CRI215 Study Sheet PDF

For each term: - Definition and description - Author Info - Example from lecture/case study - Additional info from readings: show engagement, synthesis or mastery of concept; demonstration of understanding - Any other additional info Legal Consciousness Legal Consciousne...

For each term: - Definition and description - Author Info - Example from lecture/case study - Additional info from readings: show engagement, synthesis or mastery of concept; demonstration of understanding - Any other additional info Legal Consciousness Legal Consciousness Author Info - Ewick and Silbey - From the article Conformity, Contestation and Resistance: An Account of Legal Consciousness - Both sociology professors — conducted interviews (qualitative research methods) - Jacobs - From the article Legal Consciousness and its Significance for Law and Society teaching Outside Canadian Law Schools - Quotes Ewick and Silbey to explain the concept of legal consciousness Ewick and Silbey wrote the original article, Jacobs quotes them to try and define his idea of insiders and outsiders. Definition and Description - Legal Consciousness is how “ordinary people” (outsiders) rather than legal professionals (insiders) understand and make sense of the law - “The way in which people make sense of laws and their institutions” - Helps see how the law is all around you - How ordinary people respond to law, interact with law, and what meanings we give to law. - 3 main themes which give meaning to ordinary people’s experiences of the law: - Conformity - Going along with the law: “Before the Law” - Contestation - Playing the game or participating in the “contest” of law (trying to “win” the case): “With the Law” - Resistance - Pushing up against the law, resisting the law: “Up against the Law” Example from Lecture/Case Study Millie’s Example: Millie worked for the Richards, and would do their errands for them. One week, she did not have her car as she could not pay the insurance and so she had left the car parked out front of her apartment and told the family that she would be taking the train. The police then arrived at her home and served her with a court summons based on the claim that she had left the scene of a crime and drove an uninsured car. She found out that her son’s friend had taken it for a ride before the police arrived or before Millie could notice the car as missing. She then went to court without an attorney (since she could not afford one) and plead not guilty. At her first court appearance the judge set a second court date to hear her not guilty plea. Without any discussion the second judge found her guilty, suspended her license for a year, and told her she must pay $300 in fines and fifteen hours community service. They then appealed the case with the Richards help, and found out that the court papers had been filed to mark her as pleading guilty. Once the attorney (the legal insider) was present, and presenting the same facts Millie had been presenting from the outset, the court found her not guilty and dismissed the charges. - Demonstrates how different people have different experiences with the law based on their position to it. - Millie is an “outsider” in a courtroom filled with “insiders”, which makes her experience different, and shows the legal consciousness of her story. - Millie’s lawyer (an insider) has insider’s experience, in which his gender, race, class, and insider knowledge of legal training and experience contribute to the differences in their experiences. - The Richards’ experience of the legal issue is also different. - Outsider’s perspective but they voluntarily joined the legal process; yet familiar with the procedure of engaging an effective lawyer (outsiders interested in the law). Conformity, Contestation, and Resistance in the Example: - Conformity - When Millie accepted the authority of the court and judge and deferred to the process even though she had done nothing wrong - Contestation - How she and the lawyer — with the Richardson’s resources — appealed the case - Resistance - Millie’s small acts of resistance such as arranging her community service requirement at a church where she already volunteered General Things to Know - Everyone (insiders and outsiders) experience legality: it is all around us - Legal “outsiders” and “ordinary people” participate in formal law, but they experience it differently than insiders. - Law and Society education is a way to learn about the law without having to be transformed into a legal “insider”. Legality Author Info  - Silbey introduces us to this concept - She considers formal law (institutions such as courts, statues, and official legal actors) as “law” and other social relations and meanings as “legality”. - From the article _______ Definition and Description - The “meanings, sources, or authority and cultural practices that are recognized as legal, regardless of who employs them for what ends” - Constituted (enacted/created/produced) via all kinds of actions and interactions. - It is pervasive — it is all around us. - Allergy warnings, copyright