1. Describe the notion that “law is a human process”. Give 2 examples to support the
• Based on SocioLegal Approach. Interdisciplinary study of law in
• Dependent and contextualized
• Law is a social product – a complex of activities of real ppl with
socially shared and produced, but individually carried out, legal
and nonlegal ideas, beliefs, motivations and purposes
• Depends on political, economic, geographical, institutional,
historical, and social aspects
• Part of social justice concept – an ongoing relationship
• Look at law and society together
• Issue: gender, class, & racism – blunt regulations discriminating
the marginalized groups in the past
• Examples from Backhouse’s “What is Justice?” article:
Regulations banning women from all direct control over
legal systems (voters, legislators, coroners, magistrates,
judges and jurors).
Indian Act – “Indians were not entitled to be identified as
They were denied the franchise & their traditional
governance structures were supplanted by band elections.
Denied access to employment, housing, and public services
for LGBT groups. Also denied the right to marry, to form
families with children & defined their sexual behaviors as
• Sexual Sterilization Act – Caulfield & Robertson’s article on
Eugenic Policies in Alberta 2
2. What does it mean to say that “we are all subjects of law, but we are not all
subjected to law in the same ways”? Give examples.
• Legal Hegemony – a system of order/dominance based on power
relations between individuals/groups based on perceptions of
supremacy & inferiority. Based on the assumptions about
• The assumption that law is built based upon specific hidden values,
to reflect a particular groups – hierarchies & hidden transcripts
• Law is unable and unwilling to recognize ppl’s differences –
categorization and order
• Dominant group (lawyers, judges) who create the law tend to
benefit from the way it works – power, protection, privileges
From Ewick and Silbey’s article on “Conformity,
Contestation, and Resistance: An account of legal
consciousness” – Millie Simpson’s case.
“to get justice, the poor black woman needs a rich white
ordinary ppl vs. lawyer point of view, Blackpoor women
vs. Whiteeducated lawyer
Special treatment for those who are in the
“superior/dominant” groups – White, male, nonimmigrant,
English/French speaking, professional, welleducated, aged
between 3560 – Backhouse’s article
3. Identify 4 fundamental aspects of the Official Version of Law. Give an example of
a critique of the OVofL, as provided by one of the course authors.
• Fair, neutral, objective, and predictable 3
•Autonomous and majestic – it sets its own guidelines and not
influenced by anything else (politic & economic) & beyond the
failing of ppl
• Should apply to everyone. Treats everyone equally the same.
Above anything else must be value free.
Aim to promote and protect justice.
• Examples from Tamanaha’s article “A holistic version of the socio
Official Legal systems have a tendency to try and supplant
local systems – limited and contained by the very
conditions of its success. It doesn’t represent the attitudes
and concerns of the local ppl. The law in operation is
always a compromise between lawyers’ law and parochial
notions of legality
OvoL rarely able to dictate their terms (and regularly don’t
even try). The center of gravity lies with the regulatory
orders circulating in the social realm – ignored by ovoL.
Have significant consequences for the local normative
systems, some which are unintended & unpredictable.
Courts are passive & don’t control what is brought to them
– most disputes are not solved through legal means, only a
small fraction of cases filed are actually heard – courts can
be remote, overburdened, & extremely slow. Courts can
cause disputes, law relies upon cooperation (or lack of
resistance) for the bulk of compliance & a substantial
aspect of the social manifestation of law is about symbols
4. What is legal positivism? How does it relate to the OvoL? How can it be
• Legal positivism – focus on facts not values. 4
• Separation from morality. Fair & impartial. Neutralvalue free
• OvoL is built based on the notion of legal positivism
• Critique: doesn’t affect everybody in the same manner.
Judges (and law enforcement officials) may sometime practice
their own stereotypes unconsciously to the marginalized group
(colored, LGBT and disabled ppl).
• Fairness and justice could mean differently to different ppl
5. What is the basic premise behind Ewick & Silbey’s theory or legal consciousness?
Which aspects of the OvoL does it challenge?
