SOSC 2350 Study Guide - Midterm Guide: Jurisprudence, Justiciability, Analytic Philosophy
18 Nov 2016
School
Department
Course
Professor
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
- Juispudee as a sujet oeed ith hual 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
find more resources at oneclass.com
find more resources at oneclass.com
• 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: iteposes disiteested ad o oeie thid pat the ediato etee 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, heuisti eatios: etal ostutios ... that aot e foud ahee i
ealit
• Diffeet est ase seaio ideas aout soiet e. Deoa, ipeialis, feudalis,
capitalism).
• Enable us to discuss social action
find more resources at oneclass.com
find more resources at oneclass.com
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 hae the last od
• If ot judiial ipopiet the oe-eahig
• 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 ad ot as it ought to e
• Embraces empiricism (theory of knowledge that is delivered from experience)
• Excludes morality from the definition of law
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Legal theory that draws on the resources of modern analytical philosophy to understand the nature 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. Constitution act, charter of rights and freedoms 1982: added amendment formula, added explicit constitutional recognition of treaty rights for aboriginal people of canada. S. 33 notwithstanding clause and s. 1 reasonable limits clause. 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.
