Law & Society - LEGAL106 PDF

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From Sue Wardill's Lecture...

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Law & Society Law Alive Third Edition- Chapter 6 ● Theory forms the basis of opinion ● [if we] change [our] ideas, [it] changes what we do Why theory? ● Provides a way to examine our opinions and consider ○ Where our opinions come from (context) ○ Provides a frame of reference ○ Whether our opinions automatically translate into ‘natural fact(s)’ (do we accept our opinion as ‘fact’?) ○ Whether our opinions affect the way we act ● What is your opinion? What is fact? ○ Meaning of fact depends on context ○ Working definition: it means something known to be true, accurate, verified Risking of Avoiding Theory ● ‘Each day seems like a natural fact” (we just accept) ● Things seem self-evident; the way it's always been or supposed to be; ‘natural’ and simply a ‘fact’ eg our style of government, immigration policies, Treaty settlements process, access to children by abusive parents, legislation - foreshores & seabed Act ● If we accept our opinions (or actions or things) as ‘fact’, would we ever challenge/change things? Historical (and other) contexts reveal ● Many ‘opinions’ which have been examined (deconstructed) have eventually been repudiated ○ Right of only white men to vote, 12-hour per day child labour, circus display of mentally ill, slavery and segregation ● It is axiomatic that ‘what we think changes how we act’ The place of law in society ● The law has become an increasingly prominent part of modern society as more and more aspects of our lives are regulated and controlled by law ● Proliferation of laws and regulations ● Almost all aspects of life regulated by law ● Examples? Speed limit The place of Law in Society

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Why do we have laws? Who makes laws? What is regulated by law, what is not? Why do laws differ between countries, provinces, towns, etc.?

Definition of Law ● Working definition: ○ Written rules produced by the state (central authority in society) for a jurisdiction (specified territory) ○ This is a formalistic definition of law ○ Definition depends on particular theory of law, eg this definition more aligned with positivists than naturalists. ● What/Wha is the state? How did it originate? Who gave it law-making power? ○ Answer to these questions depends on specific paradigm or perspective of society that you apply ● Broadly, two (ideal) perspectives ○ Consensus theory ○ Conflict theory ● Reality lies somewhere in the middle? Perhaps a continuum? Order Perspective (Social Contract) Consensus Theory ○ Law is the codification of mutually agreed-upon norms for the smooth functioning of society ○ Law reflects a broadly based consensus in society ○ Assumes that people living in a society share common view of the world, have similar values, and agree how society should operate ○ Applies to simple, homogeneous societies ○ State represents the will of the people ○ Homogeneity Pluralist Theory ○ Based on order, but applies to more stratified, heterogeneous societies ○ Acknowledges that there are diverse groups in society with different interests which results in conflict ○ Consensus about the creation, implementation and enforcement of law holds society together ○ A belief that law exists independently from the influence of specific groups; provides neutral framework within which societal conflicts can be resolved ○ Rule of law ○ State is neutral referee overseeing struggles of competing interest groups ○ Heterogeneity

Conflict Theory ○ Conflict, not consensus, is the basis of social reality ○ On-going conflict between groups who compete for power ○ Minimum level of consensus to ensure the continuation of society ○ Mostly disagreement on more important issues ○ Marxism: the law is a tool of class domination; ruling class use it to dominate the working class ○ Foucault: Law and its institutions are instruments of power Purpose and function of law ● Social control (preserve order) ● Dispute settlement (settle conflict) ● Social change (catalyst for change) ● As with the definition of law, there is no agreement among scholars of law and society on the precise functions, nor is there consensus on their relative weight and importance. Social control ● Law is a formal mechanism to ensure that people behave according to particular norms and rules ● Law prescribes sanctions for non-compliance ● “behavioural conformity” ● “internalization of shared norms” Dispute Resolution/Settlement ● Law is formal method of dispute resolution ● Other models of dispute resolution (Alternative Dispute Resolution) ● counselling ● Mediation ● Law is a agent of social change ● Changing society ● Sometimes the law will change society , sometimes society will change the law. Dysfunctions of Law ● Law is conservative ○ Status quo perpetuated by law ○ Courts are agents of ‘status quo’; doctrine of precedent ○ Precedent: predictability, continuity and certainty ● Rigid and formal ● Potentially over-restrictive. Over-regulation?

● Inherently discriminatory. Law treats everybody as equals, which assumes that everybody is equal. (formal v substantive equality)...