symbols. Insiders/Outsiders + Formal Law/Informal Law Author Info - Les Jacobs - Professor of Law and Society - His research focuses on human rights and access to justice - From the article Legal Consciousness and its Significance for Law and Society teaching Outside Canadian Law Schools Definition and Description Insiders: People who have “doctoral training” (law school education) Outsiders: People who are interested in law but did not get doctoral training (ordinary people) - This “outsider” legal education is more capacious: it is focused on how law is produced, by whom (legal actors), its relationship with “society” (culture, politics, economics, media, etc.) and its effects. Formal Law: Laws that are in the criminal code, and will get prosecuted if not followed. - Breaking a formal law at U of T would be cheating on an exam Informal Law: Not written in scripture of the criminal code, many of these are social norms. - Breaking an informal law at U of T would be bringing a coffee to an exam Example from Lecture/Case Study - Jacobs described Ewick & Silbey’s concept of legal consciousness as a way to think about ‘outsider’ law and society education - The idea of binary pairs, and a dichotomy between two groups - A pair of related terms or concepts that are opposite in meaning General Things to Know - Jacobs distinguishes Law School legal education as “doctoral training” aimed at the creation of legal system “insiders” (lawyers, judges) whereas law and society legal education is for “outsiders” (anyone interested in law who is not a lawyer) Why People Obey the Law: An Extension of the Idea of Legal Consciousness Big Idea: The fairness of a system (procedural justice) affects the view (legal consciousness) that ordinary people (outsiders) have about its legitimacy. Instrumental vs Normative Author Info - Dr. Tom Tyler, prof at Yale Law School - Founding Director of the Justice Collaboratory at Yale - Research “explores the role of justice in shaping people’s relationships with groups, organizations, communities, and societies. In particular, he examines the role of judgements about the justice or injustice of group procedures in shaping legitimacy, compliance, and cooperation.” - From the chapter “Procedural Justice, Legitimacy, and Compliance” Definition and Description Like the earlier ideas of legal consciousness, Tyler is “concerned with the role of law throughout the everyday life of citizens.” - He wants to explore “how people react to their personal experiences with legal authorities” Are people motivated by instrumental factors or normative factors? Instrumental Factors: rewards/punishments - Examples of instrumental factors affecting compliance: - Financial compensation for reporting tax evasion - Wanted sign with rewards - Speeding tickets - Jail time Normative Factors: sense of obligation, support for system, sense of justice - Examples of normative factors affecting compliance: - Sending your kids to school because you believe in the positives of an education - Not stealing because you think it is morally wrong Legitimacy Author Info Two different articles touch on this topic: - Jordan Stanger-Ross, professor of history at UVIC - Focus on immigration, race, inequality in twentieth-century North America (Legal History). - Nicholas Blomley, professor of geography at SFU - Focus on law, space, and marginalization (Legal Geography).  - From the article My Land is Worth a Million Dollars: How Japanese Canadians contested their dispossession in the 1940s - “Contested” in this sense does not refer to the same contestation as defined by Ewick & Silbey, and instead refers to the protests made by interned Japanese-Canadians persons whose property was confiscated during WWII. - “Protests” in this context was their writing of letters to the Canadian government: they still believed that the ‘rules’ of the Canadian legal system might apply — even in the context of the internment policy. Also: - Tyler - He is particular interested in the role of judgements about the justice of injustice of group procedures in shaping legitimacy, compliance, and cooperation - From the chapter “Procedural Justice, Legitimacy, and Compliance” Definition and Description Recognized as valid, legal, justified, and correct. - In the context of formal legal systems, a recognition of the valid authority of the legal system and its agents. - “The right to govern” - “A legitimate use of force” Example from Lecture/Case Study - From Stanger-Ross and Bromley, the idea that the Japanese whose property was stolen still believed in the legitimacy of the Canadian legal system and government, and contested the law by fairly playing the game. - Through their article, we can see the legal consciousness of ordinary people. In extraordinary circumstances, as they contest and resist the Canadian government’s sale and valuation of their properties. The authors call it “the courage of everyday people contesting injustice”. - The authors point out that one of the outcomes of the detention and dispossession was that Japanese-Canadians’ “sense of belonging and faith in the