Law and society midterm study guide

Chapter 1

Homogeneity: Traditional societies are more unified because they share similar cultures. Rely
on informal legal systems.

Heterogeneity: Modern society is more unified because they share different cultures. Diversity
and customs are changing. Formal legal systems.

Legal culture: What shapes law, the beliefs, values etc.. shape a society’s laws. So you can see
the difference in law in different societies.

Sociological Jurisprudence: Study laws/ society the relationship, law to regulate conduct.
- Law as a social Institution (Rosroe Pound)

Jurisprudence: “Practical wisdom about law.”

First it is used to refer to abstract legal philosophy - the study of such topics as the general
characteristics of legal rules, of legal norms, of legal systems and institutions; topics of legal
reasoning and decision making; and topics of legal validity, legal rights and legal interpretation.
Approaches to these problems tend to group into 3 large kinds: legal positivism, natural law
theory and legal realism.

Legal literacy: Critical awareness about rights and laws

Customs: Rules of conduct in defined situations that are observed “without thinking”

Conventions: Rules of conduct, sense of duty/obligation.

Substantive law: Rights, duties, prohibition put in place by courts to what is allowed and not.
- Legislation, states, ex. Law on the legalization of weed

Procedural Law: How laws should be put in place, enforced, and changed. How it is used by
people in the legal system.
- After arrest, lawyer, investigator etc..
- Procedural Law refers to the methods and actions law enforcement agents must
take to arrest and detain you.

Public Law: Structure of government, duties and power of officials, relationship between
individual and state. (Criminal law)
- Environmental law
 - Tax law
- Ex. If someone steals items from a store, the criminal action is a violation of public law.

Private Law: Governing relationship between individuals.

- ex. Marriage, adoption, property.
- Two names is private, ex Ron vs jade

Civil Law: Conducts relationships of individuals with others.

-ex. someone who breaks a leg when he or she slips on an icy stairwell may sue for
compensation

Torts: Violations of civil statues, where an individual may seek redress in courts for harm she or
he has experienced.
- ex, assault, battery, damage to personal property, conversion of personal property, and
intentional infliction of emotional distress.

Criminal Law: Definition of crime and prosecution/ penal treatment of offenders.

-R v Smith- criminal R is king majesty

Common Law: Law is not based on acts of parliament but on case law, which relies on courts/
Judges.
- Canada is common but Quebec, common law on England

Consensus Perspective:
- Law promotes harmony and order
- Law is a neutral framework (to keep harmony)
- Maintains social integration
- Society characterized by diverse groups with conflicting interests
- Law reconciles conflicting groups
- Maintains social order
- Ex: There is general agreement in society that the unjustified killing of another human
being is reprehensible and should be punishable under the law.

Conflict perspective:
- Society characterized by conflicting groups, class, and dissection
- Law tool used by ruling class
- Law is a “weapon in social conflict”
- Every group/individual seeks to make their own interests
- Law protects property of those in power
- Represses political threats
 - Marxism, karl
- Those in power are the ones that create the law to keep people below them
- Ex: the employers wish to pay as little as possible for the employees' labor, while the
employees wish to maximize their wages.

Both perspectives have truth

———————————————————————————————————————
During which period did social conflict and social stratification become most prominent?

- After WWII end of 1945 interest in law

- Mid-late 1960’s period of social unrest, social conflict/stratification

How are the disciplines of sociology and law related?

- The disciplines of sociology and law are related in that
Values, norms, morality, interpersonal relations and social processes.

Aubert legal thinking vs scientific

- Law is more focused on the “Particular” rather the the “general”
- Ex specific cases
- Law does not focus to establish dramatic connections between means and ends
- Law does not create cause and effect, instead indirect relationship between legal
action and their consequences
- Ex. Impact verdict has on the defendants future
- Law is either valid or invalid
- Ether it was broken or not
- Law is based on past and present
- Law is all or nothing

Sociologist Study of Law

- Understanding Social processes and objectively describing and expanding social
phenomena
- Concerned with values, interaction patterns, and ideologies that underline the basic
structural arrangement in a society.
- Rules that prescribe the appropriate behavior for people in a given situation.
- Criticize social systems and processes
- Praxis
- The marriage of theory and action
- Sociologist conduct research to understand prevalence and impact of workplace
and discrimination
- Analyze Data, interactions, research
 - Take critical stance
- Actively engages change

Max Weber 3 Basic features of Law

1. External pressure to comply

a. With the law must come externally in the form of actions or threats of actions by
others.
2. Pressure is coercive
a. Force
3. Individuals Enforce law coercively under authority of the state
a. Those who instrument the coercive threats are individuals whose official role is to
enforce the law.

