Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
32 Cards in this Set
- Front
- Back
|
Theories of Law and Society |
- Classical Legal Theory *Natural Law * Legal Positivism * Legal Realism - Classical Sociological Theory * Durkheim * Marx * Weber - Contemporary Law and Society Theory * Feminist Legal Theory * Critical Legal Theory * Critical Race Legal Theory |
|
|
R. V. Latimer |
- Father mercy kills daughter |
|
|
Natural Law (Naturalism) |
- Belief in a higher system - Law should reflect this "natural moral order" - Link between law and morality - Law is essentially grounded in a "natural moral order" - Objective is in a moral principle - Can be discovered by natural reason - Ordinary human law is only to extent conforms to this - An unjust law is no law at all (St. Augustine) |
|
|
Core of Naturalism |
1. There can be no legally valid standards that conflict with natural law 2. All Valid laws derive what force and authority they have from natural law |
|
|
Rise and Fall of Natural Law |
Demise - Utilitarianism: everyone's good over one person Resurgence - Totalitarianism - Human rights |
|
|
Summary |
- Unwritten Law - Same for everyone everywhere - Not made by human beings - Reflection of moral or divine law -body of moral principles, recognized by reason - Naturally knowable moral law - Means by which human can rationally guide themselves to do good |
|
|
Legal Positivism |
• Emerged in late 18th and early 19th century (Bentham and Austin) • Most widely held view of law • Opposition to natural law • Law is not grounded in morality • Law is law, just or not • Utilitarian |
|
|
Legal PositivismBasic Premise |
• Strict separation between law and morality • Focus on what ‘is’ the law, rather than consider what ‘ought’ to be the law • Legislature empowered to make laws • Law is the outcome of a political process • A body of rules fixed and enforced by a sovereign political authority (John Austin)24 • A positive law is binding even if is supremely immoral • No principle of morality is legally binding until it has been enacted into law • That a statute is legally binding does not settle the moral question of whether we ought (morally speaking) to obey or disobey the law |
|
|
American Legal Realism |
• Began in US in early 20th century • Law schools and academics • Focus on day-to-day activities of lawyers, judges, and police • Proponents include Oliver Wendell Holmes, Roscoe Pound, Benjamin Cardozo, Jerome Frank • "Law in action" rather than "Law on the books"
|
|
|
Sociology of Law - Conflict Theory |
• constant conflict • legal system preserves status quo and maintains inequities • owners/works….haves/have-nots • laws reflect class driven values |
|
|
Classical (Orthodox) Marxism |
• Instrumentalism – Law as a tool that is manipulated by bourgeoisie – Law is the creation of ruling class – State and legal system serve bourgeoisie – State and institutions are tools that help control |
|
|
Structuralism |
• Reject notion of state as mere instrument of ruling – State as ‘acting on behalf’ of capital – Law is relatively autonomous – Political, ideological, economic • United by capitalist mode of production • Maintain socioeconomic order • Sets limits against bourgeoisie control |
|
|
Legitimate capitalism |
• Accumulation – Aid in the process of capital accumulation • Legitimation – Create and maintain conditions of social harmony |
|
|
What is the ideological nature of law? |
• Law in capitalist societies claims to protect and promote equality – Everyone is said to be subject to the law – Everyone is treated equally under the law •These are the fundamental premises for our legal system |
|
|
Emile Durkhiem |
• founding father of sociology • Collectivist perspective • Self-interest—social instability • Morality, religion and law • Law as reflection of moral beliefs • Evolutionary logic |
|
|
Repressive vs Restitutive law Criticism |
• Overestimated repressiveness in pre-industrial• Underestimated repressiveness in industrial • Got the direction wrong |
|
|
What is Mechanical and Organic Solidarity |
Mechanical Solidarity - Similar Consciousness (M.S.) - (robotic everyone is similar) Organic Solidarity - Extensive and highly differentiated division of labor - Interdependence |
|
|
Summary |
• Natural Law- linked to morality, higher power • Legal Positivism-separation from morality, human-made, law is law • Legal Realism- day to day activities of CJS workers • Marx- means of production, class inequities • Durkheim- collective conscious, morality, solidarity |
|
|
Feminist |
- Gendered Component - Gendered implications of seemingly neutral laws - Not uniform-liberal, radical, post-modern - Women as rational • Challenge assumption of male authority • Erase gender based distinctions • Law written with MAN as its OBJECT • Challenge sexist assumptions |
|
|
Criticisms of Feminism |
• Benefit few elite women • Little to alter practical realities • View judicial system as relatively neutral space• Ignore different social, economic, racial, ethnic and political divisions |
|
|
Critical Race Theory |
• Move beyond rights analysis • Rejection of ‘colour blind’ approach to law • Experiences of oppression at centre • Duality of law • Racism as inherent part of society • Way law and legal institutions work to support system of progression and inequality |
|
|
Section 1 |
The reasonable limits that can be set to our rights - requires oakes test |
|
|
Oakes Test |
1) "an objective related to concerns which are pressing and substantial in a free and democratic society", 2) “proportionality test” • measures must be carefully designed to achieve the objective in question. They must be rationally connected to the objective. • impair "as little as possible" the right or freedom in question. • proportionality between the effects of the measures and the objective which has been identified as of "sufficient importance".7Fundamental |
|
|
Section 2 |
Our Freedoms (of religion, belief, choice, press, association, etc.) |
|
|
Section 3-5 Section 6 |
Section 3-5 - voting rights Section 6 - mobility rights |
|
|
Section 7 |
Right to life, liberty and security of a person R v. Morgentaler Charged multiple times with doing abortions For Women's right to Choose we looked over the Fetus But the moment the fetus is born it officially has all the rights R v. Hebert (1987) - arrested of armed robbery, exercized Right to counsel, and told police he didn’t want to make a statement, undercover police officer placed into cell with Hebert and made an incriminating statement unanimous decision that it is inadmissible The right to silence is of fundamental importance Your rights can't be undermined by police trickery |
|
|
Section 8-14 |
Legal rights/Rights of the accused |
|
|
R V. Askov (1990) |
- Tens of thousands of charges were dropped or stayed - Askov spent 34 before he came to trial (defense asked for stay because of the long delay) (6-8 months could be seemed unreasonable) - Since case there has been some latitude given - - Evidence fades as time goes on |
|
|
Equality Rights |
- Section 15 * Everyone is equal under the law * Formal equality - everyone is treated the same despite of differences * Substantive equality is understanding that not everyone is the same social and wealth and other difference's but even with those everyone is treated the same |
|
|
Weaterall Case 1993 |
- Allowed women (& men) to conducted searches in specific situation among other things in specific situations for the opposite sex - Important because judge put equality of women being able to get and keep jobs over the prisoners privacy concerns |
|
|
Section 24 |
- Evidence maybe excluded in cases where rights were violated - meant to deter police misconduct - Rv. Greffe no justifiable excuse for strip searches for traffic tickets, noreasonable or probable grounds |
|
|
Problems with the Charter |
1) Individual rights vs. group/collective rights 2) Not a social Charter 3) Expensive to mount Charter challenges 4) Should judges have power to make law? 5) Police critical of Charter |
