SOSC 2350 Study Guide - Midterm Guide: Legal Positivism, Jurisprudence, Civil Liberties
Course CodeSOSC 2350
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Law and Society Midterm Notes
Judicial activism: judges inadvertently apply their own beliefs in their decisions "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‖ Ex. Institute for Canadian Values, Executive
Director and Director of Policy Development, Joseph C. Ben-Ami called a ruling by the Ontario Court of
Appeal (that a child can have three parents) "unnecessary" and an act of "naked judicial activism"
Moral Entrepreneur Theory: (Vago) One of the four different models of lawmaking. Laws as a means
to create or maintain a particular moral constitution of a society, Law as a means of stamping ideology
with ―legitimacy‖ and ―respectability‖
‘Coming into force’ : A stage of a bill, a bill becomes an Act when it receives Royal Assent, but
legislation is not automatically in effect. Laws come into force in several ways: royal assent, day specified
in the bill, on a day set by the governor in council ( The governor general on the advice of federal cabinet)
Justiciability : 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.). Certain courts have jurisdiction over
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 how it causes them harm.
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.
Entrenched law : Law that 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 provincial government must agree, each province has a veto. This is significant
because it ensures that the law is real, constant and reliable.
Rule of Law : No one is above the law. The law needs to be fair and impartial. A cluster of principles,
practices & institutional arrangements whose purpose is: To constrain the exercise of governmental
power, To serve certain broad social goals (eg. individual liberty, democracy, equality, effective rule),To
help realize an effective social contract in which a political community is able to effectively govern itself.
Formal Equality: (Federalist papers) Everyone is equal and ought to be treated the same, regardless of
circumstances ex. Brown v. board of education - segregation
Substantive Equality : In contrast to formal equality, substantive equality requires treating people
differently to account for the inequality of their situations ex. Free university education for aboriginal
people to make up for poor circumstances
Jurisprudence : It is the study of law and legal theory, jurisprudence is a multi-dimensional interrogative
process in the pursuit of a better understanding of the nature and functions of law. Asks: What is the
nature of law? What roles/functions do legal institutions fulfull in society? Does law represent the shared
values of a nation or does it only enforce the values of the dominant community?
Perspectivism : one‘s point of view, perspectivism is important in discussing, analyzing and creating
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Artifactualism : (Devlin) The idea that we can‘t understand law w/out recognising values reflected in it;
not the law, but laws. Concept that focuses on the need to take social context (ex. Gender, race, class,
ethnicity) into account when making legal decisions ex. R. v. Gladue, social context not taken into account
when judge made the decision. .
Legal Positivism: (Austin & Hart) What ―is‖ law not what it ―ought‖ to be, Judges should apply laws as
they are, they should not factor their own beliefs and opinions into legal decisions. Maintains that law and
society should be separate. Law is viewed as a system of rules. It also encompasses empiricism; a science
of law, a formula to making and applying laws ex. Precedent
Legal Realism : An early 20th century response to CLT. Law is part of a larger system; it is what judges
do. We must look behind the laws to see how the judges‘ intentions influenced them. Judges apply law,
factoring their own biases in to decisions, encompasses judicial activism
Natural Law : (St. Augustine, Plato, Aristotle) Natural law is not made by humans, it is a reflection of
divine and eternal law and is the same for all human beings. Emphasis on universality; fusion of law and
morality. Law exists and is universal, it is not created. An unchanging rule or pattern that it is our task to
discover. Exemplified by the CCRF
Empiricism: With reference to legal positivism, it is the scientific application of the law. Law can be
broken down to specific equations which can show how they came to be.
Analytical Jurisprudence: (Austin) Examining ― law as it is‖; "What are laws?"; "What is the law?";
"What is the relationship between law and power/sociology?‖. Judges should follow the exact wording of
the law to come up with a decision, judicial activism is forbidden. Judges are only meant to read and
understand written law, not create it.
Normative Jurisprudence: (Austin) examining law ―as it ought to be‖, evaluating legal theories, ―what is
the purpose of law‖ What is the proper function of law? What sorts of acts should be subject to
punishment? Judges must look at the intentions behind the laws through their own experience and
determining what out to be instead of what is. When written law does not cover specific situations, judges
must use their own discretion.
