SOSC 1375 Study Guide - Midterm Guide: Legal Positivism, Restorative Justice, Doxa

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Published on 16 Apr 2013
School
York University
Department
Social Science
Course
SOSC 1375
Professor
Saturday October 13, 2012
Law Mid-term Exam Notes
- we are interested in the relationship of the law to society, both in the sense of how
social norms and values underlie existing laws and in how the law acts to shape
social interaction and social change
- law is socially embedded in institutions and the letter of the law may be much less
interesting than its reasons for existence
Shadow Jury
- technique used by lawyers in which they realize the jury often makes decision based
on empathy and not evidence, since the lawyers are disputing conflicting views on
the same matter
- Shadow juries, are simulated juries which give their reaction to the lawyer
- this helps the lawyer know what evidence they should use for specific points.
Peremptory Challenge
- allows the lawyer on either side to eliminate a juror without any specific reason; the
amount of jurors removed is limited to the case being heard
- This lets jurors remove people who they feel will not be sympathetic to their side of
the story
One Juror Verdict Theory
- lawyers pick one juror who they feel will be sympathetic to their cause and sway the
opinion of other jurors
- they accept the idea that this person’s status in the group will mirror their status in
society
Challenge for Cause
- the act of expelling a jury member for several reasons
- such reasons include: their job is on the prohibited list, or they may have heard of the
case and have preconceived notions of what they would do
- goal is to weed out impartiality
- there is no restriction on how many can be made in a case as long as it is made on
valid grounds
Plea Bargaining
- an agreement by the accused to plead guilty in return for the prosecutor’s agreement
to take or refrain from a particular course of action
- suggested by lawyer when there is no escaping the client’s guilt
- there are even 3 types of plea bargaining
Charge Bargaining: promise about the nature of charges being laid
Sentence Bargaining: involves promises about the ultimate sentence that may be meted
out by the court
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Fact Bargaining: involves promises about the facts that the Crown may bring to the
judge’s attention
Bill C-41
- passed in 1996 to reduce disparities in sentencing between judges and cases
- it suggests that the sentence should be proportionate to the gravity of the offence and
the degree of responsibility of the offender
- it also lays out the goals of sentencing: denunciation, specific deterrence, general
deterrence, incapacitation, rehabilitation
Sentencing Circles
- seek the appropriate justice for Aboriginal peoples- restorative justice which seeks
rehabilitation
- R vs Morin lets us know that they intend to restore balance and harmony in the
community
- Call upon the community members to join in the circle and discuss the matter at hand
- Criticized because they make the victim relive the experience
- Don’t promote Aboriginal justice since they are overlooked by the Government
- offences, which have minimum punishments above 2 years imprisonment are rarely
heard. Often only, offenders who are eligible for a suspended or intermitted sentence
it a short jail term with probation, make it before sentencing circle
- typically used as a sentencing court after guilt has been established
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. For example, healthcare reforms
Administrative Law - governs the activities of administrative agencies of government.
Family Law - deals with the relationships between individuals living together.
Tort Law - deals with private wrongs committed against one another, e.g. injury caused
by negligence.
Labour Law - deals with all relationships between employers and employees
Rule of Law- states that the law is necessary to regulate society, no one is above the law
and we cannot be governed arbitrarily
Common Law: law created through judicial decision (precedent)
Statutory Law: law created by parliament
Unified Court System
- this simply means that all level of the court are connected and are centrally manages
- this allows for great efficiency and predictability
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Law as a Technical Game
- Complex Rules: players (lawyers, judges juries), function, procedures (jury selection,
examination), questions, outcomes
Lawyers: specialist in trained in identifying and applying rules, transform the litigants;
complaints into legal disputes
- in the Palsgraf case the lawyer was specify to the legal dilemma: was the
employee negligent? Was the railroad negligent?
Judges: hear the case and determine who presents the argument, create case law through
their decisions
- Canadian Judicial Council (CJC) examines the complaints against judges, but
they can only remove the judges who are federally appointed: they must be
investigated and removed by parliament
- We don’t like to fire judges because if we fire them, then it would put their case
conclusions into disrepute
Separation Thesis
- this is the idea that the law and morality have no place together; the heart of legal
positivism
- laws don’t always coincide with moral codes
- this thesis does not mean that judges and legislatures are concerned only on legal
matters and should be quite indifferent to the moral rights and wrongs of the law,
it just means it wished to develop an accurate description of the reality of law
Natural Law Theory
- has its roots set in religious connotations
- this consists of laws which has never been distorted
- the law is the product of a rational mind
- laws that conform with nature are innately just laws since the embody moral
principles and prohibit action that are unjust in the sense that they are contrary to
the enjoyment to natural human goods
- laws should be concerned with private matter
- humans are good and the law should reflect this
- follows the foundationalist view: laws are discovered not made
Legal Positivism
- morality is not needed in the law obedience to the law is
- law is a list of rules made by the state, who doesn’t need consent, and it is better
for the entire common good to follow them
- role of the government is to prevent harm
- the idea of a law being good or bad has no prevalence to its status; this is the
conventionalist view
Legal Consciousness
- how we perceive the law and how we act in accordance to these beliefs
- often formed on the experience of legal processes and not the outcome
- there are 3 type of consciousness
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Document Summary

Shadow jury technique used by lawyers in which they realize the jury often makes decision based on empathy and not evidence, since the lawyers are disputing conflicting views on the same matter. Shadow juries, are simulated juries which give their reaction to the lawyer this helps the lawyer know what evidence they should use for specific points. Peremptory challenge allows the lawyer on either side to eliminate a juror without any specific reason; the amount of jurors removed is limited to the case being heard. This lets jurors remove people who they feel will not be sympathetic to their side of the story. Goal is to weed out impartiality there is no restriction on how many can be made in a case as long as it is made on valid grounds. Charge bargaining: promise about the nature of charges being laid. Sentence bargaining: involves promises about the ultimate sentence that may be meted out by the court.

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