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Midterm

SOSC 2350 Study Guide - Midterm Guide: Jurisprudence, Justiciability, Analytic Philosophy


Department
Social Science
Course Code
SOSC 2350
Professor
Annie Bunting
Study Guide
Midterm

Page:
of 8
Law and Society Mid-Term Review Notes
KEY TERMS
Jurisprudence
A theory or philosophy of law
Multi-dimensional interrogative process in the process of a better understanding of the nature
and functions of law.
Why do judges rule this way?
John Austin and Jurisprudence
Law as a fact
- Juispudee as a sujet oeed ith hual eated la posited la that does ot
refer to morals
1. Law is posited by a sovereign
2. Positive law takes the form of commands
3. Command = result of desire, command is backed by sanction
Analytical Jurisprudence
Legal theory that draws on the resources of modern analytical philosophy to understand the
nature of law
Normative Jurisprudence
Evaluate the law
What is the goal/purpose of the law?
What moral/political theories provide its foundation?
What is the proper function of law?
Bourgeoisie Law
Reflects the upper class interests in society
Does not reflect the common value of society
Bourgeoisie became the owners of production: the capitalist class
Marxism and Capitalism
Marxism = both a sociological approach and a political movement
Views society as divided by class conflicts
Social changes of Bourgeoisie arose from key changes in organization of economic activity =
overall changes in how society is governed
The law is an instrument of capital and serves the interest of the dominant class
Constitutional Law
Law prescribing the exercise of power by the state
Division of power: federal, provincial
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Constitution Act, BNA Act 1867
Made Canada its own country
Set out basic structure of Canadian government
Divides power between Federal and Provincial level of govt, ss. 91 and 92
Constitution Act, Charter of Rights and Freedoms 1982
Added amendment formula
Added explicit constitutional recognition of treaty rights for Aboriginal people of Canada
Limitations to the Constitution:
- S.33 notwithstanding clause and s.1 reasonable limits clause
Dispute Resolution
Mechanism to resolve dispute between parties
Negotiation: does not involve a third party; two party arrangement in which disputants try to
persuade one another/establish a common ground towards a settlement
Mediation: iteposes disiteested ad o oeie thid pat the ediato etee the
disputants. Mediation begins with the agreement that it is co-operation NOT competition
Ombudsperson: investigates and recommends. They can criticize, publisize and make
recommendations but they cannot reserve administrative actions
Arbitration: involves a third party but requires a final and binding decision be made for
disputants by a third party. More relaxed than the court process, it is rights-based as a civil trial
but the dispute remains private.
Adjudication: public and formal method of conflict resolution best exemplified by courts. Courts
have the right to intervene in disputed whether or not the parties want them to. Emphasizes
legal rights and duties of disputants
Grievance/PreConflict Stage, NAMING: situation that an individual or group deem to be unjust
and considers grounds for complaint
Conflict Stage, BLAMING: Involves only two parties (dyadic)> it is not de-escalated of resolved at
this stage
Dispute Stage, CLAIMING: characterized by involvement of a third party in a disagreement,
called upon as the agent of settlement
Civil Liberties
Types of freedoms/rights that individuals in society can exercise.
Protected by government interference
The charter of rights and freedoms
Freedom of religion, expression, mobility
Ideal Types
Utopias, heuisti eatios: etal ostutios ... that aot e foud ahee i
ealit
Diffeet est ase seaio ideas aout soiet e. Deoa, ipeialis, feudalis,
capitalism).
Enable us to discuss social action
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Weber and Ideal types
Weber distinguishes between four ideal types of social action:
Traditional Social Action: guided by customs and habits
Affective Social Action: determinted by the emotional state of the actor
Value rational action: Action based on value and morals, goals determinded ultimately by
values rather than rational calculation, but values are followed through rational mean.
Instrumentally Rational Action: Actions in which both the goal and means are rationally
chosen here you choose the most easily achieved means toward a logically-chosen end
(assumed to be improvement of your own social situation, more money, power etc.)
Judicial Activism
Judges read their own preferences into law
Judges maximize rights without regard to competing social values
Judges hae the last od
If ot judiial ipopiet the oe-eahig
Judges political views and believes effect their ruling
Making a decision without precedence
Justiciability
Justiciability means that conflict is viable to trial and courts
The court must be mandated to provide a remedy, *jurisdiction of particular courts vary.
Ex. Family courts (provincially constituted) responsible for hearing cases involving custody,
support obligations and adoptions . Provincial Small Claims Court are responsible for civil cases
involving small amounts of money, although some may hear cases up to $25,000.
Justiciability refers to a real and substantial controversy that is appropriate for a judicial
determination- furthermore in some instances, the courts may not be authorized to interve in
certain types of disputes.
Formal Equality
Everyone is treated equal before the law and ought to be treated the same regardless of
circumstance
Lady Justice
Substantive Equality
Equality requires treating people differently to account for the inequality of situations
Legal Positivism
Based on the simple assertion that the proper description of law is a worthy objective and a task
that needs to be kept separate from moral judgements
It is a view that a descriptive or at least morally neutral theory of law is both possible and
valuable
L as it is ad ot as it ought to e
Embraces empiricism (theory of knowledge that is delivered from experience)
Excludes morality from the definition of law
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