Study Guides (238,399)
Canada (115,129)
LS 101 (35)

LS101 Final exam notes

16 Pages
Unlock Document

University of Waterloo
Legal Studies
LS 101
Susan Brophy

1. Person as a metaphor • Fact: Not necessarily a human. Used as a metaphor. There is no one true definition of law (abstract concept), same is true for a legal person. Lack of clarity can be used as an advantage – allows judges to exercise certain amounts of discretion when it comes to applying the category of a legal person (when you want to recognize a human/non- human as a legal person) Category of legal person can be manipulated depending on the desired outcome. (can be narrowed or broadened) eg. I don’t want slaves to be recognized as humans. The idea of a person becomes expanded and metaphorical – cannot assume a biological link between a person and human (a legal person does not need to be a human. Eg. can be a corporation) If we take the meaning of a person and detach it from its biological link, this leads to the expansion of scope of law. •Issue: When courts interpret this metaphor further, they have a hard time defining and finding out what this metaphor really is. However, this lack of clarity can actually be useful since this allows judges to exercise discretion in defining this term and figure out what this metaphor represents. Another issue that arises is the connection between non-humans and their relation to human rights. •Relevance: It is relevant to this course because this raises the fundamental question of who counts for the purpose of law, which basically means why we need law. As law is an abstract term, same goes for this "legal person". It is very difficult to define. This basically shows how everything in law can be abstract and can be interpreted in many different ways. It is also relevant because it illustrates how we can now see how aspects of law that are meant to protect humans can now protect non-humans (corporations for example). This is also relevant because it leads to legal fictions and contradictions in law. The person as a metaphor has come about because of the conservative principle of law. 2. Law’s expressive function Facts: Law as a metaphor  leads to law’s expressive function. By expanding these relationships, law constructs the object of its power. In doing so, law expresses norms and values to society. This function of law shapes behaviour and reflects social ideals. The legal person becomes attached to all these new ideas and expectations (new standard of norm). Law’s power, ability to coerce, limits of law. Issue: The problem with law having this function is that it is subject to interpretation since there is no single way of shaping behaviour and norms. It is a construct; depends on the specific social setting within which these decisions are being made. Societies ideals are changing, evolving and varying. It can be contradictory (ambivalent) – might point to two different aspects. Eg. right now, humanity of slave is recognized but in ten years this may change and it is refused to recognize this. Through law’s expressive function, the “person” becomes a “legal fiction” – not necessarily provable, but is a construct. There is no factual evidentiary basis; legal fictions must be constantly proven. They are always open questions. Relevance: The legal person is an object of legal power. Through law’s expressive function, this “person” can be identified and is subject to a certain behaviour that is favourable to society as expressed by norms and values reflected in law. 3. Legal fiction •Fact: A legal fiction is a fact assumed/created by courts used to apply a legal rule that was not necessarily created for use in that way. Legal fiction is a legal construct. Through law's expressive power in shaping behaviour of people, that legal "person" becomes a "legal fiction". This does not exist in nature. It is highly contestable – can be tested or challenged. Product of judicial failings – judges themselves do not consider philosophical arguments when they’re deciding cases. If they attempted to develop a central thesis, and engage all the debates around idea of “human” then they would be forced to maintain a consistent view. Because judges do not do this, they are not forced to have a continuous non-contradictory view. Judges do not apply theories of law consistently (jurisprudence). Prone to contradiction (one judge may see it in one way, another judge sees it differently). Subject to interpretation. Open questions – there is no one answer that can be pointed to. •Issue: Prone to contradiction such as slaves, subject to interpretation such as corporations, product of judicial failings because they don't consider philosophical arguments and apply theories of law inconsistently, open questions •Relevance: Legal fiction makes us consider the power of judicial interpretation. Through legal fiction we question judicial discretion and inconsistencies. However these legal fictions are an object of social values and are subject to change through the changing ideals of the majority. This is relevant to see how legal fiction shapes our controversial laws. Due to law being set by precedents there are rulings that contrast each other and they seem inherently contradictory. This is because law is not defined by one undercurrent of philosophy but decided based on the precedent of past cases. Possibly a viewpoint on how judges may have too much discretionary power/ the conservative principle of law means that legal fictions cannot be remedied quickly. 