SOSC 1375 Study Guide - Midterm Guide: Canadian Judicial Council, Narratology, Legal Positivism

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Published on 18 Apr 2013
School
York University
Department
Social Science
Course
SOSC 1375
Professor
Socio Legal Studies: Midterm CP Reading Notes
I. Meaning of Law: Traditional Interpretations
Law most fundamental aspect governing social behaviour,
understanding of constraints, pressures to stay within the law and
consequences
Separation thesis separation of law and morality, aspect of positive
law theory
Assumed expectation: law approximates moral values
o Reflects social norms of approval/disapproval
o Function of criminal justice is to protect society
Assumed: law is equivalent to moral code, and what is legal is
morally obligated or acceptable
^ Not entirely true: law is less demanding than moral code
Laws = prohibitions in order to establish boundaries, less positive
commands
Does not require some things which are considered to be morally
obligatory (i.e. charity)
You can break the law without doing anything wrong i.e. traffic
tickets
Contemporary disagreements (i.e. euthanasia) suggests that law
cannot reflect a moral code when no exact code exists no general
agreement
Further proof that law and morality don’t necessarily co-exist =
institutionalized injustices (i.e. Nazi)
o These laws are in sync with existing moral belief systems at
the time state and law coincide no antagonism between
law and state (moral perceptions + sense of justice)
Moral objectivism: justice rise above social belief systems laws can
be declared right or wrong based on natural principles
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Moral relativism: As civilizations advance, law conflicts with new
emerging beliefs and norms, and must become reformed to
correspond to new moral beliefs
Positivist separation thesis: no necessary connection between
morality and law.
Does not need to conform with moral standards to be valid
o Does NOT mean that legal agents aren’t concerned with
what is right and wrong
o It means that there is a discrepancy between some
agents/judges: should they strictly apply the letter of law even
if morally counterintuitive, or are they for certain
interest/promoting justice
o Point of separation thesis is to most accurately describe reality
of law
Justice described by consciousness, rationality, and moral sense,
injustice only used when there is a purposive activity involved
Kinds of things that can be unjust fall into 3 categories: agents,
actions, and states of affairs
(1) A “just” individual – now it is more common to talk of people
who have varying degrees of a “sense” of justice
(2) Just/unjust actions
(3) Institutions societies that have a just legal system, apply rule of
law
o Unjust society burdens and benefits are distributed
unequally institution discrimination
o Unjust institutions suspend habeas corpus/pervert rules of
evidence, fail to provide solutions to criminal wrongdoings,
unjust laws (woman inequality), perpetuating formal injustice
Distributive justice problem of how equality and inequality of
status and entitlements of individuals are understood
o Make conclusions about political equality
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Corrective legal justice/civil justice universal equality is assumed
(contrast with distributive)
o Like cases should be treated alike
o Ideal of civilized law systems
Rule of law: legal impartiality
o Requires formalization and depersonalization of justice
Moral principles must be formalized into strict rules apply to act,
NOT actor
Influence of power of administration and legal agents neutralized if
judicial independence (law institution separate from government) is
established ideal of impartiality
Without equality of treatment, decisions would be ad hoc (arbitrary)
and there would be no valid legal system
Corrective justice purpose restore equilibrium punish civil
wrongs and criminal actions in proportion to the action
Justice (punishment) is delivered within the limits imposed this is
“justice according to law” i.e. no illegal punishments
o Constraints to find decisions within the law
Problems of systemization of justice: strict application of general
rules and impartiality = inflexibility = little adaptation for special
cases that do not apply
We counter danger of overly severe justice by concept of equity
(epiekeia)
Concept of equity the prevention of unfortunate consequences of
applying a general rule to a particular case which it does not, at a
deep moral level, really cover
It is the idea of equity as a quality integral to law
Does law consist of applying black letter law or spirit of law (more
vague)
Is spirit of law either the justice that law is expected to come with, or
the spirit of equity OR with rule obsessed black letter law
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Document Summary

Socio legal studies: midterm cp reading notes: meaning of law: traditional interpretations. Law most fundamental aspect governing social behaviour, understanding of constraints, pressures to stay within the law and consequences. Separation thesis separation of law and morality, aspect of positive law theory. Assumed expectation: law approximates moral values: reflects social norms of approval/disapproval, function of criminal justice is to protect society. Assumed: law is equivalent to moral code, and what is legal is morally obligated or acceptable. ^ not entirely true: law is less demanding than moral code. Laws = prohibitions in order to establish boundaries, less positive commands. Does not require some things which are considered to be morally obligatory (i. e. charity) You can break the law without doing anything wrong i. e. traffic tickets. Contemporary disagreements (i. e. euthanasia) suggests that law cannot reflect a moral code when no exact code exists no general agreement.

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