Donald Black 4 styles of social control

1. Penal
○ Police’s, laws, criminal codes
2. Compensatory
○ Contractual obligation, fines, seeing
i. Ex. Debtor failing to pay creditor
3. Therapeutic
○ Conduct defined as abnormal, rehabilitation
i. Ex psychiatrist
4. Conciliatory
○ How do you bring harmony and peace
○ Aims to reconcile the parties of a dispute and mutually restore harmony to a social
relationship that has been damaged.

- law to regulate/constrain behaviors of individuals

Law in Canada
- Judges interpret law
● Divided into branches
1. Constitutional Law
○ Public law
○ Determines political organization of state/powers
○ Setting limitations of governing powers
○ “The supreme law of Canada”
○ Charter of rights and freedom
 2. Case law
○ Enacted by Judge
○ Cases decided in appellate courts
3. Statutory law
○ Legislative law
○ Gov made
4. Administrative law
○ Created by administrative agencies in the form of regulations, order, and
decisions.
○ Huge in Canada
5. Royal prerogative or prerogative powers
○ Left in the hand of the crown
○ Code of Justice
○ Napoleonic code
○ How law changed

Principal Function of Law

1. Social control
○ Traditional, homogeneous society
○ Behavioral conformity
■ Social norms
■ Informal social control
○ Complex societies
■ Internalization of shared norms
■ Informal and Formal social control
● Formal key is law
● Law is formal- law enforcement
○ Characteristics of formal social control
● Explicit of conduct
● Planned use of sanctions to support rules
● Designated officials to interpret and enforce rules
2. Dispute Settlement
○ Law deals with legal disputes- Karl N. Llewelyn
○ Look at specific case not the broader issue
■ Ex. Employment discrimination
○ Informal dispute resolution methods like negotiation
3. Social change
○ Key functions of law in modern society is social engineering, includes purposeful
and planned efforts to bring social change
 ○ Law a social institution that satisfies social wants and demands of civilized
society, by ordering human conduct through politics
○ Sociologist sone don’t agree with this
■ Ex. Quinney views

Dysfunction of Law
● Conservative tendencies
○ Law tends to preserve the status quo and can be seen as stabilizing the existing
social order.
● Rigid framework
○ Legal rules expressed in general abstract terms which can limit their adaptability
to specific situations
● Restrictive aspects of normative control
● Inherent discrimination
● Wrongful convictions

Chapter 2

SCC- Supreme Court of Canada—> Good reason to get here

Court of appeal
Kings Branch
PC—> Provincial court is the lowest

Informal social control: Examples of informal social control include shaming a peer for
wearing very casual clothes in a professional setting. Conformity to groups.
- Small
- Homogenous
- Isolated
- Little division of labour

Formal social control: Formal social control is the structured and overt form of social control
that is enforced by the government through institutions such as the police, courts, and prisons.
- Large
- Modern
- Heterogenous
- Complex
- High division of labour

Primitive/traditional legal systems:

- Found in hunting/gathering + simple Agrarian societies
 - Laws not written but based on customs, traditions, religion, and values
- Law as unwritten norms
- Usually coexist with ancient norms
- Distinction between substantive (written laws) and procedural law
- Procedural
- Laws passed on with word of mouth
- How you go about doing things
- Constantly changing
- Function of this
- Preserve cultural elements
- Coordinate interactions
- Settle disputes
- Leaders enact laws(elders and chiefs)

Transitional Legal systems:

- Found in advanced Agrarian and early industrial societies
- Show increase complexity in the legal system due to differentiation from kinship
relationships
- Laws differentiated from tradition, customs, and religion
- Distinction between public law (gov-related) and private law (non-political)
- Criminal law differentiate from torts (private wrongs)
- Clear difference between procedural and substantive laws
- Laws become systems or rules
- Emergence of distinct statues: Judge lawyer, litigant, and court officials
- Roles of Judge, plus lawyers become institutionalized and require specialized training
- Judges don’t enact law but Interpret law
- Written records of court proceedings become more common
- Transition leads to bureaucratization of the court
- Clear a difference of legislative to Judicial and enforcement roles
- Legislative changes involve a group of laws pertaining to General problem areas
- Civil law to supplement common law
- Civil, tends to legitimize, inequalities in power and wealth

Modern legal systems:

- All the features of transitional system, but more distinguishable and defined
- Extensive networks of law, statues, codes, and rules
- Proliferation (large number) of administration law
- Increasing use of statutory law, or common law
- Clear hierarchies of law from constitutional to local codes
- Courts, mitigate and mediate conflict with professionalize lawyers, and judges
 - Law enforcement carried out by organized police forces
- Regulatory agencies oversee, law compliance
- Law mechanism of social
- Notion of modern law (Marc Galanter's conceptualization of contemporary law) hey Siri,
what’s

Natural law:
- European Pioneers
- Rooted in ancient Greece asserted that laws are based on reason and universal validity.
- Natural law is considered superior to enacted law, and arbitrary will is not legally final
when it conflicts with natural law
-
Legal positivism:
- Mid 19th century natural law gave way to legal positivism, which separated, legal and
moral realms.
- legal and morals, separate realms
- Focussed on positive law, created and enforced by state
- No good or bad
- Laws change
- Philosophy of Law that emphasizes the conventional nature of law that is socially
constructed

Intra vires: Latin phrase, which means inside the powers, an action that someone is not
authorized to do.

Dialectical materialism:
- Karl Marx
- An approach for explaining the transition from capitalism to Socialism
- Laws considered part of the SuperStructure responding to economic development

Rational procedures: use logic and scientific methods to entertain specific objectives.

Irrational procedures:
- rely on ethical, or mythical considerations
- Max weber

Substantive irrationality:
- Max weber
- Decision based on unique religious ethical, emotional or political facets, rather than
general rules
Formal irrationality:
- Max weber
- Rules based on supernatural forces without a clear rationale

Substantive rationality:
- Max weber
- Rules drawn from non-legal sources, example religion, ideology with a concern for just
outcomes

Formal rationality:
- Max weber
- Consistent logical rules applied equally to all cases as seen in modern western law

Kahdi justice:
- Max weber
- Part of the three types of administration of justice
- Descendant by Islamic sharia court judges, based on religious perceptions, locking
procedural rules, and somewhat arbitrary

Empirical justice:
- Max weber
- Part of the three types of administration of justice
- Referring to analogies and precedence, more rational, then Kahdi justice, but not
completely rational

Rational justice:
- Max weber
- Part of the three types of administration of justice
- Based on bureaucratic principles, Universalist and relies on logical analysis of abstract,
legal concept and rules

Repressive law:
- Emile Durkheim
- Punishing offenders to protect and preserve social Solidarity
- Associated with mechanical solidarity(homogenous societies)

Restitutive law:
- Emile Durkheim
- Organic solidarity( heterogeneous society)
 - Compensation, rehabilitation, and repairing harm to victims
- Modern society

Rule of law:
- Albert Dicey
- No punishment without clear breach of law
- Subjection of all too law as administered by courts
- Individual rights drive from court precedents
- Anyone can go to any court, unless restricted, ex a case with minors

Legal realism:
- Oliver Wendell Holmes JR
- Judges are responsible for formulating law
- Judges, exercise, choice
- Judges makes decisions based on their conception of justice

Indeterminacy:
- Critical Legal Movement
- Law seen as inherently, contradicting and inconsistent
====================================================================
● No specific theory accepted in law and society.
● Ways to categorize them