• Legal consciousness – the ways in which ppl make sense of law &
legal institutions, that is, the understandings which give meaning to
ppl’s experiences & actions – local, contextual, pluralistic, filled
with conflict & contradiction
• Law from ordinary ppl perspectives
• Law is a particular recreation, or reinstitunalization of social
relations in a narrower, relatively discrete & professionally managed
context – How and by whom it is used & when and by who it is not
• Social groups of all sizes and types emerge out of the aggregated
actions of individuals
• Challenges OvoL rigidity and resistance to change – the basic notion
of “impartial and fairness” at times could be at stake by failing to
recognize law from ordinary ppl’s point of view
6. Why is legal history important? Given an example, from course readings, of an
instance where legal history helps us to see “who we are” as a society in the
• Law is shaped and influenced by social and political trends, it is
imbedded in our society to help us understand the world around us –
it is both contingent & autonomous [social constructionism]
• Law as a cultural artifact, where it tells the story of a certain society
• An integral part how we govern/structure our lives – acts as a social
interaction/institutions for society
• Keeps changing and evolving as society evolves.
“Fallen women” in the past based on social construction
and social control. Failing to conform society’s standard –
appropriate womanhood based on Victorian Ladylike
behavior. Nowadays, what was seen as
improper/undesirable behaviors are considered as normal
behaviors for women (smoking, drinking, contesting men’s
point of view) – from Carolyn Strange’s article
Eugenic Policies in Alberta – Caulfield & Robertson.
Alberta Sexual Sterilization Act 19281972 considered ppl
with mental illness as dangerous and not perceived as fully
human. Along with prostitutes, foreigners (Eastern
Europeans), poor ppl, retarded ppl, and ppl who are seen to
be criminals. To control how ppl reproduce to have a
certain type of society. Nowadays, it is illegal to
discriminate ppl based on their race, gender, sexual
orientation, social status and disability.
7. What is the relationship between judicial/legislative “blindness” and systemic
discrimination? Give an example from the readings.
• Judicial blindness – the notion not to discriminate ppl based on
their race, gender, sexual orientation, etc. Based on the idea of 6
fairness and equality. Everyone is the same above the law. Derived
from the image of Lady Justice.
• Systemic Discrimination – based on prejudice and stereotyping –
the effect of a biased written law to the society.
• Relationship ▯the systemic discrimination proved that equality
before the law is only an utopia, in practice discrimination is
People with mental disability are often ignored by the legal
system, trying to make the equal with everybody else. Often
creating an even more prevalent problem of discrimination in
Backhouse’s article – many Canadians believe the polite way
to respond to racial diversity is to pretend we live in a
“raceless” society, and that is worse to be called a racist than
to be one.
Carolyn Strange – The Criminal and Fallen of their sex – the
establishment of Canada’s first women’s prison 18741901.
Built female prison based on the idea that women and men
are different in nature – their sensibilities, minds, souls were
distinct. Focusing on female’s maternal values, seen as less
dangerous as males. Prisons as a reformatory instead of
“punishment”, specially constructed & administered to
reform only those women deemed capable of improvement.
Unfair to men since there’s no “true punishment”.
Based on social hegemony and categorization of normal
behavior – based on Victorian era values
8. What does it mean to understand a particular legal policy, political event or social
concept as a “cultural artifact”? Give an example from the readings. 7
• Cultural Artifact helps to paint a picture of “who we are”.
Artifact – an object remaining from a particular human institution,
period, trend or individual
• It shapes us as society and individuals. Cultural artifact looks at
legal system as an ongoing sociolegal system – structures and
practices within/across particular contexts – political, institutional,
historical, social, experimental, economic, & geographic/regional.
Not a fixedrigid set of values.
The notion of “fallen woman” described in Strange’s article
– the term changes overtime, what considered to be
undesirable behaviors for women (smoking, drinking, etc)
are now considered as normal behaviors.
9. What does it mean to say, “law is narrative”. Give an example of a legal narrative
from the readings. Explain why/how it illustrates a dominant societal belief or
• Narratology – theory and method of studying the content &
structure of narratives/stories, and ways that these affect our
perception and behaviors.
Perspectives of telling: who sees and who tells, the explicit/implicit
relation of the teller to what is told, the varying temporal modalities
between the told and its telling.
• Language that the law use within and about law. Law as a vehicle
of social change. Unpack ideas & structures used to make sense of
• Examples: Nanabush v. Deer (John Borrows: With or Without You:
First Nations Law ) and Bumper v. North Carolina
(Peter Brooks: Narrative Transactions: Does the Law needs a
10. What does it mean to say that the OvoL is socially constructed? What kind of
“justice” does it seek? What is an alternative vision of justice?
• The law itself is always changing, OvoL gradually changes its
regulation as society evolves. It can be said that law is rather
context specific and influenced by many interdisciplinary
approaches (economic, history, social, political, etc).
• Social construction – a sociological theory of how knowledge is
produced, and how particular phenomena (such as law) develop in
a particular context.
