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LAWS1000Q_Introduction to Legal Studies-semester 1_Steve Tasson_Fall 2009( Full Sets of Lecture Notes good luck)

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Carleton University
LAWS 1000
Steve Tasson

Law Lecture 1Why is law importantPerspectives of law provide us with a way not only to understand the law as it is but as it ought to beReveal understandings about the way societies are constitutedHelp reveal existing hierarchies in societies and also the way societies are held togetherPerspectives help us answer questions such as Is law necessary What is law How does law work Who are the subjects of law Who makes the lawLaw then and now or here and there Not all societies employ law as we understand it eg property rights Traditional societies rely on custom as source of rules and resolve disputes through conciliation or mediation by elders next week Traditional societies are more homogenous than modern industrial ones Shared set of common interests and relations are more intimate DurkheimInformal mechanisms of control are more effective ExamplePoint of similarity between law and sociologysocial sciences Law vs Soc Sciences Approach Law Social sciences Particular General abstract Truth is absoluteTruth is probabilistic Interested in the present Interested in the futurefuture oriented Dogmatic Selfreflexive self critical No comprises Principle Compromising Webers definitionAn 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 7Three critical elements 1 Pressure or threats must be external from some other source 2 Must involve coercion or force 3 Those who enforce these must have official role to enforce the law Law is therefore distinguished from customs habitsstopping at red lights and conventions letting elders sit on the busCustoms are rules in definite situations that are of relatively long duration and are observed without deliberation and without thinking There is no sense of duty or obligation to follow themConventions 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 lawthey lack a specialized personnel to instrumentalize coercive force2 main problems with Webers approach 1 Too much emphasis on coercion does not consider the numerous reasons why we comply with the law 2 The staff referred to by Weber requires a pretty complex BlackLaw he says is essentially government controlLaw is the normative life of citizens Public life vs Private Life4 Styles of Law 1 Penal Social Control 2 Compensatory 3 Therapeutic 4 Conciliatorymediating disputes ending conflicts Consensus vs Conflict View Consensus ParsonsFunctionalismSociety is functionally integrated WholeRelatively stable system held together by consensus on values shared cultureConflict is minimized and seen as needlessConflict engaged in by groups who do not yet recognize or understand their common interest Law in the Consensus PerspectiveLaw is a neutral framework to ensure a set of shared values and goals that support and strengthen social order and social stabilityLaw is about harmony and compromiseLaw is unbiased reflection of social consensusConflict Marx SimmelSociety is characterized by conflict and is only held together by coercion different kindsOrder is temporary and unstableGroups strive to maximize their own interestConflict is essential component of social interaction Law in the Conflict PerspectiveLaw is an instrument of repression a weapon in social conflictLaw is not neutral or unbiased used by some groupLaw perpetuates dominant or powerful social interests the ruling class at the expense of other interests norms and values Natural LawOrigins Ancient Greeceabove manmade lawlex iniusta non est lexappeal to justiceUniversal law that preexists humanityGodgiven law determined through human reason AquinasContent more important than formAdvantages law must have some moral contentProvides criteria outside law to challenge lawWeaknesses Which morality is the morality that should inform lawRelatively less stable and predictable than pos lawCotterrell natural law virtually deadlaw cannot be based on absolutes rather must provide a framework for disputes must be adjustableInstrument of compromise between interests within a fractured nation statesShift from what is moral to what worksHowever elements of Natural Law still alive and well US Constitution Canadian Charter of Rights and Freedoms UN Declaration of Human Rights etcThese are based on moral presuppositions about how human beings ought to be justly treatedMain Question Is this law morally defensible Legal PositivismGoal of law is to promote predictability calculability and stability of social relations Law as ScienceLaws are historicallysocially contingent MontesquieuMaineValid lawValid processcommands of the Sovereign
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