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Law and Society Exam Review.doc

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Social Science
SOSC 2350
Tanja Juric

Law and Society Exam Review PART A: Definitions: - Chose 5 of 10 for 1 mark each (5 marks total) - Write approximately 1‐2 sentences (half a page) to describe and explain PART B : - Short Essay - Choose 1 out of three questions (10marks) PART C: Short Essay: - Choose 1 out of three questions (10marks) - proper essay format (i.e. intro, thesis, conclusion) - Write approximately 1‐4 pages (single‐spaced) The exam is comprised of 25 marks and is worth 25% of your final grade Part A: Abstraction: Analytical jurisprudence: - Law as it is -Alegal theory that draws on the resources of modern analytical philosophy to try to understand the nature of law. - H.L.A. Hart's was probably the most influential writer in the modern school of analytical jurisprudence Artifactualism: -Argues we can't understand the law without all the recognizing all the values - Law reflects certain values - Challenges legal positivism and because laws constantly being created and changed we can't say there "is" law - What the law "is" is not what it always has been because it has and always will change Bourgeois: -Asocial class - The upper class controlling the state - The capitalist class “The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations. It has cruelly torn apart the motley feudalism ties that bound man to his ‘natural superiors,’and has left remaining no other connections between man and man than naked self-interest, than callous ‘cash payment.” Charismatic Authority: -According to Max Weber, charismatic authority bases its claim to legitimacy on devotion to the specific and un- usual sanctity heroism, or exemplary character of an individual and the normative patterns that are revealed or or- dained. Illustrations of individuals with charismatic authority include Moses, Christ, Mohammed, and Ghandi Civil liberties: - Fundamental freedoms such as freedom of religion, expression, assembly, and association. Command theory of Law (Austin): All laws are commands; non- optional -The law is a coercive method of social control • - What is a command? - signification of desire and - ability to inflict evil or arm for non-satisfaction - (i.e. the law can impose sanctions) ‘Coming into Force’: - The process by which legislation, regulations, treaties and other legal instruments come to have legal force and ef- fect. The term is closely related to the date of this transition. Constitutional law: Law and Society Exam Review - Constitutional law; is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power, executive power, and what the limitations on those powers are Entrenched law: - Constitutional law is an entrenched legislation, meaning that it can only be changed by a specific amending, for- mula (only if there is agreement from the federal government and every provincial government Empiricism: - The theory that all knowledge is derived from sense-experience. Stimulated by the rise of experimental science, it developed in the 17th and 18th centuries, Ethnocentrism: - Is judging another culture solely by the values and standards of one's own culture. - The ethnocentric individual will judge other groups relative to his or her own particular ethnic group or culture, es- pecially with concern to language, behavior, customs, and religion. - These ethnic distinctions and subdivisions serve to define each ethnicity's unique cultural identity. - Ethnocentrism may be overt or subtle, and while it is considered a natural proclivity of human psychology, it has developed a generally negative connotation Formal Equality: Formalism: - The notion that disputes can be resolved by the neutral application of objective rules, which is where the word for- mal comes. Historical Materialism: - History is a struggle between classes - Historical materialism looks for the causes of developments and changes in human society in the means by which humans collectively produce the necessities of life. - Social classes and the relationship between them, plus the political structures and ways of thinking in society, are founded on and reflect economic activity Ideology: - Is a frame of thought it frames your actions and your beliefs -Away you that see world yourself and people around it - I.e. communism Judicial Activism: - Generally intended of negativism and that their own attitude is coming into their role of a judge. Guiding their de- cisions. -Ajudge not properly going through with a case according to the Charter. Jurisprudence: - The study and theory of law. Scholars of jurisprudence, or legal theorists including legal philosophers and social theorists of law, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Justiciability: - The claim must be “triable” in the court in question (e.g. family courts are competent to hear cases on child cus- tody, support payments, adoptions, etc.) Legal Instrumentalism: - Is the view that a scientific theory is a useful instrument in understanding the world.Aconcept or theory should be evaluated by how effectively it explains and predicts phenomena, as opposed to how accurately it describes objec- tive reality. Law and Society Exam Review Legal Positivism: - What law “is” rather than natural law which is what law “ought” to be - Historical and evolutionary interpretations of law that consider the legal and the moral to constitute two quite sepa- rate realms Legal-Rational Authority: - Legal realism: - The contention that judges make law, rather than find it. ‘Moral Entrepreneur’ Theory: - This theory attributes the perception of key events to the presence of an enterprising individual or group ‘Myth of Equality’: - It states everyones equal but in reality this i false - Barriers of the Legal Profession - Superimpose inherently biased institutions and social systems - Hide/ignore the pervasive nature of racism and sexism Mischief rule: - This rule for interpretation statutes addresses ambiguous legislation. it addresses the problem the statute was creat- ed to solve or “what mischief... the statute was designed to suppress, or what remedy is being advanced by it. Natural law: - Law based on the assumption that through reason the nature of human beings can be known, and that this knowl- edge can provide the basis for the social and legal ordering of human existence. Natural law is