Law and Society
Separation Thesis : Many claim that in order to analyze the law, law and morality must be
separated, this is referred to as “the separation thesis” and is generally a defining characteristic
of legal positivism. Laws and moral values do not always coincide.
Legal Positivism: Legal positivists find law to be a human convention, something decided or
stipulated at a determinate time by individuals, for a particular purpose, it is an outcome of
decisions rather than the issue of something beyond human control. The makers of these laws are
people in a position of power. Law should be enforced regardless of morality and whether or not
justice was served. The question as to how good or bad the laws are has no bearing on their
status as laws. Conventionalist view of law.
Natural Law Theory: Belief that justice is integral to the law, basis of law is beyond human
control or arbitrary decision. It is something that binds human lawmakers irrespective of what
any individual group wishes or decides. Law is the outcome, not of human agreement but of first
principles or natural foundations, the value of which runs deeper than the usefulness or
expedience of conventions. Laws are discovered rather than made. Human makers of positive
law are constrained by objective considerations relating to the intrinsic nature of the laws,
considerations of justice that are external to the will of the legislators. If they ignore these
constraints they are not making law at all. Foundationalist concept of law.
One Juror Verdict Theory: Lawyers will look for a key juror who will be sympathetic to their
case and be able to influence the entire group. A juror‟s status and power in the external world is
believed to be mirrored in the jury group.
Challenge for Cause: Challenge of juror on jury panel, can be made on the grounds that a
prospective juror fails to meet the requirements of the provincial statute that governs juries (ex.
Person‟s occupation places them in exempted category) Also used to screen potential jurors
whose impartiality has been tainted by media coverage of a case.
Peremptory Challenge: Allows either the defence or the Crown prosecutor to eliminate a
prospective juror without a specific reason
Shadow Jury: Simulated juries used to gain feedback for lawyers on how to try their cases, able
to show lawyers the probable reactions of the jury
Plea Bargaining: An agreement by the accused to plead guilty in return for the prosecutor‟s
agreeing to take or refrain from taking a particular course of action Canadian Judicial Council (CJC): Federal body created under the judges‟ act, with the
mandate to "promote efficiency, uniformity, and accountability, and to improve quality of
judicial service in the superior courts of Canada". The Council is also mandated to review any
complaint or allegation against a superior court judge.
Narratology: The branch of knowledge or criticism that deals with the structure and function of
narrative and its themes, conventions, and symbols. The construction of a story within the law.
Legal Consciousness: How legality is experienced and understood by ordinary people as they
engage, avoid or resist the law and legal meanings. Understanding of the law that is often
imbedded in our culture, experienced through everyday life.
Moral panic: A disruption that threatens the social order of a society
Customary Law Punishment—payback: established pattern, law generally accepted by
members of a particular group/society, in Aboriginal customary law people are often physically
punished for their crimes
Sentencing Circles: In sentencing circles the court invites interested members of the community
to join the judge, prosecutor, defence counsel, police, etc. to meet within a circle, discuss the
crime and factors that may have impacted on its commission, sentencing options and strategies
through which the offender may be reintegrated into the community
Unified Court System: A unified court system consolidates separately run courts into one court
system that is centrally managed. Historically, countries with a judiciary based on English
common law have established a court system to handle cases under the national laws.
Legal Pluralism: The existence of multiple legal systems within one geographic area.
Culpability and responsibility as understood in both Western and Aboriginal law; Murder: in
western tradition- an offence against the state; in aboriginal custom- an offence against the
family/clan of the victim. Also, aboriginals see it as dishonorable to plead “not guilty” to a crime
which they committed.
Power of the State: In reference to the U.S. Constitution which curtailed the power of the state
as a whole by dividing it amongst the states of the US.
