LWSO 203.pdf

Topic 1: Introducing Law and Perspectives on Law Society- an ordered web of ties and patterned relationships - Includes institutions - Governed by law Institutions- anything that guides patterned human behaviour - Formal institutions- have legal consequences when rules are not followed...

Topic 1: Introducing Law and Perspectives on Law Society- an ordered web of ties and patterned relationships - Includes institutions - Governed by law Institutions- anything that guides patterned human behaviour - Formal institutions- have legal consequences when rules are not followed eg. universities, law - Informal institutions- guides human behaviour through unwritten rules eg. society, culture Organizations- collection of agents working together totowards common goal Institutions vs Organizations All organizations are a type of institution because all organizations guide human behaviour in some way but not all institutions are organizations ie, not all society have a goal they are actively working towards. Law- a set of rules and regulations that govern society i)formal rules of conduct (binding and enforceable) ii)the involvement of politics iii)balancing individual and collective interests iv)establishing social order v)limiting the arbitrary use of power Politics- Practices and processes of power relations Power - Ideological- teaches people how/what to think Structural- power of position Instrumental- power of having things Law vs Politics Politics shape law and law can shape politics => politics (government agents) can decide what law is passed, conversely, those law can determine who has the power (politics) Laws can reify or challenge existing power relations in society Law can prevent state’s abuses of power Law can shape a country’s political institutions Law can adjudicate countries political problems The “Rule of law” is in the centre of most modern states =>evryone is treated impartially and equally under the law; there are systems in place to achieve this equality Justice- derived from the roman term justicia- “to give each their due” - Reflects i) legal fairness ii) legal equality iii) legal rights iv) punishing legal wrongs Distributive justice- concept that addresses equal distribution of resources; there are many different distributive justice theories but some overall examples include social security and progressive taxation. Restorative Justice- an approach to justice that focuses on repairing the harm caused by criminal behavior through inclusive and cooperative processes involving all affected parties—victims, offenders, and the community. Rather than focusing solely on punishment, restorative justice seeks to address the needs of the victim, encourage accountability from the offender, and promote healing for both the individual and the community. The goal is to restore relationships, make amends, and reintegrate the offender into society. Traditional Theories on Law Natural Law: there is a universal, absolute law. These principles are considered to be self-evident, objective truths about right and wrong. MORALITY Lex injusta non est lex- An unjust law is no law at all => authority is illegitimate unless it is good and right. A part of the Canadian Charter of Rights and Freedoms eg. fundamental rights recognizes inalienable rights which aligns with the concept of higher morality,  Additionally, Section 7 of the Charter, which protects life, liberty, and security of the person, embodies natural law ideals of inalienable human rights Positivism: A theory of law that views law “as is” rather than “as it should”. Follows man-made laws and argues that what is right=what is lawful. Law is posited= man made Laws validity comes from the validity of the sovereign state. Rooted in British practice of Parlimentary supremacy => focusing on formal rules and regulations established by legitimate authorities 11. They emphasize the importance of written law and its validity based on the authority of the sovereign or state Legal Realism: understands that law and legal outcomes as part of political, economic and social contexts. Realist analysis of law is like ‘grand-style judging’ (Boyd, 2019) Like positivism, focuses on law ‘as is’ rather than ‘as it ought to be’ Unlike positivism, focuses on the human influences of law =>Legal realists, on the other hand, challenge this perspective by considering the practical application and effects of law in society 15. They argue that law is shaped by social, political, and economic factors, not just formal rules Marxism: informed by the idea of historical materialism There are many different Marxist approaches to law Tends to view law as an institution of capitalism and an instrument to protect to economic elite class Contemporary Theories on Law Critical Legal Theorist: critical of the rationales, purposes and assumptions of law and legal theories Views power as embedded within legal systems Considers the political, social and economic context of law Arose as a challenge to positivism Often influenced by Marxist ideas Feminism: understands law from a gendered perspective Identifies and problematizes the gendered nature of law and legal study First-wave feminist thought Second-wave feminist thought Third-wave feminist thought Contemporary Theories of Law ll: Feminism Feminist Theory of Law: understands law from a gendered perspective First-wave feminist thought Second-wave feminist thought Third-wave feminist thought Case1. Carter v. Canada -criminalization of physician assisted death -Carter suffered from immobilizing spine disease -Bill C14 medical assisted death (2016) Natural law theorist=>An illegitimate law as it conflicts with morality, only God or a supreme being can decide when an individual dies, its a sin to take away people’s lives. Life is sacred. Legal positivist=> Yes, as long as it is allowed by the law and lawful legislative process is followed. No reference to morality. Legal realist => Depending but the decision would focus on the outcome and contextual factors eg. economy at that time. Marxist=> Depends if suicide helps the economy eg. effects on labour, resources, production Critical Legal Theorist=> Looks at power, positions in society (privileges), class gender, social (social bias) and economical context. Feminist=> Yes, People, especially women have rights to their own body. Looking at gender statistics of diseases which might require assisted death. Case 2. The Cannabis Act Natural law theorist=> Becsause it is a drug, it could interfere with the natural way of thinking. Legal positivist=> Yes, because it is legal but legal process must be followed. Legal realist=> Based on Public opinion. May apply harm reduction, May also look at health benefits of Cannabis. Law as the outcome? Marxist=> Drugs are used to pacify proletariat. Decision must be anchored around socio economic status. Critical Legal Theorist=> Looks at who this law is targeting. Law for what and for who? -> who does the law give advantage/ disadvantage to? Feminist=> Cannabis can be used as an ailment. Cannabis can also affect women’s lives negatively eg. connection between drugs and DV An Early History of Law 4000 years ie, Hammurabi, Mohhamad, Confucious 15th-16th century Europe->Feudal Law 1215-> Magna Carta -limited authority of monarchy