Notes for Law and Society 2350/ York University PDF

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Notes for Law and Society 2350/ York University 2017-2018 for the entire year....

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Law and Society, Lecture 1: Sep 13th  How to organize to change laws in society  What separation of power is?  How is colonialism influencing Canadian…?  How does law impact social change and how does social change impact law and what is the relationship between them?  One aspects of law and society is that law is everywhere  What do we mean by law is everywhere? - Some laws are not written but it is known - Law is interdisciplinary Tutorial 1 didn’t attend Lecture 2, Sept 20th (From Manal) Models of lawmaking: 

Rationalistic

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Functionalist

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Conflict perspective

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“moral entrepreneur” theory

Rationalistic perspective:  A rational means for protecting the members of society from social harm (ie particularly criminal law) A simplistic theory  But who gets to define what is “harmful”?  Is it a rational approach or highly “invested” approach?  Protect people from harm and deter people from causing harm  Elites, bodies etc. try to define what harm is Functionalist perspective:  How do laws emerge?  Laws are “reinstitutionalized customs” Law as a restatement of customs enforced by legal institutions A crystallization of custom, of the existing normative order Laws are passed because they represent the voice of the people A consensus perspective Customs = norms or rules about the ways in which people must behave if social institutions are to perform their functions & society is to endure.  Main purpose is to determine how laws emerge

 Laws are what keep order in society, keeps it functioning  People agree on laws and unpronounced customs, that’s why they work  Flaws: reactionary, leaves out people  Law as consensus and social cohesion Conflict perspective:  The origin of law is traced to the emergence of an elite class  Laws, as a social control mechanism, perpetuate the advantageous positions of the elites  Maintains unequal social & economic divisions Ex would be vagrancy laws  Speaks on discussion of power, addresses elites of society  Uses law to control rest of society and keep people in place  Vagrancy laws: laws that regulate the poor  First passed in UK in 1349, time of Black Death. These laws (created by the rich, elites of the economy) forced people to work, forced them to stay in one place which allowed said elites to stay in power. Vagrancy laws recur in this society as well ex. Safe street act  Perspective question: Who does this law benefit Moral Entrepreneur theory:  Usually not “moral” at all, but highly ideological  Laws as a means to create or maintain a particular “moral” constitution of a society  Law as a means of stamping ideology with “legitimacy” & “respectability” Anti-miscegenation laws in US & in Canada, see “white woman’s labour law,” & the Indian Act. (White women labor laws passed in 1900’s, prevented Asian business owners to higher white women, white women too good for Asians, didn’t want each other’s values to interact) To maintain “racial purity” & to secure economic rights & interests with the ruling group Probability of legislative response: Increases when:  Powerful interest groups mobilize for legislative action.  Public intensely concerned with an issue.  There is no pressure to maintain the status quo or opposition to proposed legislation.  Legislative: law makers, body of the government, parliament Lawmaking:  Where does law come from?

 Legislation *Law made by legislative bodies, most obviously the Parliament of Canada and the Provincial Legislatures* This is statute law: “a new statute … can make drastic changes with the stroke of a pen” (121) Responsive to public & private pressures A response often to an issue, concern or problem (eg Anti-terrorism Act (2001)) Preceded by a series of pre-lawmaking “stages” of activity If intent of legislature as ambiguous – must be interpreted by courts  Events happen create public pressure in turn creates pressure on parliament ex. 9/11 caused pressure to create anti-terrorist acts/laws  Bill ->senate->HOC->royal decent/consent  Courts role is to interpret words of a law and the law itself Judicial Lawmaking:  The question of judicial activism: Making law or interpreting law?  Through precedent (a common law tradition) Courts are hierarchical and the decisions of upper courts binding on courts below Predictability & continuity Binding precedent or binding authority Conforms to the belief that “like wrongs deserve like remedies” & notions of “equal justice”.  Courts=interpret the law, reactive  Legislative=make law, proactive  Judicial activism refers to a ruling as the personal view of the law from the perspective of the judge, argument here is that judges are accused of making the law rather than enacting it, realistically they interpret or are supposed to interpret laws  Flaw: some make it personal Tutorial 2, September 21st:  The branches of Power: Judiciary (interprets, selected, you can’t be bias it has to be impartial and fair, they have the democratic defesent), legislature (Laws, the two houses, elections) , executive (enforce, elected,) *For a bill to become a law approval will have to be set*

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The four models: - Rationalistic model: rationality to the law to protect the individual - Functionalist model: …? - Conflict perspective: weak people be against in laws - Moral …?: wrong to discriminate on someone’s religion  What role the society play in law? Law will provide order within society (things that are good or/and bad), law is described as the glue that holds society together *Rights are attached with duties* *the person’s case* = women are not considered persons (are women people)  The judiciary: - The structure of it is getting into the higher stage with a specific hierarchy The cabinet stage: the stage where policy are framed and developed via 

Throne speech/budget

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Campaign promises

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Public interest/pressure groups

The parliamentary stage: 

Introduction & 1st reading

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2nd reading

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committee consideration

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3rd reading

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passage and royal assent

The implementation stage: 

after royal assent… governor general

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it becomes an Act for which a date is specified as effective

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ex. Bill 183 (the Ontario college of trades and apprenticeship act)

*Regulations describe an act* Lecture 3, didn’t attend

Tutorial 3, September 28th: 

the different people or parties who are in the dispute: -

the claimant/ aggrieved = claimant who has a claim against someone aggrieved is the one got injured