state” was ruptured: they lost their belief in the legitimacy of the Canadian justice system. Procedural Justice Definition and Description This is a good example from the readings as to further deepen the definition of legitimacy. - Procedural justice is what allows people to believe in the legitimacy of the legal system and government. - The perception of people on whether they are being treated fairly by the legal system, and if it is conforming to the rules. Procedural Justice is the perception and experience of fairness of the justice system. Law on the Books vs. Law in Action and Community Regulation Community Regulation Author Info - Howes & Dunsby - Loene Howes — Lecturer of Criminology at University of Tasmania - Ruth Dunsby — Graduate in criminology from University of Tasmania - From the article The NEW Adventures of the Digital Vigilante! Facebook users’ views on online naming and shaming Definition and Description While Palmer’s article (charivari) demonstrates the history of community regulation and popular condemnation of activities, Dunsby and Howes article suggests that the new forms of community regulation have moved into the digital space. - Community Vigilantism is visible in Howes’ and Dunsby’s article through digital vigilantism and naming and shaming: both law in action by ordinary people who seek to regulate and shape behaviour in their communities Vigilante: a member of a volunteer committee committee organized to suppress and punish crime summarily (as when the processes of law are viewed as inadequate) [i.e. without trial or due process] - Broadly: a self-appointed doer of injustice Digital Vigilantism: “also known as digilantism, internal vigilantism, and cyber-vigilantism [...] can be described as a citizen’s reaction to another person’s transgression of social norms… in the online space.” (pg. 42). Naming and Shaming: a form of digital vigilantism: identifying alleged offenders and subjecting them to embarrassment, harassment, and/or condemnation. - Regarded as a way to educate and inform people that their behaviour was socially inappropriate, reflecting a motive of encouraging behaviour modification. Example from Lecture/Case Study The authors cite a 2016 study focusing on “naming and shaming” following a riot in Vancouver, explaining that in the study, naming and shaming was motivated by public dissatisfaction with the criminal justice system and that it was a form of crowd-sourced policing. - Current forms of law in action via community regulation - Being “cancelled” is considered a form of ‘law in action’ and community regulation - Cancelling someone online is the current-day “digital Charivari” used by ordinary people to regulate offensive behaviours that are untouched by law Additional Info from Readings - Commonly directed against unnatural marriage, sexual offenders, wife beaters, and those who have defied acceptable standards of behaviour (including employers and strikebreakers), charivaris and whitecapping posed the threatening order of custom against the rule of law Law in the Books vs Law in Action Author Info - This is a general course concept, and not necessarily from a certain reading. - These themes are evoked in Palmer’s, Howes & Dunsby’s readings. Definition and Description “Law in Action” is a core concept in Law and Sociolegal Studies. - Part of an analytical approach called “legal realism” that explores how laws are applied in society. - Commonly presented as the ‘real world’ expression of laws and legal practices. Law on the Books - Refers to formal laws, statues, case decisions that comprise the structure of “law” Action - Is how things actually happen in real life (hence: “realism”) - Law in Action considers how laws are implemented, how they are circumvented, and how people think about law. - How some people seem to be ‘outside the law’, and how people sometimes act ‘extra-legally’. Charivari Author Info - From Bryan Palmer - Professor of History at Trent University - Focused on labour history, histories of left and radical movements (often with socialist Marxist lens) - From his article Discordant Music: Charivaris and Whitecapping in Nineteenth-Century North America Definition and Description A mechanism of “community control” performed by ordinary people to “enforce popular standards” of appropriate behaviour. Many areas of daily life for ordinary people were ‘untouched’ by formal law, and Charivari and other customs were forms of community discipline that functioned to regulate social mores. - Until the mid-19th century, these customs were “recognized as established institution” by authority figures and the upper-class.  - For example, “wife-beating” was not illegal at the time, but it was socially unacceptable and often subject to public censure via the Chivari. Emerged in Europe and the UK and were brought to North America through colonial migrations. - These customs then took on different names and expressions in North America, and changed over time as they were increasingly seen as an expression of lower-class ‘disorder’ - Charivari “victims” were less likely to acquiesce (tolerate/participate) in the ritual, and authority figures were less likely to tolerate its “disorder” - Over time there was a shift from rough music to rough justice: events that were more likely to produce violence and tragic outcomes, like lynchings. - By the end of the 19th century (18902), Whitecapping had largely come to replace Charivari, and was considered a “serious threat to order and stability”. 