Treaty of Westphalia: Dictated provisions of state sovereignty, Principle of State Sovereignty –
political self determination, Principle of Legal Equality between States, Principle of Non –
Rule of Law: States that no one is above the law Bill C-41: Regulates disparities in sentencing to codify sentencing principles
Canadian Criminal Code: The Criminal Code of Canada
Law as a Technical Game: Complex rules: players, function, procedures, questions and
outcomes. Lawyers: specialists trained in identifying and applying rules, transform litigant‟s
complaints into legal disputes, judges also part of the technical game
Law as a Containment: Laws prevent people from committing certain acts
Medicalization: Much of what we see as abnormal now becomes medicalized. It is no longer an
aberration departing from the right path it‟s a medical problem requiring a medical solution
Medicalized vs. Moral Vocabulary: Shift from moral vocabulary (normal/abnormal distinction)
to medicalized vocabulary (normal/abnormal) distinction. Same process of distinguishing normal
from abnormal but different discourses
Section 16 of the Criminal Code: Defense of mental disorder – No person is criminally
responsible for an act committed or an omission made while suffering from a mental disorder
that rendered the person incapable of appreciating the nature and quality of the act or omission or
of knowing that it was wrong.
Common Law: Case law. Law made by judges, law common to all (precedent)
Heart Balm Law Suits: Suing someone based on breaking off an engagement, breach of
promise actions can be utilized to compensate the individual who has been injured from such a
Targeted killing: Targeted killing is the intentional killing, by a government or its agents, of a
targeted person, whom they may consider an "unlawful combatant", who is not in their custody.
The target is a person who is allegedly taking part in an armed conflict or terrorism
Drone War: First used in Bosnia and Kosovo in the 1990s, Unmanned aerial vehicles (UAVS),
also known as drones, are aircraft either controlled by „pilots‟ from the ground or increasingly,
autonomously following a pre-programmed mission, armed with missiles and bombs sent to seek
out those on secret hit lists. Laws of War (LOW) and Laws of Armed Conflict (LOAC): Geneva Convention 1949,
LOW: Part of International Body of Law dealing with war rules
LOAC: Part of International Body of Law regulating armed hostilities
3 Principles of LOAC 1) military necessity, 2) Distinction – lawful/unlawful targets and/or
combatants and 3) proportionality – minimization of collateral damage
Collateral Damage: In the case of targeting individuals thought to be terrorists, collateral
damage refers to pedestrians
International Criminal Court (ICC): The Hague, Netherlands. Tribunal to prosecute
individuals for genocide, crimes against humanity, war crimes.
Terrorism as a crime or act of war:
Criminal Law Paradigm:
- Law enforcement, find out if they are guilty
- Done through justice
- Due process, arrest them the right way try them the right way
- Individuals punished for their guilt
- Guilt must be proven in a court of law
- Due guarantees
- Killing is only permitted if used for self defense and/or immediate necessity of saving
- Right to kill anyone
- Not guilty of anything, guilt and innocence are irrelevant
- Deadly force against combatants is legitimate- irrespective of immediate threat level
- Legitimate Targets: combatants belong to an identifiable group-uniform, military bases
- Guilt is irrelevant
- No attempt to capture is needed Types of Law:
Substantive Law - consists of all laws that set out the rights and obligations of persons.
Procedural Law - outlines the steps and procedures involved in protecting and enforcing the
rights given under Substantive Law, i.e. the rules of court, etc.
Public Law – regulates the relationships between the state and individuals, or between states.
Civil Law - regulates the personal relationships between two private parties.
Criminal Law – state defined prohibitions with penalties
Constitutional Law - Laws establishing the make-up of government and the division of powers
between federal and provincial governments.
Administrative Law - governs the activities of administrative agencies of government.
Family Law - deals with the relationships between individuals living together.
Contract Law – covers disputes over legally binding agreements.
Tort Law - deals with private wrongs committed against one another, e.g. injury caused by
Property Law - deals with issues between individuals over land/renting
Labour Law - deals with all relationships between employers and employees.