Assessment

1) Wks 2-8 mc questions (6 sets)

 Reading & lectures of the week
Best of 5 sets = 25%

2) Case brief = 25%

-groups of 3, given a case and you have to present & explain what the case is about
-content & informative

3) Final paper = 50%

-drawing from what’s discussed in class & readings from textbook
-reflect on how the law is operated using examples
-application approach
-2500 words
-DUE: dec 11

September 12:

-why do we believe and have faith in the law

What is the Law

-the will of God -> rational thought
-divine & human
-product of reason (age of enlightenment)
-natural law & positive law
-sovereign’s command
-instrument to achieve justice
-instrument of social engineering -> removal of children in aboriginal families
-capitalist instrument of oppression -> the law protects property
-what the courts declare it to be -> judges make decision, precedent
-what is ‘posited’ -> what is argued is the law
-what lawyers argue for clients -> lawyers argue different versions of the law
-useful dispute resolution -> have bylaws
-way to order and regulate

**how can laws be differentiated from rules

Law: something we encounter either directly or indirectly everyday

-> Are just like spider webs; they will hold the weak and delicate who might be caught in
their meshes, but will be torn to pieces by the rich & powerful
-> Is the law equal for every person?
-the rich can mend the law and have advantage over the law
Hughes et al consider that the law is characterised by:
1) A system of rules and principles (that is enforced & people are aware of it!)
2) The rules and principles are imposed, authorised, or recognised by established with
proper authority in society
3) The rules and principles are recognised in some way (direct or indirect) by the members
of that society as governing their conduct and interaction with each other

Why do we have the Law?

-people are not solitary
-people are social
-societies experience conflict
-legal systems regulate conflict & aim to address anti social behaviour
-law facilities social control
-legitimises established social structures
-legitimises underlying power relations in society (status of the state is unchallenged)

What is the purpose of the law?

-limited protection (Nozick)
-restrict liberty only to protect greater harm (Mills)
-enforce conventional morality (Hart & Devlin)
-promotes illusory façade of freedom (Marx)
-challenge stereotypes (Graycar & Morgan)
-Legitimise power
-regulate & protect

Approaches to the Law

1) Legal Positivism
-there is no connection between law and morality (no capacity for individual interpretation)
-law is serviceable for evil as for good (Simmonds)
-law is necessarily just
-the law as it is, is not necessarily the law as it ought to be
-a law which actually exists is a law, though we happen to dislike it (Austin)
**the law can only change according to what’s in the law (slow, incremental change)

2) Natural Law
-rational order existing in nature
-discoverable by human reason
-source of universal & objective moral standards of right & wrong in human conduct
-> transcends the law within reasoning
-irrelevant whether recognised by legal system
-higher form of law
-capable of invalidating conflicting human standards
-moral validity is the pre condition for legal validity
-Grotius-natural law valid even if God does not exist
-do humans have natural rights (human rights)?
-Locke stated: no one should harm another’s life, health, liberty or possessions

Law and Justice

-Justice: fairness, moral rightness, system of law in which every person receives his due from
the system, including all rights, both natural and legal
-“this is a court of law, young man, not a court of justice”

Justice would frustrate consistency (D’Amato)

-many thinkers, notably Hans Kelsen, have argued that law and justice are two different things,
each unrelated to the other -> Kelsen wanted to achieve a pure science of law”, which was
ascertainable and predictable

Kelsen: justice must be separated from law

1) Law is determined but justice is indeterminate
2) Whether or not a law is “just” is a consideration that is external to the legal system
3) Justice under law simply means that a rule of law must be applied to all cases that come
within the rule

September 15 Tutorial

-Natural law: universally understood as moral principles

-transcendental -> anchored in reason
- no need for explicit
-separation with humans & not humans

Reason & Morality

Legal positivism
-law is only that which is on the page – it cannot and should not ever have any consideration of
the moral issues

-policy ideas change our conception of justice

-justice as an aim of the law
-hegemony: disproportionate power differential (heterosexual, cisgendered, white male)
-law as the preservation of order -> justice is incidental

-paper: talk about being on unceded territory, are we supposed to acknowledge it/how to
acknowledge, how we safeguard

Sources of law in Canada

1) Constitution -> check: filter new legislation, starting point, symbolic power
-charter of rights & freedoms
 feds: immigration, criminal law, foreign policy
provinces: health care, education
2) Legislation
3) Common law

-ethnicity = place, area of the world, culture, self-identity (multiplicity)

-lost of traditions, culture, feels isolated from own ethnic group

-race = physical, social construction

-white privilege
-white supremacy
-binary opposition = enables creation of the ‘us/them’ effect
-eugenics

-physical spaces of the courtroom:

-grandeur of institution -> elevated judge, plaintiff is seated closer to jury, fundamental
symbolism, performativity
-place of pleasure vs. place of trigger