Formal codified law

● When do Formal codified law emerge?
○ Occurs when society’s complexity surpasses reliance on informal customs and
sanctions
○ When the social structure becomes so complex that informal mechanisms of
social control are no longer adequate
○ Informal control cannot maintain order
○ Society becomes larger and complex so does legal systems

Development tied to society

○ Industrialization, urbanization, modernization
○ Lager society's need formal legal systems

The European pioneers

● Most theorists agree that societal and legal complexities are interrelated; however, these
theorists differ on the particular mechanisms of the relationship between law and society.
● Early theorist based their theories on natural law
● 18th cen theorist moved from natural law to positive laws these theorists are
○ Aristotle- law is reason free from passion

- Baron de Montesquieu (1684-1755)

- Active in politics
- Challenged natural law assumptions
- Laws shaped by factors within a society, including customs, physical
environment, and history
- Against the absolutism, a French monarchy
- Law is Integral to a people's culture (our society right now)
- La result of many factors
- Separation of powers
- Legislative ( in Canada, to create law)
- Executive (confederation, enforce law)
- Judicial (interpret laws, make laws within jurisdiction (intra vires))
- Influence formation of USA constitution

- Herbert spencer( 1820-1903)

- British philosopher
- Challenged natural law, doctrines, and laid philosophical foundations for
unregulated economic competition.
- Evolution of civilization and law
- Homogeneity and heterogeneity
- Two main stages in the development of civilization
- Primitive/military(world war 1 and 2)
- Higher/industrial
- Sir Henry sumner Maine
- Founder/advocate of the English historical school of Law
- Legal history reveals recurrent patterns of evolution across different societies, and
historical circumstances
- “ the movement of progressive societies hitherto been a movement from statues to
control”
- Statues things were homogenous
- Control
- Change democracy
- Rigid
- Contract between society and state
Classical sociologist theorists
- Focussed on relation between legal and Institutions and the social order
- Theorist, guided by social science principles in analyzing how legal institutions, social
order, and social structure are related.
- Karl Marx most influential
- Karl Marx
- Society built upon economic foundation, known as the “ made of production”
- Influential to legal theorist
- Communist manifesto
- Mode of production, two element
- Physical or technological arrangement of economic activity
- Social relations of production
- Three principal assumption of law
- Law is a product of revolving economic forces
- Law is a tool used by the ruling class to maintain power/control over the
lower classes
- In a communist society, laws will wither away and disappear
- Dialectical materialism
- Conflict and Marxist approaches
- Focus on understanding, social behaviour through tension and conflict
between groups and individuals
- Society is an arena, where is struggles over limited resources occur
- Legal system serve to regulate preserve capitalist, relation
- Ruling class versus those who are ruled
- Separation of these classes, inevitably leads to conflict
- Critics conflict theory involves
- Enormous simplification
- Reification
- Absence of sensitivity to the complexity of social interactions
- Max weber (1864-1920)
- Typology of legal systems
- Law rational or irrational
- Formal law and substantive law
- For ideal types of legal systems
- Substantive irrationality
- Formal irrationality
- Substantive, rationali
- Formal rationality
- 3 types of administrative of justice
- Kahdi justice
 - Empirical justice
- Rational justice
- Emile Durkheim (1858-1917)
- Division of labour in society
- Law is a measure of the type of solidarity in society
- Mechanical (homogenous society)
- Organic (heterogeneous society)
- Two types of law
- Repressive law
- Restitutive law

Sociolegal theorists
● Insist law must be understood, in the context of relation of social life
● The scholars analyze the influence of social sciences in their analysis of legal
development
● Such theoretical breakthroughs as public opinion and legal development, legal realism,
and the trend of law have led to modern understanding of Lon society

- Albert Dicey (1835-1922)

- Theory emphasized impact of public opinion on social change
- Public opinion, “ the majority of those citizens who at a given moment taken an
effective part in public life.”
- Rule of law
- Oliver Wendell Holmes JR. (1841-1935)
- Founder of legal realism school
- Legal realism