4. Human nonperson Fact: One of three areas of contestation (human nonperson, nonhuman person and borderline human). Throughout history, some humans were never given a “person” status under the law. This includes slaves, women, immigrants etc. Although recognized as humans or part of the species, these people faced certain discrimination that lead to their own legal categorization, in which they received less rights and harsher punishments. There is a stigma around nonperson humans that suggests these humans have shorter capabilities and thought processes. Issue: This term comes from the fact that slavery raises fundamental issues of legal personality. Slaves are regarded as persons, but their treatment is as that of property. Judges tend to use legal personality in the limited number of situations in which they wanted to treat slaves as legal persons, but readily retreated to a narrower, citizenship- oriented notion of legal personality when the characterization better suited their purposes. These rules generally sidestepped the issue of legal personality by making it a felony to kill a slave, rather than by taking a position on whether slaves counted as persons for the purpose of the common law crime of murder. The slaves were also held accountable for their crimes as non-slaves. Slaves could still not enjoy the rights and privileges that came with being human Killing a slave is not punished as severely as killing a legal person (slave is considered property – human nonperson). What happens when a slave kills a person? Due process is limited Nonhuman person: Corporations given status as legal person gives them more protection and arguments in their favour (eg fundamental freedoms), granted all sorts of rights without necessarily the duty. Massive issue when it comes to accountability Relevance: The relevance of this categorization in history is to show the disparity and inconsistency of law. This further develops the idea of a “person” being a metaphor in legal context. To be a human is not necessarily to be a person, and to be a person does not require you to be human. This is also relevant to the “legal fiction,” because the way that slaves are treated depending on the context or desirability of outcome is a legal construct and does not actually exist. 5. Dehumanization Fact: The denial of the basic humanity of another, and their universal rights. This can involve infantilization or animalization of another human being. Central to Genocide. United Nations’ Universal Declaration of Human Rights (1948, WWII) Article 1: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” (note “reason” and “conscience” as defining features) Article 6: “Everyone has the right to recognition everywhere as a person before the law.” (note: universal right to be recognized as a “legal person”) Human rights help battle “the forces of dehumanization” By limiting the scope of “personhood”, much damage can be done Issue: All human beings are born free and equal with dignity and rights; by denying an individual of these rights, they are stripping them of their humanity. Relevance: Human beings have basic rights to retain their humanity and identity. This is enforced by the United Nation’s Universal Declaration of Human Rights from 1948. The end of the Second World War encouraged the implementation of this document. 6. Distortion of human rights Fact: Distortion of human rights is the idea that there has been a shift away from an acceptable, universal understanding of human rights. The reason for this distortion is the gap between the concept of a legal person and a living human. Issue: If human rights apply to persons, it is questioned whether they apply to corporations due to the power of large corporations. The rights of corporations are now seen as a first step in expanding human rights in general. For example, the gold mines in Latin America have legal barriers such as workplace safety and environmental protections that must be removed before a corporation will set up shops and hire locals. Rights gains already made: Intellectual property, free speech. Issue: 2 rights distortions that favor corporations: Distorted interpretation  Human rights were meant to protect people from injustice and harm. Using human rights as tools for corporate expansion and protection distorts their meaning. Distorted accountability  Problem of holding corporations accountable when they use human rights to exercise power. What tools are left to protect the people from corporate power? Consequences of Distortion  Non-human corporations exercise human rights against humans Consequences of confusion between “humanity” and “legal subject/person”  Cannot establish whether a person should be defined as metaphor or legal fiction. Relevance: This issue is therefore important due to the fact that non-human corporations exercise human rights against humans. As a result, this causes confusion between “humanity” and a “legal subject person” 7. Asset seizure Fact: Police can take property of anyone they pull over for a crime. Money seized goes to police department even if no charge if issued. “War on Drugs was never about drugs” Issue: it could