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EXAM Study Guide - notes as per lect-readings.docx

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Department
Law
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LAWS 1000
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all

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EXAM Study GuideLaw Topics Key in LecturesLecture Week Sept 13 2012Topics to Look UpWebers Definition of LawAn order will be called law if it is externally guaranteed by the probability that coercion physical or psychological to bring about conformity of average violation will be applied by a staff of people holding themselves specially ready for that purpose pg 7 Three critical elements 1Pressure or threats must be external from some other source 2Must involve coercion or force Violence Sanction 3Those who enforce these must have official role to enforce the law Law is therefore distinguished from customs and conventionsCustoms are rules in definite situationsof relatively long duration and are observed without deliberation and without thinking There is no sense of duty or obligation to follow themReferences customs as rules of conduct for defined situations that are of long duration observed without deliberation or thinkingConventions are rules that involve a sense of duty and obligation Pressure to conform is exerted through disapproval on those who do not conform The central difference from lawlack specialized personnel to instrumentalize coercive forceReferences conventions as rules for conduct that there is a sense of duty and obligation to follow or comply Pressures can include the expression of disapproval Webber states conventions as different from law because it is not enforced by specialized personnel 2 main problems with Webers approach1Too much emphasis on coercion does not consider the numerous reasons why we comply with the law not always about threats2The staff referred to by Weber requires a pretty complex division of Labour and implies the existence of bureaucracyMore WeberLegal systems based on two distinctionsRational procedures and Irrational proceduresRational proceduresscientific methods used to obtain certain objectivesIrrational proceduresrelies on ethics or higher powers such as religion to obtain certain objectiveslegal procedures can proceed rationally or irrationally with respect to formal or substantive law Pg 35 of the textbookFormal Lawestablished rules are the basis of decision making despite fairnessSubstantive Lawtakes more details of circumstances into consideration while considering prevailing justiceSubstantive irrationalitywhen cases decisions are based not on general rules and instead on ethical emotional or religious basis Formal irrationalityrules based on the supernatural irrational because no tries to understand why it is the way it is and formal because the nature of following it is strictSubstantive rationalityapplying rules that are formed from sources such as religion Rational because all sources are specifically known and accepted ones example rules formed from basis of QuranFormal rationality consistent laws applied equally to all based from logic and not religionWebers three types of administrative justice 1 Khandi justicedispensed by the judge of Islamic Sharis courtpg 36 of the textbook Koran basis of law2 Empirical Justice based on interpreting precedents 3 Rational Justicebased on modern law Webers Three types of authorityTraditionalCustomaryirrational need for traditions in society example monarchy in CanadaCharismatic We follow and grant an individual authority due to personality and who they areLinks the idea of natural lawNot formal or rational allocation of powerLegalRationalSystem of offices Predictable rulesStabilitybureaucracy Consensus vs Conflict viewConsensus Durkheim Parsons FunctionalismSociety is functionally integrated WholeRelatively stable system held together by consensus on values shared cultureConflict is minimized and seen as needless inefficientConflict engaged in by groups who do not yet recognize or understand their common interest criminals outsiders Law is a neutral framework to mirror and ensurea set of shared values and goals that support and strengthen social order and social stabilityLaw is about harmony and compromise Law is unbiased reflection of existing social consensus
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