considered superior to enacted law. Negative liberty: - Freedom from interference by other people. - Negative liberty is primarily concerned with the possession of sociological agency -An individual's freedom from inhibitions of the social structure within the society such as classism, sexism, or racism Neutrality: - The state of not supporting or helping either side in a conflict, disagreement, Normative jurisprudence: - Law as it ought to be Perspectivism: - The view that all truth is truth from or within a particular perspective. The perspective may be a general human point of view, set by such things as the nature of our sensory apparatus, or it may be thought to be bound by culture, history, language, class, or gender. Since there may be many perspectives, there are also different families of truths. Positive liberty: - Is defined as having the power and resources to fulfill one's own potential as opposed to negative liberty, which is freedom from external restraint. -Aconcept of positive liberty may also include freedom from internal constraints. Positive policymaking: - Law that aims to create new types of relationships between groups or individuals. It often involves negative sanc- tions as well as positive rewards Proletariat: Law and Society Exam Review -Acitizen of the lowest class -Aterm used to identify a lower social class, usually the working class; a member of such a class is proletarian. - Originally it was identified as those people who had no wealth other than their children. - Term in reference to Marxism Proscriptive policymaking: - Law thats aims to prevent individuals from doing things that others in society oppose as being harmful or immoral. It usually involves negative sanctions Repressive sanctions: - In homogenous, undifferentiated society, a criminal act offends the collective conscience - I.e. the “totality of social likenesses” and punishment is meant to protect and preserve social solidarity Restitory sanctions: Rule of law: 1. No one is punishable except for a distinct breach of law 2. All classes must be subject to the law of the land 3. Individual rights derive from court precedents rather than constitutional codes Social facts: - The values, cultural norms, and social structures which transcend the individual and are capable of exercising a social constraint. - French sociologist Émile Durkheim, who put the term into broad circulation, states that in the study of society, "The first and fundamental rule is to consider social facts as things." - These "things" form the distinctive subject matter of sociology. Substantive Equality: Standing: - Only persons with standing are allowed to bring a dispute to court -Aplaintiff must have a “genuine interest” in the matter before the courts - Party has to demonstrate to the court sufficient connection to the issue and also show harm Traditional Authority: - Max Weber defines traditional authority as that which bases its claims to legitimacy on an established belief in the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order but, rather a matter of personal loyalty. The “rule of elders” is illustrative of traditional authority. Part B and C: - Know the main arguments of all of the assigned readings - How do the arguments fit together and compare? - What are the main points of contrast? - What are the issues that the theories address? - Be able to explain why these issues, and points of contrast are significant. Your grade will be based on how well you demonstrate an understanding of the material asked in the question -Aim to be clear, concise and direct. - Use the blank (unlined) sheets to brainstorm, organize your thoughts and create an outline. LECTURE 1 How does policy become law? - Three Distinct stages: 1. The Cabinet stage -Asponsoring department first prepares a memorandum to the Cabinet - memorandum Law and Society Exam Review - The memorandum is closely revised and consulted and then submitted to the appropriate Cabinet polcy committee, where memorandum is reviewed and prepares a report - For the policy to proceed the cabinet as a whole must ratify the report - Once Cabinet approves the memorandum the legislative of the department of Justice prepare a bill in both official languages - The draft bill is reviews and approved by the sponsoring minister as well as the Government House Leader, who ensure it is consistent with past Cabinet decisions - Government House Leader seeks authority from cabinet to approve the bill for introduction in Parliament 2. The parliamentary stage - Introduction and First reading: Introduced and assigned a number - Second Reading: Debated - Committee Consideration - Report Stage; the Bill, as passed by the committee is considered by the House. - Third Reading; Bill is debated a final time - If the bill has to have been passed by chambers, it is presented for Royal Assent 3. The coming into force stage; -Abill becomes an Act when it receives Royal Assent, but legislation is not automatically in effect - Laws come into forces after; once received Royal Assent, on a day specified in theAct, on a day set by the Gover- nor in Council Models of lawmaking: 1. Rationalistic: -Arational means for protecting the members of society from social harm - I.e (particularly criminal law) 2. Functionalist: -Abelief in or stress on the practical application of a thing, in particular - How do laws emerge? - Law are a “reinstitutionalized custom” - Law as a restatement of customs enforced by legal institutions -Acrystallization of custom, of the existing normative order - Laws are passed because they represent the voice of the people -Aconsensus perspective - Customs = norms or rules about the ways in which people must behave if social institutions are to perform their functions & society is to endure. 