• Although it seeks to have a better justice, OvoL doesn’t always
work in reality. It often ignores equal justice for minority groups
(the poor, mentally ill, nonEnglish speaker, and those with
substance abuse addiction).
• Alternative: socioeconomic analysis – producing either freedom or
restriction and confinement for society at large.
11. What is legal pluralism? Why is it a controversial idea for many?
• Legal Pluralism – the existence of multiple systems of legal
obligations within the confines of the state.
• Force us to confront the images/stories we hold about “ourselves”
• Issues: social citizenship vs. formal citizenship – not exactly
participating in a meaningful manner as a citizen. Need to be a true
meaningfully diverse society.
• It challenges OvoL aspect of informal rules since OvoL focus only
on one specific set of law. Also challenges freedom consciousness.
OvoL is rigid and fixed, hard to change. Based on Western set of
values and emphasize on the idea of private property and
• The idea that only one rule could work, and if there are more than
one rules ▯chaos.
• Examples: Indigenous Law vs. Canadian Common Law
1. In explaining John Borrows, “With or Without You: First Nations Law in
Canada,” explain how/why Indigenous Law relies upon story telling.
• Aboriginal Law focuses on a completely different set of values
than Canadian Common Law. They focus on the order of nature
and reciprocal relationship between animals, nature and humans.
They believe that ppl have attachment to the Earth and vice versa.
• There’s no formal mechanism in their legal system. They rely on an
informal system of story telling, passed from generation to
generation. Decisions are made based on consensus – agreement of
society and there’s no commercial way of life.
• They believe that men and women are equal. There’s no singular
authority in their society and everyone is encouraged to participate
in story telling. They see story telling as a validlegitimate version
of law within their society. They value respect and transparency in
honoring their legal system. It is a stable yet flexible and creative
way of preserving their values and principles to the society.
• They developed spiritual, political, and social customs and
conventions to guide their relationships and these became the
foundation for many complex systems of their law. Their law
originates from these values expressed through teachings &
behavior of knowledgeable & respected individuals and elders.
These principles are enunciated in the rich stories, ceremonies and
traditions of the First Nations.
• First Nations stories are interpreted by knowledgeable keepers of
wisdom and presented in a manner that fits a particular dilemma. 10
The stories are regarded as authoritative by their listeners, and there
are natural, moral and cultural sanctions for the violation of their
instructions. They use an oral tradition to chronicle important
information, which is stored and shared through a literacy that
treasures memory and the spoken word. Attempt to convey
contextual meaning relevant to the times and the needs of the
listeners ▯allows for a constant recreation of First Nations systems
• Guide ppl in resolution of disputes.
2. Critically analyze the concept of the “fallen woman” as a cultural artifact.
• Fallen Woman – a term based on social construction to describe
women who failed to adhere the standard of Victorian Lady set by
the society. The idea was that a woman should be elegant, poise
and gentle. It is a way to regulate and control society.
• Cultural Artifact helps to paint a picture of “who we are”. It
shapes us as society and individuals. An object remaining from a
particular human institution, period, trend or individual.
• The term fallen woman has changed and evolved over time, as
society strives to a more modern era, it slowly changes the
expectation of women. What constitutes to be undesirable
behaviors nowadays might be considered as “normal”. Normality
itself changes as society evolves. Cultural artifact helps us to tell
how society changes over time, how one term could change
dramatically as the world changes.
3. Explain, using at least two examples, Brooks’ argument that law does indeed
need a narrative analysis.
• Narratology – theory and method of studying the content &
structure of narratives/stories, and ways that these affect our
perception and behaviors. Distinguishes between events in the 11
world & the ways in which they are presented in narratives. Might
be tainted by narrative glue – the stuff we fill in between the facts
to build a narrative & stock narratives – stories we already know –
myths, stereotype and prejudice.
• It pays attention to the parts of narrative and how they combine in a
plot, to how we understand the initiation and completion of an
action, to standard narrative sequences (stock stories), and to the
movement of a narrative through a state of disequilibrium to a final
outcome that reestablish order.
• Narratology also studies perspectives of telling: who sees and who
tells, the explicit/implicit relation of the teller to what is told, the
varying upon temporal modalities between the tld and its telling.
Narrative is inevitable & irreplaceable – not an ornament nor not
translatable into something else. Helps to understand the reach of
narrativity in human consciousness, but also to “denaturalize”
narratives, to show their constructedness, how they are put together
and what can we learn from taking them apart. What matters the
most is how narrates/listeners – judges, juries – hear and construct