Command Theory of Law: (Austin) All laws are commands; non-optional, Law is a coercive method of
social control. Commands must have a certain pedigree in order to be legally valid, it matters who issues
the commands. A sovereign is the only legitimate source of commands.
Formalism : (Mill) Notion that legal rules form a consistent and complete whole from which the answer
to any legal question can be logically deduced simply by discovering the applicable rule and applying it to
the facts of the case. Any legal question can be deduced from law. Judicial reasoning can yield
determinate legal results, we can see why they apply laws in accordance to the rules. There is a separate
realm of law and everything will follow in its accordance
Abstraction : The law should operate at a high level of abstraction that excludes consideration of the
social context. By remaining abstracted it does not adhere to any particular culture or set of norms which
leads it to be fair. The law is broad enough to be applicable, but stipulates details enough the be relative.
Neutrality : (Mill) legal principles and law aren‘t based on any particular group‘s conception of good or
moral, this is a goal of law, not a reality, there is a group influencing the law in particular as law is
created. Laws are obviously are not culturally neutral, they aim to be neutral
Negative Liberty : (Berlin) The freedom from coercion, or interference with, individuals‘ private actions,
by other people. (i.e. freedom in the inverse; free from, not free to do). Mill‘s ONLY understanding of
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freedom, which is insufficient, individual could contract/extinguish wishes (free?), Might be manipulated
by others and made to feel free.
Positive Liberty : (Berlin) Freedom to do (something), represents the ability to fulfill one‘s own potential.
This is a social liberal notion, that one allows a positive space for government to support individuals (eg.
Government can create the conditions that allow individuals to achieve their goals, so long as individuals
consent/ask for this.)
Legal-Rational Authority : (Weber) belief in the legality of enacted rules, consistent system of abstract
rules that have been intentionally established ―a system of consciously made rational rules‖. Relationships
seen as ‗membership‘ in an ―organization‖, individual right/duties as a ‗member‘ of the organization (i.e.
do not owe obedience to individual, but to impersonal order) Members equal before the law;
economic/social differences levelled.
Traditional Authority : (Weber) modelled on the relation between a ‗master‘ and ‗servant‘, fundamental
difference in social position/natural endowments (i.e. Social hierarchy justified by a ‗natural‘ order) based
on model of an ‗orderly household‘‘; natural participation & routine
Charismatic Authority : (Weber) devotion to exemplary character of an individual person (i.e. certain
quality not accessible to the ordinary person) authority only legitimate only if followers accept
claim/meaning, seen to have a calling which interrupts and challenges everyday routines. not bound to
intellectually analysable rules (supernatural?) inherently unstable authority; transcend life of the
household & society
Social Facts : (Durkheim) ―ways of acting, thinking, and feeling, external to the individual, and endowed
with a power of coercion, by reason of which they control him.‖ Certain structures in society are so
powerful that they control the actions of individuals and can be studied objectively, as in the natural
sciences. Social facts may be characterized by their ability to resist change. They have a coercive quality,
and their violation is met with some type of sanction, or at least some type of resistance. Ex. Laws,
Repressive Sanctions : (Durkheim) Consists ―essentially in suffering, or at least in some disadvantage
imposed upon the perpetrator of a crime. Their purpose is to hurt him through his fortune, his honour, his
life, his liberty, or to deprive him of some object whose possession he enjoys‖ (Durkheim, p. 37).
Punishment, serve as an example of what to do or not to do.
Restitutive Sanctions : (Durkheim) Does not necessarily imply any suffering on the part of the
perpetrator, but consists merely in restoring the previous state of affairs, re-establishing relationships
which have been disturbed from their normal form. Pay dues to society to restore order.
Historical Materialism : (Marx) History is a struggle between classes. Historical materialism looks for
the causes of developments and changes in human society in the means by which humans collectively
produce the necessities of life. Questions who has been the owner of wealth throughout history.
Proletariat : (Marx) This refers to the working class. Did not possess property, were underpaid and
overworked. Created a class struggle with the bourgeois who had economic power.
Bourgeois : (Marx) The law acts on behalf of the capitalist class (the bourgeoisie). Bourgeoisie rose from
oppressed class under feudalism to become dominant. Property owners, owners of wealth
Legal Instrumentalism : (Marxism) Sees law as an instrument that protects the interests of the
bourgeoisie but law is also used to protect them in ways of property and criminal law, not just
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