CJL 3038 Lecture Notes - Lecture 4: Dynamic Equilibrium

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CJL3038 Module 3.4-4.1
Readings
Book comments:
o Remember, the book is not ‘the last word’ on law; instead, it is designed to raise
questions and leave many topics open-ended.
The idea is that you are going to be able to use many different theoretical
perspectives about the law.
This parallels our goal for the course!
o It should inspire you to think for yourself it is supposed to be provocative!
Make you disagree sometimes or create arguments.
Present as many perspectives about how the law works or functions in
society.
o Instead of a book ‘in law’, it is a book ‘about law’.
It is not the kind of book that tells you what constitutes and what does not
constitute law.
This book brings together a bunch of different liberal arts theoretical
perspectives on the law.
This book is not a reference book.
Foreword
Kafka presents the man from the country. The man from the country decides ‘well, I want to
seek the law, I’m going to seek the law’. So, he goes and encounters the doorkeeper, the
doorkeeper who stands at the door to the law. He asks the doorkeeper to enter and the doorkeeper
says “Not at this time”. So, the man from the country hangs out. The doorkeeper gets on a stool
at one point to sit on and the man from the country asks at various times to enter the law. The
doorkeeper keeps saying ‘No, it’s not ready at this time. There are many doorkeepers behind me
who are even more unbearable to look at or one so terrible I can’t even bear to look at him”. The
man from the country tries to give the doorkeeper a gift and the doorkeeper says “Well yea, I’ll
take this gift from you because I don’t want you to think you didn’t try everything, but I’m still
not going to let you in at this time. The parable reaches the end and the man from the country
has essentially spent his life trying to gain access to the law through this particular doorkeeper.
As the man lays there dying he asks the doorkeeper a question, “Why has no one else come to
seek the law? Why has no one else come to try to gain access to the law?”. The doorkeeper
responded saying, “Well, this door was always intended just for you. This door to the law was
always just yours, and now that you are dying, I am going to shut it”.
Studying the law
o How does Kafka’s parable “Before the Law” illustrate problems you may run into
studying the law?
What is Kafka trying to tell you about the law?
It can be confusing at times.
It can be frustrating at times.
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Things are going to seem unfair.
We may seem like the man from the country, confused as to why
we can’t be let in to gain access to the law.
o What effects does Kafka’s parable have on you?
Are you frustrated, angry, or otherwise disturbed?
Are you intrigued? Why?
If you felt confusion or frustration, you understood or got out of the
parable what Kafka wanted.
K’s argument seems to come down to the idea that justice was denied the man from the
country. Was justice done, in your judgement?
o This conversation was done between K and the priest.
o The priest presents different perspectives to the situation with the man from the
country. He seems to understand the rules of the game better than K does. He
seems to understand why the man from the country never gained access to the law
and tries to present different perspectives to K to try and understand that.
With what characters the man from the country, the doorkeeper, the priest, or K
should readers most identify? What social roles and positions are represented by these
characters?
“The problem of our law is that it is not known to us – it is created by a small group of
nobles who rule us”.
o The main thesis of this reading is that the problem of law is that it is not known to
us. So when being ignorant of law, it creates a huge problem in our society.
o It sounds like an elitist conflict perspective.
o K’s perspective is a bit different.
Kafka says “we are more inclined to hate ourselves, because we have not yet shown
ourselves worthy of being entrusted with the laws.” Does this suggest the problem of law
lies within the people or the institutions? Or, is the problem with the man from the
country or the doorkeeper? Both?
o Take a position on this and argue your perspective.
Why would people choose to become couriers instead of kings?
o Kings seem to be the ones that have all of the power, not couriers.
If no one chooses to be a king, why do the messages couriers carry become meaningless?
o So if no one chooses to be a king, why does everyone’s messaged become
meaningless?
What does this reading say about personal responsibility and the law?
Theoretical Perspectives
Theoretical Perspectives in Law and Society are generally couched within our two ideal
types:
o Conflict Theory
Law is the tool by which the ruling class exercises its control.
Elitist perspective
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