essentially be considered stealing because it is someone else’s money, also it could be that the police take the money without reasonable cause and often even after people are found not guilty, their belongings (including any money seized) are not returned to them. People get stopped illegally and unconstitutionally  rights violation Asset seizure is also subject to possible racial discrimination, profiling, and random picking rather than careful investigations. This relates to the growing distrust citizens have towards their police as well as their corrupted nature. EX. g20 summit Relevance: These ideas pose a bigger question: are human rights more important or is maintaining a stable police operating system? If these arrests are arbitrary then why are assets being seized based on unnecessary power given to governments and their enforcement officers? These questions make us re-think the power of the state against citizens and how more human rights should be enforced. It is a major debate in society as to whether it is right to just be able to take someone’s possessions. Also another reason as to why more cops focus on drug crimes and less cops focus on crimes such as rape and murder. 8. “just say no” Fact: Started by Nancy Reagan, provided a more “motherly” approach to the war on drugs - Involved a lot of media with black individuals smoking crack repeatedly. Led to it being viewed as a fact - Mandatory minimums were implemented to deter individuals from selling drugs -> caused the population in prisons to increase (predominantly black) Issue: The negative attention poured upon the black community would not sit well. This would cause a public uproar amongst African American youth. As a result of this, trust between not only the black community, but other minorities could ensue. People who belonged to minorities may feel marginalized by the police and ruling class (whites). Relevance: It shows us this war on drugs has been around for a long time and it will continue to be around for a long time. It shows us that there have been many approaches implemented to attempt to fight this war on drugs, however many of the approaches (Just Say No being one of them) have failed. “Just Say No” is just one more approach that did not work, and in fact backfired, instead of doing what it was intended to do. 9. Disparity in sentencing Facts: Sentencing disparity is defined as "a form of unequal treatment that is often of unexplained cause and is at least unfair and disadvantaging in consequence. S.C determined that judges should be given back a certain power of discretion. Not held to mandatory sentencing. Differentiation between hard and powdered crack. Issue: Minorities are targeted by mandatory minimums 100:1, minorities who use crack cocaine get harsher sentences, which is a form of unfair treatment. Whites who typically use powdered cocaine get less harsh sentencing. Due to minorities being targeted by this sentencing method, it may lead to distrust between them and the police (which can result in public unrest). Relevance: contributes to the debate as to whether equality actually exists and makes people question the legal system. Also relates because it determines prisoner inflow & outflow. Reinstating judges’ discretion can help eliminate prison overcrowding and save taxpayer dollars. 10. Chain of destruction Fact: A process of destruction as it relates to America’s War on Drugs. Composed of 5 steps: (1) Identification – a group of people is identified as the source of the problems in society, and society thus begins to perceive the group of people as bad or evil. These groups of people’s lives become worthless. (2) Ostracism – society ostracizes the group of people through hate and isolation. Soon, they are forced to lose their home and are physically isolated from society. (3) Confiscation – the targeted group loses their civil rights and freedoms. Laws are changed to make it easier for the target to be searched and to confiscate their property. (4) Concentration – State begins to concentrate the target into prisons and take away their rights and family. (5) Annihilation – Can be indirect through withholding of medical care, food, or birth preventions. Can also be direct by physically harming or killing the target. No rehab systems in prison, so criminals come out and just relapse back into their old habits (higher recidivism rates) Communities rely on these private prisons (they provide jobs) They go to the city and then the city buys the land for the private prison companies to build a facility After that, the prison pays the city for renting on the land, and then you need people to go and fill these prisons (police officers, then they start looking for people who fit the mold for a criminal) Issue: The chain of destruction is very realistic in modern day society as it ostracizes and slowly annihilates specific groups that have been targeted by society. The chain of destruction takes away the chance of rehabilitation and rather reduces the target’s helpless state  can never truly be a contributing member of society. The chain of destruction is also costly as it throws too many people in jail that do not need to be there – waste of social resources and increases taxation. Relevance: Chain of destruction relates to the varying judicial approaches that attempt to restore criminals into society. These approaches include therapeutic jurisprudence and medicalization. 