Donald black
- Law as government social control, using legislation, litigation and adjudication, distinct
from other forms of social control, like etiquette and customs
- Law is a quantitative (can be measured) variable that can be measured by the frequency
by which in a given social setting:
- Statues are in enacted
- Regulations are issued
- Complaints are made
- Differences are prosecuted
- Damages are awarded
- Punishment is metered out
- Five measurable variable of social life
- Stratification (wealth, inequality)
 - Morphology (social differentiation)
- Culture (ideas, and conformity)
- Organization (centralization)
- Social control (normative distance)

Critical legal studies

- Roots an American legal realism, which rejected the notion that the rule of law was
supreme
- Legal reasoning is not free from personal biases and social context
- Indeterminacy
- Nothing about the law makes any judicial decision inevitable
- Reject idea that there is anything legal about legal reasoning
- Reject law as value, free, and above political, economic, and social consideration

Feminist theory
- Concerned with issues central to a broader, intellectual and political feminist movement
- Emerge from mass political movements
- Male-dominated, jurisprudence, perpetuated women as objects
- Three themes
- Woman struggle for equality
- Male bias in every feature of law
- Lies, not value, neutral, objective, rational, dispassionate
-
Critical Race Theory
- Concern with questions of discrimination, oppression, difference, equality, and the lack of
diversity in legal profession
- Rectify the wrongs of racism
- Racism is an inherent part of society
- Commitment to liberation from racism, the reason and separation of legal institution from
racist routes

1. What can the relationship between law and society be described as?
- Reciprocal
- In law, a reciprocal obligation, also known as a reciprocal agreement is a duty owed by
one individual to another and vice versa. It is a type of agreement that bears upon or
binds two parties in an equal manner.
2. What is the level of society described by developmental models?
a. Models include
i. Individual, community, and Social institutions
Chapter 3
Disputes: Conflicts of claims or rights and attempt to adjudicate between conflicting parties
- Disputes are both private and government

Adjudication: Process in which a judge vendors in official judgment in a civil or criminal case.
- Aims to resolve disputes through a legal process where parties present their evidence and
make their arguments following which a binding decision is issued. The process is similar
to that of a court hearing but is less formal.
- decree in the bankruptcy process between the defendant and the creditors.

Private dispute:
- Don’t initially involve public authority
- Disputes of everyday life ongoing relationships
- Alternate resolution
- Example marriage conflicts
- Without government intervention
- Some cases parties may seek legal red dress in courts, example civil cases, like breach of
contract

Public- initiated dispute:

- Government seeks to enforce norms of conduct
- Punish individuals who breach norms of conduct
- Binding legal norms
- Example, criminal cases where the state of representative take to use the court to
determine law, violations, and apply sanctions
- Always involves, and is governed by the law of the entire community
- Public forum
- Not always judicial variety of enforcement mechanisms
- Public-initiated disputes seek governmental mediation in order to enforce the law or
penalize those who break it.

Public dependent dispute:

- Governmental participants as defendants
- Challenge of authority of government agency or actually
- Initiated by individual or organization to question governments
- Claims that the government has not fulfilled its own rules

Trail courts:
- Provincial Court.
 - Court of King's Bench.
- Court of Appeal.
- Federal Courts.
- Supreme Court of Canada.

Court of appeals:
- The Federal Court of Appeal is a Canadian court that decides matters of federal law. It
may be described as national, itinerant, bilingual, bijural, and appellate.

Court of last resort:

- A court of last resort, often known as a Supreme Court, is usually the highest court.

Litigants:
- Disputants
- Individuals, organization, and government officials
- Settle disagreements and regular behavior of themselves or others
- Two types of litigant
- One-shotters
- Use courts occasionally, and are typically focussed on the outcome of the
specific cases.
- Ex. Author suing a publisher for breach of contract.
- More concerned with substantive results
- Repeat players
- Organizations such as finance companies, moving companies, etc.,
engaged and frequent litigation
- Frequent user of the courts
- Concerned with how decision will affect similar cases
Judges:
- Most prestige
- All the attention focussed on the judges
- Interpret the rules that govern proceedings
- Control the courtroom
- Autonomous, decision makers
- “Your honor”
- Court administrator
- Partial conferences
- Discretionary power
- Non Judicial functions
- Appointing officials to public agencies
- Federal court judges
 - Nominated by the president
- confirmed by majority vote and senate
- Hold office for life
- Can be removed only by impeachment or conviction of major crime
- Only way to be removed is the step down
- State and local judges
- Elected
- Appointed
- Hybrid method
- Almost all judges are lawyers
- Courts, interpret and apply the law
- Judges interpret the law, assess the evidence presented and control how hearings and
trials unfold.