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lawyer (can be a repeat player)

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court

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one shooter

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repeat player

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experts

What makes a shooter different from a repeat player? -

A shooter is someone can be fighting for divorce or something only happened once (someone that approach court once) (custody), but the repeat player will be approached again and again from different people for the same exact problem (approaches court more than once), repeat players are actually interested in the real rules

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However, one shooters can be repeat players as well when for example the law is written and someone make a mistake and then the one shooter get blamed from several other people like what will happen to the repeat player

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Why is a lawyer kind of a repeat player? -

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There are two specialization to a lawyer: -

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The Mary’s story: -

Gossip: was one of the problems than reserved the community

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Balance:

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Shaming:

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Violence:

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The text talk about avoidance (move out) and endurance (live with it), but this community are poor people so it is hard for them to leave or move

Lecture 4, didn’t attend Tutorial 4, October 5th: Constitution act, 1867:  The constitution act and the BNA act are both supreme law, they created the new charter, one of the myths that they didn’t have rights before the charter but the bill of rights is an example of rights we had.  They both added a constitution rec, of treaty rights for the aboriginal people of Canada but they didn’t define the rights so the judges had to interrupt the rights  Canada departed from strict adherence to the doctrine of parliamentary supremacy  It wasn’t accepted by Quebec and was adopted over Quebec’s objections BNA, 1867:  It was to unite the provinces of Canada, it was passed by the British parliament, for the colony of Canada  Unites the then-existing 4 provinces of BNA as the dominion of CND  It limited constitutional recognition for the right of AB

Similarities:  They both divided the power between the federal and provincial levels of government Differences:  Added amendment formula (referred to as “Patriation” of the constitution – it’s Canada separating itself from 1867 – we don’t need to go through Westminster to make changes)  Before the constitution act of 1982, humans didn’t have much rights, there were not much equality; but later on, since the constitution act 1982 was created, the charter was also adopted in which the rights were written down and equally started to matter (formal equality) Two significant additions to Canadian constitutional law, to be applied in order to make future amendments to Canada’s cons. Lecture 5 didn’t attend Tutorial 5, Oct  Domestic violence: - It was okay to beat women because they were seen as property and it was a pactreiartchy  National context  International context (UDHR)  How do you recognize that this is a crime?  Marital rape wasn’t recognized as a crime  The Gulabi Gang: - A kind of legal conciseness - (Check YouTue) Lecture 6, Tutorial 6, Lecture 7, _____________________________________________________________________________________ Tutorial 7, Nov 2:  Social context education was for judges to teach them how to gain knowledge between different cultures, living and understanding. (to increase judges awareness of society, the diversity within society because it is a society that changes constantly)  Legal theory: read the mapping article if don’t understand  Natural law: - Where did it develop? Greece - The basic of it? Morality/ Christianity (the foundation) - Morals? Is to understand things in a morally way whether good or bad - It is universal cuz it effects every person in the society, although it is universal, it is superior to man-made cuz it’s God law  Positive law/ legal positivism: - It is not based on good and bad, but based on scientific - Not based on what law ought to be but on what law is - More specific on what is law right now - Sovereign, issue certain commands is law and obedience and if not obeyed there are sanctions (Austin) - (kelsen) talks about the pure legal of law , he says we need to study what law is not how politics and society affected in it. The study of law without all the other stuff around it

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Legal realism: - Law being part of reality - Focused on the reality - There is no distinction between the “ought” and the “is” argument that comes from the legal law and the natural law. Because what law ought to be or law is, is all based on the values of the society and how do society impacts law - Need to look and study law from an interdisciplinary perspective - Social values what make the law cuz based on different discipline such as religions, morals…  Contemporary theory of law: - Artifacturalism: takes natural law, positive law, and legal realism cuz law should be studied with all of these cuz it is reflected within the law and cuz it is enforced by the law - It builds up on all the three previous laws cuz law is based on social values - The link between other contemporarily theory: o Liberalism: separates the individual from the whole society, looks at the person as a person only. It is about the self o Brings up three main things: liberty (the law should give the person the freedom to determine what they want to pursue in self-interest), equality (every person within the society have the freedom to pursue) and neutrality (every person should be allowed to be able to pursue) o Harm principle: to keep a check on one individual using the freedom to decide what interest they are in - Postmodern and modernism: o Focused on progress that things will get better o Like liberalism there has to be consensus on social values o Consensus of social values: o Challenges the believes that what social values are o Complexity within the law o Identity is central to their position - Feminism: o Awareness of political and social application of sex and discrimination within the society o They should be treated equally 1) Integrate feminist 2) Radical feminist 3) Social feminist - First nations: o Believe in their own religious beliefs o Don’t believe in the rule of law - Critical race theory: - Queer theory: o Talks about equality - Critical disability theory: _____________________________________________________________________________________ Lecture 8, Nov 8:

Tutorial 9, Nov 9:  Essay: - Min 5 pages, max 6 pages (double spaced, 12 font) - Summary: o Vote o Fact o Issues - Analysis: o Three themes minimum (legal theories) – liberalism, legal consciousness, natural law etc o Social change o Federalism - Conclusion: o Agree or not? Why? o This part is basically about me - Title page: o My name, Student number, Ta’s name o Course number + tutorial number o Date o Identify the intervenor I am looking for o APA Format  Every right has a duty connect to it ...