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University of Guelph
SOC 3490
Scott Brandon

Introduction  V&N C.1 - Sociological jurisprudence: study of law & legal philosophy & the use of its ideas in laws to regulate conduct - Legal thinking diff from scientific thinking b/c 1. law particular rather than general 2. doesnt try to establish dramatic connections b/w means & ends 3. truth for law normative & nonprobablistic 4. past & present oriented & unconcerned w future 5. legal consequences may be valid even if they don't occur, formal validity doesnt depend on compliance 6. a legal decision all or nothing, little room for compromise Conceptualizations of Law - Weber 3 basic features 1. Pressure to comply via threats 2. These external threats involve force/coercion 3. The ppl who threaten are ppl who’s official role is to enforce the law o Critique: too much emphasis on coercion (ignore other reasons ppl obey law), exclusively “staff” - Customs: rules of conduct in defined situations that are of long duration and done w/o thinking - Conventions: rules for conduct & involve sense of duty/obligation - 4 styles of social control o Penal: deviant a violator & subject to condemnation & punishment o Compensatory: person has an obligation therefore owes victim restitution  Both accusatory o Therapeutic: deviants conduct abnormal & need help o Conciliatory: deviant behaviour 1 side of social conflict, need resolution w/o consider who right/wrong  Both remedial Types of Law - Content of law o Substantial: rights/duties administered by courts – what behaviour allowed or not o Procedural: rules about how substantive law should be administered & used in legal system - Public VS private o Public: structure of govt, duties/power of officials, relship b/w individuals & state (ex. crim law) o Private: concerned w substantive & procedural governing relships b/w ppl (ex. divorce, property) - Civil VS criminal o Civil: like private, rules & procedures to govern the conduct of ppl in their relship w others (violations of civil statutes = torts – ppl seek court in private wrongs) o Criminal: defn of crime & prosecution of offenders, offenses against state or “the people”, public wrong - Canada’s 4 branches of public law: o Constitutional: branch of public law, determines political org of the state, set limits on governing power o Case law: enacted by judges in cases decided in appellate courts o Statutory: legislated, passed by elected officials in legislative assemblies o Administrative: created by admin agencies in form of regulations/orders/decisions - Royal pejorative: residue of discretionary authority legally left in the hands of the crown Major Legal Systems Romano-Germanic System (civil) th - Rules of 6 cent AD Rome, Justinian Code – evolved to private law - After Roman Empire fell, it competed w customary law of Germanic tribes that invaded Europe th - Coexisted w local systems until 17 cent - Codified systems are basic laws set out in codes (body of laws) – enacted by national parliament Common-Law System - From English system after 1066 Norman Conquest, law of England resisted codification - Law based on case law – precedents set by judges in deciding a case Socialist Legal System - 1917 Bolshevik Revolution gave birth to Union of Soviet Socialist Republics - Objectives o Law must provide natural security (consolidate & increase power to prevent attacks) o Developing production & distrib of goods so everyone provided for on the basis of their needs o Education: to overcome selfish & antisocial tendencies brought by centuries of poor economic org - Court applies law, rejects separation of power, ownership=central notion o 2 versions: collective (ex. collective farms) and state (ex. products in industrial sector) Islamic Legal System - Not an independent branch of knowledge – religion integral to - 4 principal sources: 1) Koran (word of God) 2) Sunna (acts of prophets) 3) judicial consensus (precedent) 4) analogical reasoning (circumstances not covered by the other sources) Functions of Law Social Control - Relies on internalization of shared norms, deviants subject to informal mechanisms of social control - Formal social control characterized as: 1) explicit rules of conduct 2) planned use of sanctions to support rules 3) designated officials to interpret & enforce the rules Dispute settlement: only deal w disagreements translated to legal disputes Social change: bring about planned social change by the govt Dysfunctions of Law: conservative, social changes often precede law changes, restrictive aspects of normative control, discrimination inherent Paradigms of Society 1. Consensus: society as fully integrated, stable, held together by consensus values o Law neutral framework for maintaining societal integration, diverse groups & interests conflict 2. Conflict: society ppl in conflict & together by coercion, order temp & unstable, conflict intrinsic o Law a weapon in social conflict, instrument of oppression by the ruling class for their own benefit Theoretical Perspectives  V&N C2 Evolution of Legal Systems Traditional - H&g or agrarian, custom (not written), no well developed political systems, cout enacted (common law) - Substantive: rights/duties/prohibitions about what allowed - Procedural: rules regarding how substantive law administered/changed/used in mediating disputes Transitional - Advanced agrarian & early industrial societies where subsystems more differentiated from kinship relships - Public law: govt, ppl VS state Private law: b/w ppl - 5 distinct statuses: judge, lawyer/rep, litigant, court officials & admin, jurors Modern: admin law, differentiated groups, transactional, universalistic Theories of Law and Society - 2 issues: 1) legal devt in any society 2) forces that produce or prevent change in the legal system European Pioneers - Natural law: universally valid, human nature (reason) - Mid 19 cent natural law displaced by historical/evolution interpretations of the law & legal positivism – legal & moral 2 separate realms - Montessquieu: challenged natural law assumptions, law integral to culture o 3 diff legal powers: legislative, executive, judicial - Herbert Spencer: natural selection & the fittest, opposes helping the weak o 2 stages in civilization devt: primitive/military AND higher/industrial (increase liberty) Classical Sociological Theorists Karl Marx - Society rests on economic foundation (the mode of production) o 2 elements: 1) physical/tech arrangement of economic activity 2) social relations of production (human attachments formed when engaged in economic activity) - Economic determinism shown in his theory of law 1. Law a product of evolving economic forces 2. Used by ruling to keep power over lower classes 3. In communist society of the future law as social control will disappear - Law as reflection of economic conditions integral to doctrine of dialectical materialism cultural order determined by system of production & forms Max Weber - Typology of legal systems based on 2 distinctions: 1. Legal procedures are rational (logic& scientific method to obtain specific objectives) or irrational (ethical/mythical considerations) 2. Legal procedure proceed w respect to formal (based on rules regardless of fairness) or substantive 9takes circumstances into account) o Creating 4 ideal types: 1) substantive irrationality 2) formal irrationality 3) substantive rationality 4) formal rationality Emile Durkheim - Law a measure of the type of solidarity in society o mechanical in simple homogenous society (unity ensured by interpersonal ties), repressive of penal law, punish to preserve solidarity b/c harm collective conscience o organic modern societies, hetero, differentiated by complex division labour, restitutive compensation, repair harm Sociolegal Theorists Albert Venn Dicey: rule of law 1) no one punishable except for a distinct breach of law therefore not consistent w arbitrary govt authority 2) total subjection of all classes to law of courts 3)indiv rights derive from court precedents Oliver Wendell Holmes: legal realis
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