11.Paternalism Fact: Courts act as a parent, treating offender like a child. Taking away agency, which disempowers. Paternalism is just a different form of control. Issue: how can you expect someone to act as a responsible adult if you are treating them like a child and taking away their power? Relevance: It is possible that paternalism could lead to a greater chance of relapse, and it disables a person from becoming independent. This could also result in the criminal lacking important skills to successfully contribute to society, thus increasing their chances of poverty, which can lead them to crime (here begins a never ending cycle of incarceration and possible drug use) 12. Therapeutic Jurisprudence Fact: Therapeutic jurisprudence arose with problem-solving courts. This term is the basic position that criminal addicts actually have an illness. It is based on the position that you cannot cure an addiction with a harsh sentencing. So, as suggested by its name, therapeutic jurisprudence became a more therapeutic approach to dealing with criminal addicts. Therapeutic jurisprudence attempted to bridge punishment and treatment. There was an obvious failing in the traditional court system so problem- solving courts were created, with this treatment in mind, to respond to these failures. Issue: The main issue with therapeutic jurisprudence is that not every criminal addict gets to experience it. Although there are many criminal addicts who receive help on the basis that they are sick, there are many more criminals who are just thrown into a jail cell through the traditional system. This therapeutic jurisprudence is used through the problem solving court system however there are eligibility criteria for someone to enter it in the first place which means different criminals face different treatment and this leads to inconsistency. Relevance: Therapeutic jurisprudence is relevant because it sheds a new light on criminal behavior. Instead of criminals being looked down upon as bad and evil, they are looked at as ill, which makes people judge them differently. It is also relevant because it can be seen to have positive long-term effects such as less imprisonment rates and less of a costly strain on the overall justice system. Therapeutic jurisprudence might help criminals see themselves differently as well, which may be more of an incentive to ‘get better’, which therefore benefits society once they are placed back into society on their own. 13. Medicalization Facts: refers to the process of defining behaviour as a medicinal problem or illness and mandating the medical profession to provide treatment for it. Examples of this would include treating drug abuse and alcoholism as diseases, and viewing violence as a genetic or psychological disorder. Issues: Civil commitment or custody for treatment were used to carrying degrees depending on the changing perceptions of the political and medical communities with respect to the necessity to incarcerate or confine habitual users and serious addicts to deal appropriately with their behaviour. Relevance: Medicalization is relevant to the field of legal studies because it is yet another alternative approach to help deal with the War on Drugs that the world, especially the United States, is facing. It is an example of a softer approach to criminal addicts that is aimed at rehabilitation. Medicalization also proves that issues in law do not just stay within the legal system but in fact branch out to other sections of our society, such as health care. 14. Moralization Fact: Moralizing discourse is an exercise of moralization. It is a generalized moral pronouncement, which enforces a standard of behaviour. Moralization identifies bad acts and links bad acts to harm. With this it identifies grounds for moral regulation. Issue: Moralization can appear to be preachy, judgmental, and even self-righteous. It enforces a standard of behaviour that may not be favored by all members of society. Moralizing discourse can affect regulation, which in turn places the onus on victims to prove harm done as opposed to the legal system. “Boys will be boys, good girls have to be good girls” (slut shaming) Puts the responsibility on the female not to be harmed. Relevance: Moralization results in moral actions taken by members of society. It is a way to reform bad habits and clarify perceptions of harm. Purpose of moralizing discourse: Identify and control moralized practices. More than blaming or promoting good acts; want to change behaviour at fundamental level. New basis of self-control and self-monitoring (gets in your head). Legitimizes basis for regulation. Create panic about apparently “bad” acts 15. Harm Facts: harm is the way that we use moral discourse to determine bad acts. We determine bad acts by the specific and symbolic harm. Two types of harm: Specific harm (direct) or symbolic harm. Issue: We always have to look at who it affects, the moralized subject or the moralized object. In prostitution the man would be the subject and the act would be the object and consequence would be the harm to his wife. Relevance: e.g. The catholic church looks at bad acts, and in the
More Less

Related notes for LS 101

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.