Chapter 10 Law and Justice PDF

Chapter 10 Law and Justice Introduction Societies operationalize their particular views of justice through their legal system. Traditional Jurisprudential approach to law: a rational, orderly system (science like) where specific legal questions always have a specific legal answers....

Chapter 10 Law and Justice Introduction Societies operationalize their particular views of justice through their legal system. Traditional Jurisprudential approach to law: a rational, orderly system (science like) where specific legal questions always have a specific legal answers. A system that dispenses justice in an unbiased manner, without favor or ill will (blind to race, gender, social status) A formal and coherent body of rules, doctrines, and principles concerned with the interpretation of acts and cases, legal decisions and judgements. Emphasizes life choices on the pathway to having conflict with the law Law as a Social System The law is a social structure that represents society. It reflects and informs interactions and relations between people. It is considered formal or procedural justice. Custom vs Convention vs Law Custom: a practical action based on convenience (holding a door for someone, sending flowers on a special occasion) Convention (often considered an unwritten rule): a practice/action taken based on a guarantee or commitment (having only one intimate partner, covering your mouth/nose when you cough or sneeze) Law: a practice that is externally guaranteed and expected ensuring compliance (assault, murder, drug trafficking) Theoretical Perspectives on Law Structural Functional Perspective on Law: a visible system of solidarity or social norms/culture. It controls, reconciles and mediates the diverse and conflicting interests of individuals and groups to maintain harmony. Conflict Perspective on Law: An instrument of control that serves those with higher power and class status. It enhances the conditions of inequality Symbolic Interaction Perspective: The meaning that we attach to behaviours and how they are considered in the law. (why some individuals are labeled as criminal and why others are not criminal). Shaped by society. Considers law to be a “living law” Theoretical Perspectives on Law Continued… Post Structuralist Perspective: The law reproduces gender, race and class inequality. Views jurisprudence as a reflection of dominant thinking about the social world. Judges are seen as perpetuating a particular kind of elitist politics in their decision making. Analyzes the language of law and its practices within society. Analysis of written law shows that the law is the social process through which inequality is perpetuated. The ways in which laws are both made and enforced, in the long run, protects the interests (economically) powerful groups in society. Theoretical Perspectives on Law Continued… Feminist Perspective: law is just an impartial and perpetuates inequalities. Law reflects the dominant perspective in society Largely written by men for men without taking into consideration the perspective of women. Neo-liberalism: Aims to reduce government involvement in private lives. Expanding the focus of legal justice to include an analysis of social oppression is an important component aligned with substantive justice. Individuals are not just rational actors making individual choices but as people who are living and functioning in a social system which contributes and impacts on their life and decisions, this takes into consideration social justice. Structure of the Court System Provincial Courts: Criminal and Civil Courts Civil courts include all issues that are not criminal Refer to the Figure – Canadian Court System Court of Appeal: When decisions are appealed from the provincial court they are heard here. Federal Court: hears and decides legal disputes arising in the federal domain including claims against the Government of Canada and matters in the federal domain (citizenship, taxation, immigration, copyright, patent issues) Quasi-Judicial Tribunals: handle specialized matters such as human rights complaints, occupational health and safety issues, collective bargaining/union issues. Supreme Court – highest court in Canada – judgements are binding for all other courts Legal Pluralism Recognizes the ordering of the hierarchical process of decision making but also identifies and studies the: inconsistencies, resistance and restructuring that occurs between the lived experience of people participating in the different levels of court/tribunals. The symbols of law operating in unofficial forums of dispute resolution incorporating the law of the people, are studied and document this way. (example the customs, conventions, and laws of Indigenous peoples in Canada) Criminal vs Civil Law The federal government has the official legal authority to decide what is or is not criminal (BNA Act). It is written in our Criminal Code of Canada Society through government determines what is harmful or undesirable and uses punishments/sanctions such as fines or imprisonment to enforce them. Civil law and civil cases are defined as everything that is not criminal Divorce/child custody Wills/Inheritance Wrongful dismissal from employment Some cases can be considered from both criminal and civil standpoint (example: assault charged under the Criminal Code, and sued in civil court for damages and loss of wages) Lawyers in Criminal Court Crown Prosecutor – must prove the guilt of an accused person beyond a reasonable doubt (moral or honest certainty in believing the person is guilty) In civil cases the plaintiff (the person with the complaint) need not prove beyond a reasonable doubt that the defendant (the person being accused) is guilty. Lesser burden of proof based on the balance of probabilities. – Is the allegation likely true. Defense Lawyer – the lawyer that defends the accused. Components of Criminal Cases Every crime has to have a physical element and mental element: Actus Reus – the wrongful act or conduct, consequences of the conduct and surrounding circumstances of the conduct Mens Rea – the state of mind or intent necessary to commit the crime/act, or foresaw consequences of the wrongful act. Can also relate to recklessness (foresees the possibility of a harmful outcome/consequence and takes the unreasonable chance that harm will not result) – What would a reasonable person have concluded? If either the actus reus or mens rea is missing then no crime occurred or has been committed. The Sources of Law The major sources of Canadian law include: The Constitution – Defines the powers and limits of powers that can be exercised by different levels and branches of government. It is the foundation of a country’s political and legal system. Provinces have some jurisdication (power) in relation to some matters such as property and civil rights while the federal government has power in other matters such as criminal law. Also includes Indigenous rights such as those related to treaty rights and agreements between the federal government, provincial government and Indigenous nations in relation to self government. Alignment to the United Kingdom/Britian Includes the Canadian Charter of Rights and Freedoms The Sources of Law Continued… Regular Statutory Law Legislative enactment by passing a Bill (a legal provision for something to be done or for something to be prohibited) May be enacted by a government to cover new circumstances not covered in existing law, to change existing law, or make existing law more certain. Makes the law accessible and written Common Law Includes judicial decisions overall time to be applied consistently to other cases in the future (case law) Case law: a written record and evidence of how the law applies in a specific case. Legal Positivism (influenced by philosophy) Views the law as: being created and written be governments (similar to statue law); legal interpretation holds that the law is interpreted by judges (similar to common law) and; natural law holds that there is a relationship between law and morals and that law is what “ought to be” – it is a universal, unchanging, and everlasting set of legal principles. Summary Law comes from: The legislature or parliament (they write and pass law) Judges as they perform their task of deciding cases Natural law (arise and exist in a universal, unchanging manner based on morals)