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SOSC 2350 Exam 1 Study Notes.docx

8 Pages
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Department
Social Science
Course Code
SOSC 2350
Professor
Tanja Juric

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SOSC 2350 Exam 1 Study Notes TERMS Lecture 1 1. „Coming into Force‟ -How does policy become law? 3 distinct stages: The Cabinet stage, the Parliamentary stage and the coming into force stage -A bill becomes an Act when it receives Royal Assent, but legislation is not automatically in effect -Laws come into force in several ways: -When they receive Royal Assent -On a day, or days specified in the Act -On a day or days set by the Governor in Council (the Governor General, on the advice of the federal Cabinet). 2. „Moral Entrepreneur‟ Theory -A model on law-making -Laws as a means to create or maintain a particular “moral” constitution of a society -Usually not “moral” at all, but highly ideological -Law as a means of stamping ideology with “legitimacy” & “respectability” -To maintain “racial purity” & to secure economic rights & interests with the ruling group -Makes rational what is desired by an individual or group (can‟t debate it without seeming immoral or amoral -E.g. Indian Act: created to implement racial purity 3. Mischief rule -Non-binding precedent or persuasive authority in the interpretation of statute law: interpretative strategies -Mischief rule – attention should be given to the problem the statute was intended to solve” -Looks directly at the intention Lecture 2 4. Justiciability -Requirements for a dispute to reach courts -The claim must be “triable” in the court in question (e.g. family courts are competent to hear cases on child custody, support payments, adoptions, etc.) 5. Standing - Only persons with standing are allowed to bring a dispute to court -A plaintiff 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 6. „Myth of Equality‟ -Barriers to the Legal Profession -Superimpose inherently biased institutions and social systems -Hide/ignore the pervasive nature of racism and sexism -Seemingly neutral practices like the LSAT, 100% final exam, instruction -Computer generated matching system used in hiring (what criteria?) -„Racelessness‟ as a way to succeed? -Maximize success by minimizing connection with racial/ethnic background -Appeal to mainstream/dominant group id. -Mainstream people feel more comfortable when perceiving a „likeness‟ -(i.e. will this person „fit in‟ to the workplace environment?) -Must look, dress and act the part (or be mistaken for the „help‟) With success comes alienation and loneliness -Achievements disprove stereotypes, yet perpetuate „Myth of Equality‟ -Blindness to internalized dominance continues -Need more complete picture of women‟s experiences in legal profession Lecture 3 7. Constitutional law - “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”: Peter Hogg, Constitutional law of Canada -Governs relationship between power players (sometimes precarious) 8. „Entrenched‟ laws -Constitutional law 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). -Every province has a veto 9. Judicial Activism -“A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent” -Pejorative term for the misuse of judicial power -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 charge of the right) -Judges have “the last word” Lecture 4 10. Formal Equality - Everyone is equal and ought to be treated the same, regardless of circumstances 11. Substantive Equality - Equality requires treating people differently to account for the inequality of their situations 12. Rule of Law -One of the key tenets of liberal legalism -Govt‟s should be bound by known principles of law without distinction in their applications to particular individuals or groups -Legal reasoning should be sharply distinguished from moral and political deliberation and choice. (i.e. Fair, impartial application of law & justice) -In liberal system: -Locke‟s Second Treatise of Government (1690) -Montesquieu‟s Spirit of the Laws (1748) -The Federalist Papers (1787-88) by Madison, Hamilton and Jay -Also found in work of pre-liberal thinker Thomas Hobbes -Political liberalism: human society should be organized in accordance with certain unchangeable and inviolable rights Lecture 5 13. Jurisprudence - Legal theory (jurisprudence) is “a multi-dimensional interrogative process in the pursuit of a better understanding of the nature & functions of law” - Sample theoretical questions: -What is the nature of law? Is it liberatory, protective or prohibitory? -What roles/functions do legal institutions fulfill in society? -Does law represent the shared values of a nation, or does it only enforce the values of the dominant community? -How we answer these questions depends upon our knowledge, assumptions, normative models, & perspectives. - Ex: Does law represent the shared values of a nation, or does it only enforce the values of the dominant community? 14. Perspectivism - One‟s positionality, point-of-view - No such thing as pre-supposition-less decision-making - One must be aware of & self-reflect on the suppositions behind ideas and understanding of law in its relation to society. - Theories of social consensus would argue that law works to shape a society normatively, whereas theories that challenge hegemony (ie feminist or Marxist theories) would argue that law enforces the values of the dominant community. - Emphasizes the importance of perspectivism in discussing, analyzing & creating law. 15. Empiricism -Attempt to create a science of law (within legal positivism) 16. Legal realism -Law part of larger system; what judges do -Looks behind laws to see what judges do, not their intentions or what they say -Acknowledges law as a reflection of society 17. Artifactualism -Can‟t understand law without recognizing values reflected in it; not the Law (eternal), but the laws (constantly overturned because it draws upon changes and attitudes of society) -Interrogation of law: acknowledges it‟s its own culture -Clear rejection of positivism (law as science) -What law is isn‟t what it always was and what it will be Lecture 6 18. Natural law -Law is a matter of applied morality -Logical connection between law & morality -What law ought to be -Doesn‟t mean law and morality are the same, but there is no law unless it makes moral sense -Bigger than humans, therefore humans are subservient to it -Law is meant to navigate a route; a “map” we don‟t have the full frame of -Morality: fixed goals, and there is a moral duty to act in accordance with these -Not made by human beings (Divinely ordained? Law of universe?) -Universal & Eternally True -The same for all human b
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