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Midterm CP Reading Notes Sociolegal.docx

16 Pages

Social Science
Course Code
SOSC 1375
Olena Kobzar

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Socio Legal Studies: Midterm CP Reading Notes I. Meaning of Law: Traditional Interpretations  Law – most fundamental aspect governing social behaviour, understanding of constraints, pressures to stay within the law and consequences  Separation thesis – separation of law and morality, aspect of positive law theory  Assumed expectation: law approximates moral values o Reflects social norms of approval/disapproval o Function of criminal justice is to protect society  Assumed: law is equivalent to moral code, and what is legal is morally obligated or acceptable  ^ Not entirely true: law is less demanding than moral code  Laws = prohibitions in order to establish boundaries, less positive commands  Does not require some things which are considered to be morally obligatory (i.e. charity)  You can break the law without doing anything wrong – i.e. traffic tickets  Contemporary disagreements (i.e. euthanasia) suggests that law cannot reflect a moral code when no exact code exists – no general agreement  Further proof that law and morality don’t necessarily co-exist = institutionalized injustices (i.e. Nazi) o These laws are in sync with existing moral belief systems at the time – state and law coincide – no antagonism between law and state (moral perceptions + sense of justice)  Moral objectivism: justice rise above social belief systems – laws can be declared right or wrong based on natural principles  Moral relativism: As civilizations advance, law conflicts with new emerging beliefs and norms, and must become reformed to correspond to new moral beliefs  Positivist separation thesis: no necessary connection between morality and law.  Does not need to conform with moral standards to be valid o Does NOT mean that legal agents aren’t concerned with what is right and wrong o It means that there is a discrepancy between some agents/judges: should they strictly apply the letter of law even if morally counterintuitive, or are they for certain interest/promoting justice o Point of separation thesis is to most accurately describe reality of law  Justice described by consciousness, rationality, and moral sense, injustice only used when there is a purposive activity involved  Kinds of things that can be unjust fall into 3 categories: agents, actions, and states of affairs  (1) A “just” individual – now it is more common to talk of people who have varying degrees of a “sense” of justice  (2) Just/unjust actions  (3) Institutions – societies that have a just legal system, apply rule of law o Unjust society – burdens and benefits are distributed unequally – institution discrimination o Unjust institutions – suspend habeas corpus/pervert rules of evidence, fail to provide solutions to criminal wrongdoings, unjust laws (woman inequality), perpetuating formal injustice  Distributive justice – problem of how equality and inequality of status and entitlements of individuals are understood o Make conclusions about political equality  Corrective legal justice/civil justice – universal equality is assumed (contrast with distributive) o Like cases should be treated alike o Ideal of civilized law systems  Rule of law: legal impartiality o Requires formalization and depersonalization of justice  Moral principles must be formalized into strict rules – apply to act, NOT actor  Influence of power of administration and legal agents neutralized if judicial independence (law institution separate from government) is established – ideal of impartiality  Without equality of treatment, decisions would be ad hoc (arbitrary) and there would be no valid legal system  Corrective justice purpose – restore equilibrium – punish civil wrongs and criminal actions in proportion to the action  Justice (punishment) is delivered within the limits imposed – this is “justice according to law” i.e. no illegal punishments o Constraints to find decisions within the law  Problems of systemization of justice: strict application of general rules and impartiality = inflexibility = little adaptation for special cases that do not apply  We counter danger of overly severe justice by concept of equity (epiekeia)  Concept of equity – the prevention of unfortunate consequences of applying a general rule to a particular case which it does not, at a deep moral level, really cover  It is the idea of equity as a quality integral to law Does law consist of applying black letter law or spirit of law (more vague)  Is spirit of law either the justice that law is expected to come with, or the spirit of equity OR with rule obsessed black letter law  Common misconception: drawling sharp contrast between natural lawyer and their concern with justice and positivist lawyer disregard with these matters  Positivist lawyers may be strict about obedience to law but they do care if the law is just or unjust  Not just a theoretical dispute, but practice dispute as well  Represent 2 different ways of thinking – suggest different ideologies about ethical problems experienced in society o What is the origin of law?  