3. Conflict Perspective: - The origin of law is traced to the emergence of an elite class - Laws, as a social control mechanism, perpetuate the advantageous positions of the elites - Maintains unequal social & economic divisions 4. “Moral Entrepreneur”: - Usually not “moral” at all, but highly ideological - Laws as a means to create or maintain a particular “moral” constitution of a society - Law as a means of stamping ideology with “legitimacy” & “respectability” -Anti-miscegenation laws in US & in Canada, see “white woman’s labour law,” & the Indian Act. - To maintain “racial purity” & to secure economic rights & interests with the ruling group Organization of the courts: - Since Canada is a federal state, legislative powers are divided between two levels of government: federal and pro- vincial - Under the Constitution Act of 1867, provinces were granted power to deal with matters in their own jurisdiction, and also gave federal Parliament the authority establish “a general court of appeal for Canada” as well as “any addi- tional courts for the better administration of the laws of Canada.” - There are basically four levels of court in Canada: 1. The provincial/territorial courts; which handles the great majority of cases that come into the system, i.e. criminal offenses, family law matter (not divorce), traffic violations. Law and Society Exam Review 2. The provincial/territorial superior courts; the highest court at the provincial level which deals with all civil and criminal cases. Federal Court; Federal Court and Federal court ofAppeal are essentially superior courts with civil jurisdiction. Dealing with only matters of federal statute laws, i.e. patents, copyrights, etc. 3. Provincial/territorial courts of appeal; are provincial institutions that hear appeals of a decision of the pro- vincial superior court Federal Court of Appeal; Federal Court and Federal court ofAppeal are essentially superior courts with civil ju- risdiction. Dealing with only matters of federal statute laws, i.e. patents, copyrights, etc. 4. The Supreme Court of Canada; The highest court in Canada, and is the court of last resort where all cases must have appealed all other levels of courts. - LECTURE 2 Law in/and Society: - Many laws in Canada - Law has insinuated itself into all aspects of human life and endeavors - Rights-oriented country, not just in courts, but in legislatures, media and on streets - deterrence-oriented enforcement practices - intensely adversarial procedures - Canada surpasses the U.S. in level of regulations imposed through law - Chart of Rights and Freedoms accelerated this - Canada continues to grow and the legal profession has grown almost ten-fold in past 50. years. - There is an increasing supply of lawyers which can increase demand for legal service - Law brings critical information to light, removes regulations that interfere with justice - The reason for more litigation is because the increase in lawyers - Three general factors that may explain litigation: 1. Social development 2. Financial benefits 3. More legally actionable rights/remedies - Courts deal with each dispute through settlement - Court authoritatively resolves disputes, allows one another to here each side, etc. Law and Society Exam Review - Settlement vs. Resolution - Through settlements is made this does not mean a resolution is found - The law only settles the LEGAL components of the dispute, it cannot resolve the underlining conflicts - It processes rather than resolves disputes - Non-court methods resolving disputes is by; negotiation, mediation, arbitration, adjudication Professionalisation of law: - Romans allowed individuals to argue themselves - By middle ages, lawyer had three functions: agent, advocate and jurisconsult - (Attorney originally meant ‘agent’who acts/ appears on behalf of someone) - Advocate was trained in art of oratory and persuasion - Agent > solicitors and attorneys; advocate > barrister/trial lawyer • What’s the difference between an attorney and a lawyer? - Attorney = an agent who conducts business under authority of a written document - Lawyer = an officer of the court of law, authorized to represent the person/client - Solicitor = one who solicits, but does not act as an advocate in court - Barrister = presents the case in court • Ingredients of professionalization (Foote 1953) - Became full-time occupations - Training schools established - Local & national professional associations started and evolved - State licensing laws - Formal code of ethics established - *** collective assertion of special social status; collective process of upward mobility Barriers in Legal Profession: - The legal profession in North America historically has discriminated against women and ethnic and racial minori- ties - In 1970, only 1 in 20 lawyers in Canada was female. In 2005, 1 out of 3 practicing lawyers was a woman - Visible minorities continue to remain under- represented in the legal profession. In Canada, this is particularly true in relation to Aboriginal peoples. LECTURE 3 The Canadian Constitution and Charter: - Constitutional law; is the law prescribing the exercise of power by the organs of a State. It explains which organs can exercise legislative power, executive power, and what the limitations on those powers are - It is entrenched legislation, meaning that it can only be changed by a specific amending, formula (only if there is agreement from the federal government and every provincial government • What was missing? - NoAmendment formula - The ConstitutionAct, 1867 was an Imperial statute, and could only be changed by act of the U.K. parliament in Westminster - No individual rights - Limited constitutional recognition for the rights of native peoples • Canadian Bill of Rights (1960) - Before the Bill of Rights and the Charter - Courts tried cases where statutes were alleged to violate fundamental freedoms - SCC based its decisions on either the exclusivity of federal powers or the “peace, order, and good government” clause in s.91 of the BNAAct. Constitution Act of 1982: • -Added amendment formula -Added Charter of Rights and Freedoms -Added an explicit constitutional recognition of treaty rights for aboriginal peoples of Canada Law and Society Exam Review • Charter Controversies: - Charters new framework for interpretating the law in Canada - Was not clear what change the reformed Charter would make in Canadian Democracy - Criticism of Courts; Charter moves the focus from democratic institutions like Parliament 1. Parliamentary Supremacy: - Because we elect these officials they represent the citizens of Canada and speak on our behalf and have that au- thority we grant to them - Charter has s.1 & s.33 - Which allow Parliament & legislatures the ultimate power to limit (“reasonable limits”) & override (“notwithstand- ing”) 2. Judicial Activism - Judges read their own preferences into law - Judges maximize rights without regard to competing social values - I.e. rights of contract (a charge of the left) or privileging minority rights (a ch
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