult
• Canadian Society is becoming increasingly diverse:
▯Judges function within this broader social, economic, cultural and political context
• A need for “social context education”:
• Training that includes a critical reflection of social context issues (gender, race, class, ability, sexual,
orientation, etc) with respect to law and the act of judging.
▯Judges see themselves as individuals, as citizens that are embedded in this system with us. The
function with us in this broader socioeconomic system.
▯Social context education: judges themselves need to go to school, not just to study law, but to
understand how the law might look like (how the law would be blind in a good/bad way) This training
includes critical reflection of social contest issues (to question the law whether it is applied fairly) This
requires the judges to become at the very least aware, and to be able to demonstrate their awareness.
• Historically shaped by and structured upon specific theories of choice, rationality (I.E: the ‘reasonable
man’ standard), freedom, rights, etc.
▯seen as fundamental to law
• But there are just theories and ideas supported by and through other semiautonomous social fields, like
politics, economics and religion.
▯Justice Cory: Legal decision making “is more of an art than a science.”
• Thus theory has always been intrinsic to law
▯not something in vogue, trendy or politically correct.
▯Legal theory needs to be questioning the fairness of the law in order to justify, and uphold the
principles of justice.
What is Legal Theory?
• Legal theory (jurisprudence) is “a multidimensional interrogative process in the pursuit of a better
understanding of the nature and functions of the law” (102).
• Sample theoretical questions:
▯What is the name of law? Is it liberatory. Protective or prohibitory?
• What roles/functions do legal institutions fulfill in society? Does law represent the shared values of a
nation, or does it only enforce the values of the dominant community?
• How we answer these questions depends upon our knowledge’s, assumptions, normative models, and
perspectives. ▯EX: Does law represent the shared values of a nation, or does it only enforce the values of the
▯Theories of social consensus would argue that law works to shape a society normatively, whereas
theories that challenge hegemony (ie. Feminist or Marxist theories) would argue that law enforces the
value of the dominant community.
Why is Legal Theory Important?
• Emphasizes the important of perspectivism in discussing, analyzing and creating law.
▯One’s postionality, point of view
• No such thing as presuppositionless decisionmaking
• One must be aware of and selfreflect on the suppositions behind ideas and understanding of law in its
relation to society.
What Legal Theory Teaches Us:
• The act of judgment takes place in a context beyond those that are strictly judicial/ legal
• Only a portion of these are recognized or articulated
• Social, cultural norms go largely unnoticed
▯I.E: Class, Race, Gender, Etc.
• The law internalizes certain social norms to formulate a culture unto itself; takes its own norms/values
(and theories) for granted