Legal positivism: o Law is a human convention o An agreement or outcome of decisions o The makers of law possess enough power to impose laws on entire community o Individual and collective decisions are therefore the origin of law o Laws created may reflect some interested or none, some justice, or tyranny o Status of laws not dependent on whether they are good or bad o Conventionalist view  Natural law: o Law beyond human control and arbitrary decisions o Law is an outcome of natural foundations o Foundationalism concept of law  Law discovered and not made o Makers of positive law constrained by considerations of intrinsic nature of law – must consider justice o If they ignore constraints, law is not valid and there is no law  Two types answer two different questions: o Positive law answers authority and mechanism of power o Natural law answers authority and legitimacy o Positivists talk about nature of law o Natural lawyers talk about reasons that law is valid or binding  Difference: natural law is based on legal inherently moral principles, whereas positive law is expression of political decisions, and morals are irrelevant  Merits of natural law: natural limitations on what can be enacted by positive law  Legal agents cannot act contrary to natural justice  When they act unjust, power of justice and higher courts to rule decisions as illegal – unconstitutional  Natural restrictions or constraints exist on lawmakers  Natural law fully developed by St. Thomas Aquinas – influenced by Aristotle and Cicero o Developed idea that all legal decisions constrained by natural limitations within reason o Higher, timeless, natural law governs all human transactions o Aristotle affirms higher authority of equity – higher laws do not change, in contrast to positive laws which do not change o Permanent idea of law which continues through generations and societies o Laying down a law due to adequate authority is not sufficient to establish legality for Roman natural lawyers  “Law is the highest reason, implanted by Nature, which commands what ought to be done and forbids the opposite. True law is right reason in agreement to nature. To curtail this law is unholy, to amend it illicit. To repeat it impossible. o Natural law purpose – invalidate extreme abuse of legal power  Christianity/religious problem of natural law: suggests God may degree anything and it will be considered positive law whether good or bad – positive law challenge to theological tradition heated by William of Ockham  Christian natural law – purpose to promote and protect justice and just transactions between people (objective)  Laws that conform to nature are just because they embody moral principles  Highest moral precept/idea: “to do good and avoid evil”  Secondary precepts such as norms governing fair trade – natural value of self-preservation applied The Organization of Law  Individuals need lawyers to activate the courts  Lawyers hold intermediary position between disputants (people) and courts and transform complaints into legal disputes  Lawyers jobs is to provide advice about legal rules and how to apply them  Identify rules with special training and apply legal expertise  Determine whether dispute warrants legal intervention  Small proportion of lawyers in real litigation  Lawyers specialize in certain areas such as divorce or criminal  Some lawyers concerned with consumer interests or protection of environment  Second type of lawyer represents interests or organizations  Third type of lawyer – criminal defense lawyers involved in court o Defend client and perform certain roles o (1) Primary role is advocate – take measures within legal and ethical bounds to achieve a victory for the client while protecting their rights o (2) Act as intermediary between client and law – work through negotiation to secure best possible outcome from system o (3) Counselor – responsibility of the defense to give advice to the client as to what to expect and what happens to be in the client’s best interest  Contender of purpose of lawyers states: “Lawyer’s abilities determined by their fee” - connection between fee payment and exercise of legal expertise suggest lawyers manipulate clients and stage cases  In fact, lawyer dependent on good will of prosecutor and court  Fourth type of lawyer – “hired gun” – serve individuals who retrains them – concerned only with case in which they are involved  Judges – responsible for administration of the court and hold it up with impartiality and honesty  Judge alones interprets rules that govern proceedings  Autonomous decision makers  Accounts for 17% of those employed in legal courts in Canada  Judges freedom is limited due to role  Judges Act imposed – allows Canadian Judicial Council to access breaches of conduct  CJC – investigates conduct of federally appointed judges o Makes recommendations on judicial salaries and benefits, education of judges, developing consensus amongst members for administration of justice o Misconduct of judges results in execution o 2/3 of complaints have no merit  Judges – affiliated with party and activism  Most judges also lawyers – do not require training on being a judge before being appointed  National Judicial Institute – delivers judge education  Juries – more common united states, however still applied in civil and criminal trials in Canada  Canadian Charter of Rights and Freedoms – everyone has right to benefit by jury for crimes with potential 5 years + imprisonment  Accused may call upon jury for less serious offences  However, right to jury is not embedded in charter, and has been used less frequently  Provincial jurisdiction responsible for jury assembly  Certain occupational groups exempted – government workers, doctors, etc.  Criminal jury composed of 12 people  If jury cannot reach agreement, judge may call upon retrial and select new jury due to “deadlock”  Voir dire – a trial within a trial to decide upon what evidence should be used  Mostly used in common law countries  Prosecutor selects jury trial – jury more likely to prosecute, bring public attention to bad crime  Matters of argument involve issues of law and issues of fact  Participants interpret norms that may validate behaviour  Opportunity for reconstruction, description, interpretation of events – juries a
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