3 stages: 1. Rough music is the beginning of popular justice, overture on pots and pans, whistles and bells, outside the house of a culprit. 2. Ride on Donkey, a ladder or a pole. a. The culprit, or a neighbour representing him, is seated on a donkey facing its tail which he ignominiously holds in place of reigns. b. He is thus paraded, Rough Music accompanying him. 3. A public place, a re-enactment of the censured conduct, with a mock judgement and sentence. a. Such popular justice is found all over Europe from Portugal to the Balkans, from Italy to Scotland. Would be considered ‘’Customary Law” or “Law in Action”. Additional Info from Readings - Palmer’s analysis is primarily a class analysis, using Marxist/legal ideology framework. - His focus is on the power relationship between the upper and lower classes, arguing that the upper-classes started to associate Charivari with “lower class disorder” which led to official resistance to the custom by magistrates. - Then, the suppression of the custom actually encouraged more violence. - More violence = more law-breaking = no longer a tolerable “extra-legal” practice. Important Community Regulation Terms Extra-Legal: “not regulated or sanctioned by law” - Practices that are ‘outside the law’ - This is different than something ‘illegal’ or ‘law-breaking’, or ‘against the law’. - E.g. Charivari is an extra-legal practice Custom: a “long-established practice considered as an unwritten law” as well as the “practices that regulate social life” Authority: “the power to influence or common” - Palmer uses this concept in two ways: - The authority of the community to regulate behaviour via the Charivari - The authority of the upper classes to endorse or suppress the Charivari depending on their attitudes towards it. Racialization and Categorization in Sociolegal Studies Big Idea: How our society maintains boundaries in the legal system to maintain categorization and racialization in that realm, but not in everyday life so as to not have to acknowledge any discrimination in real life. Author Info - Neda Maghbouleh - Sociology Prof at UBC - Focuses on racial/ethnic categories and identity formation as they relate to immigration and refugee resettlement - From her book “The Limits of Whiteness: Iranian Americans and the Everyday Politics of Race” Racialization Definition and Description Process by which non-racially defined groups were labeled and differentiated on the basis of real or perceived characteristics (ex. melanin) From this categorization by ‘race’ which is a social construct, racial hierarchies were created to justify social and legal regimes such as racial slavery. - These regimes were designed to often enrich individuals and European empires. Example: - Even though Iranian Americans were considered as white, in airports after 9/11, they were treated poorly Categorization Definition and Description The differentiation and sorting of persons or things into groups, or ‘categories’. Example from Lecture/Case Study - In Maghbouleh’s book she opens with an example of categorization - The act of ethnic and racial self-identification involved in filling out questionnaires in which a person is profiled, guided, sorted, and coded into an ethno-racial definition. - The Census Form - Whilst still being seen as ‘white’, not in a real life context (mix of racialization, can use info from that) Binary Pairs Definition and Description A pair of related terms of concepts that are opposite in meaning - To dichotomize is to divide into two groups (dichotomy) In binary pairs, the 2 groups are presented as contradictory, opposed, or mutually exclusive. - Usually express a form of power relation, where one group governs the understanding of the other group. Example: masculine/feminine; civilized/wild; hero/villain; innocent/guilty; us/them; good/evil Boundary Maintenance Definition and Description - The ways in which societies and/or social systems maintain distinctions between themselves and others. Iranian American experiences and consciousness of racialization by exploring the social and political ‘browning’ of Iranian Americans despite their legal categorization as ‘white’ in the US. - Through the Census Forms which said that every person from anywhere in the world were still considered as white officially yet in social situations they were not. De Jure vs. De Facto De Jure: A term used to describe something that is true or exists in the realm of law. De Facto: A term used to describe something that is true or exists in fact, but is not officially sanctioned or recognized by law. Maghbouleh states that the point of her book is to “interrogate how Iranian Americans came to be categorized as white de jure, to explore if they are socially incorporated as white de facto, and to assess what this case tells us about how whiteness operates on the ground today”. - Think about boundary maintenance and dichotomies in this context. - How our society maintains boundaries in the legal system to maintain categorization and racialization in that realm, but not in everyday life so as to not have to acknowledge any discrimination in real life. Invisibility / Hyper Visibility Definition and Description This is an example of a binary pair that can help us think about how Iranian American youth, who do not identify as white, think about their legal categorization: a categorization that doesn’t “fit” their identities.  - When coded as “white” in the census, Iranian Americans and other MINA American people become legally ‘invisible’. - But, these same people are politically and socially hypervisible in contexts like majority-white high schools, in American and European airports, and in “white” neighbourhoods. Maghbouleh identifies techniques used by white people in these spaces to police the boundaries of race: bullying, surveillance, detention. - These techniques of boundary maintenance communicate messages about who is welcome/unwelcome, and who is compatible/incompatible with the dominant American conceptualization of Whiteness. Other Important Terms Regarding Racialization and Categorization Construction: How certain meanings become built in; to the way people talk and think about our world. - Why does a red rose symbolize romance? How/why does Lady Justice enhance judicial legitimacy? Jurisdiction and Urbanism Author Info - Mariana Valverde Professor at the Centre for Criminology & Sociolegal Studies at U of T! - Studies the legal regulation of sexuality, sociolegal theory, historical sociology, and urban governance and law. - From her article Jurisdiction and Scale: Legal ‘Technicalities’ as Resources for Theory What her Analysis Means - Her analysis is on the Senákw nation, a development of the Squamish Nation, who have lived in their traditional territories at Vancouver and in the Squamish Valley for thousands of years. They have Indigenous Rights recognized by law. - There are no treaties made with the Squamish Nation and the BC/Canadian Government. - However, there are Reserves governed under the Indian Act rules and other federal regulations, and by the Squamish Nation Elected Band Council. The Squamish Nation is in a unique position in Canada because their reserves are located on VERY valuable land in Vancouver. The Nation operationalized that value through leasing out lands and buildings, renting out billboards, and developments such as Senákw. - How do scale, jurisdiction, Indigenous rights, and urbanism interact in the sociolegal sphere in this scenario? Jurisdiction Definition and Description  - The power, right, or authority to interpret and apply the law; a matter that falls within the court’s jurisdiction; the authority of a sovereign power to govern or legislate; the power or right to exercise authority; the limits of territory within which authority may be exercised. - Valverde refers to jurisdiction as the “governance of governance” and the “law of laws”. - What laws apply where, when, to whom, and (of course) HOW? What are the effects of the law in action? For sociolegal studies, exploring questions of jurisdiction allows us to see the interactions and conflicts across different legal orders, and the “consequences of defining a space or problem as international, national, or local”. Scale Definition and Description Something graduated especially when used as a measure or rule, for example an indication of the relationship between the distances on a map and the corresponding actual distances. - Scale can also include “levels such as Local, Regional, Global For sociolegal studies, scale can be an analytical choice: allowing us to focus on levels of law such as: city-level, state/provincial level, national/federal level, continental-level (ex. NAFTA), international-level, laws of waterways and oceans, global-level, planetary-level/space-level, AND Indigenous-level. Urban Definition and Description Of, relating to, characteristic of, or constituting a city - Valverde demonstrates ‘local’ (a scale of analysis of a location) from ‘urban’ (which is better characterized by questions of jurisdiction and governance). - It’s the difference between the local government of the grandparents’ tiny village in Ireland, and the challenges of urban governance in Toronto or Vancouver or NYC. Indigenous Definition and Description Of, relating to, or descended from the earliest known inhabitants of a place and especially of a place that was colonized. In relation to scale: it may be useful to think about Indigenous Governance, Indigenous Rights, and Indigenous Legal Orders/Traditions as having/being of their own jurisdictions, and their own scales. Interlegality Definition and Description “Interactions among different legal orders” Temporality Definition and Description “Existing within or having some relationship with time” - For Valverde, adding in a temporal analysis can enhance the insights of jurisdiction and scale. Using Valverde’s theoretical tools from the reading, we can add in the dimension of time to this analysis to reflect the public “mood” of reconciliation, to understand the huge shifts in the various governments’ approaches to the Senákw development and the Squamish Nation’s jurisdiction over their ancestral lands in Vancouver. Representations of Justice Big Idea: Visual representations of justice can help contribute to state formation and an outsider’s perspective of law and the authority of the system. Author Info - Judith Resnik professor at Yale Law School - Bruce Curtis professor at Carleton University, focusing on the historical sociology of state formation - From their article Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses. Their Analysis - Their general argument is that the icon of Lady Justice, and the aesthetics of courthouse buildings, work to legitimize legal systems so that populations will accept the authority of the courts and obey their judgements. - The legitimacy of law and the justice systems is constantly being challenged – and so the visual cultures of legal systems need to adapt and change. - The “modernization” of courts and court practices are a current expression of this adaptation” State Formation Definition and Description A historical analysis that explores how the “modern” state emerged. - This historical analysis is often critical of ‘state power’, in that it explores how ‘the state’ has been empowered via the development of institutions for the management of populations. State formation is thought to occur via the assertion of sovereignty and authority — an assertion usually made by a “ruling class” over less powerful populations. - State Formation produces “subjects” and “citizens” (for example British Subjects who are subject to British Law). Example from Lecture/Case Study  - In class, we connected the construction of courthouses across Canada as state formation, analyzing how the construction of buildings, the design of the buildings (aesthetic), and the symbols within, worked and still work to assert state authority. The transplant of European/British legal systems to North America required an assertion of sovereignty/authority and their claims to Indigenous lands, courthouses provided a visible reminder that the settlers — and their legal system — were “here to stay”. - Aesthetics of court buildings drew on ancient Roman, Greek, British visual traditions that signified “order” and rationality to present the system as traditional, historical, and legitimate — even though it had only recently been imposed. Particularly in time periods and regions were many British and European settlers were looking to establish their authority and their claims to Indigenous lands, courthouses provided a visible reminder that the settlers — and their legal system — were “here to stay”. Visual-Historical Legal Analysis Definition and Description - Resnik and Curtis use a “Law & Culture” style analysis - Focus on architecture and art history, combined with semiotics analysis of the legal messaging and meanings communicated by visuals. Lady Justice - Around the world, people ‘read’ the symbol of “the oddly dressed woman with a set of attributes (scale, sword, and sometimes a blindfold) as representing or referring to Justice” - Lady Justice has ‘outlived’ her sibling Virtues because she is visually accessible. - She is recognizable in legal and popular culture because “she has been deployed, politically, by governments seeking to link their rules and judgements to her legitimacy. [...] She had a remarkable run as political propaganda”. - Rules “wrap themselves in Justice” because they need the power to judge, so they can impose control. - More recent depictions of justice and judging are usually more upbeat, and less likely to depict the challenges and consequences of judgment and law enforcement. Change of Representations over Time Renaissance: Use of the justice icon in civic spaces in Europe, alongside the other sibling Virtues. Enlightenment: Continued use of justice icon, secularization of the iconography (to a degree) in keeping with the changing intellectual tradition and political circumstance (ex. Independence in France and America). Legal Transplants to Colonies: Colonization of North America by England and France led to the ‘transplant’ of their foreign legal systems to Indigenous territories. [It is unclear from the article if ‘Justice’ iconography was used in these early colonial spaces, which were usually mixed-use (simultaneously as a post office, town-hall, court, etc.)]. Entrenchment and ‘normalization’ of British (and French) tradition in 19th and 20th century Canada and in the US: The construction of courthouses in the same visual tradition as Lady Justice iconography (ancient Greece and Rome, Renaissance symbolism, Enlightenment rationalism symbolism) helped to legitimate and naturalize these systems in North America. It visually connected them to the Euro and ancient traditions.