Shadow Jury: A shadow jury is a group of participants, most often four to six, who are
demographically and psychologically similar to the actual jury who are hired to sit through the
trial and provide their reactions and opinions to a researcher/consultant each day.

Function of legislative bodies in law making

- Primary function is law making
- Also engage in conflict management and integrative functions
- MoSt state legislators and federal legislatures are bicameral
- Participants in the process
- Legislators
- Elected position of representative
- Participate in the activities, a federal, provincial and territorial or local
government legislative body or executive council, band council or school
board as elected or appointed members
- Executives
- Are a source of ideas and instruments of the Law
- Legal executives are a form of trained, legal, professional, and certain
jurisdiction. They often specialize in particular area of law
- Lawyers
- Lobbyists
- Hang out in the lobby
- Organizations and groups that attempt to influence political decisions
- Interest groups
- Political action committee (PAC)
- Act as
- Contact person
 - Campaign
- Informant
- Watchdog (spying)

Administrative Agencies
- These agencies are charged with administering the relative legislation
- Deal with social control
- “ fourth branch of government”
- Individuals affected by agencies on daily
- Food regulations
- Communication
- Consumer product safety
- Federal level
- Drive power from Congress
- Created to deal with crisis or emerging problems
- Substantial variation in the responsibilities, functions in operations of various
agencies
- Subject to pressure from interest
- Administrative agencies also have powers of/ affect rights of individuals through:
- Investigation
- Involves gathering of information
- Rulemaking
- Considered administrative law making
- Adjudication
- Administrative agencies equivalent of judicial trial

Steps in Jury selection

- The process of jury selection is called voir dire (to see to tell)
- Jurors question first, by judge them by lawyers, representing defense and prosecution
- Questioning used to obtain information to assist in the selection of jars to fair out bias
- Enables lawyers to develop rapport with potential jury members
- Attempt by both sides to try to change the attitudes, values and perspective of jurors
- Scientific jury selection
- Consist of three steps,
- first random sample is drawn from the population in the demographic profile of
the samples compared with that of prospective jurors
- If it is established at the That they are all representing the population at large
characteristics considered to be favorable to one’s own side, or than access to
determine the ideal juror for one’s side
 - After establishing the psychological and demographic profile of the ideal juror,
the social scientist can make recommendations for selection of individual jurors
- Issue of law
- Emerge as participant in the dispute, seek to identify and interpret norms that will
legitimize their behaviors
- Issue of fact
- Reconstruction description and interpretation of events
Chapter 4

Variety of perspectives on law making:

Rationalistic model:
- Proposes that laws are created as a rational means of protecting societal members from
social harm
- The definition of what’s harmful is influenced by lawmakers an interest groups
- Involves value, judgements, and preferences

The functional view:

- Laws emerge as a restatement of customs necessary institutions

- Laws are a special kind of reinstitutionalized customs
- Laws represent the voice of the people and our crystallization of existing norms
- Conflicts are marginal and contribute to social cohesion

Conflict Theory:
- Conflict perspective values dissensus, unequal economic access, and the resulting
structural cleavages of society, as the basic determinant of law.
- Laws are influenced by value, diversity and unequal access to economic goods
- Elite groups use social control, mechanisms, like lost him and taking their advantage
- Example of laws influenced by the elite group, include intellectual property rights

“Moral entrepreneur” thesis:

- Theory attributes, key events to the presence of enterprising individuals and groups
- They shape the moral constitution of society by defining right and wrong
- Example include laws against interracial marriage, and at maintaining white
settler, power and racial purity
- Moral entrepreneurs seek real and symbolic victories through lawmaking
- Create new code of right and wrong

Most important function of legislative bodies is to make law, the introduction of a

legislative plan typically goes through six stages:

What is the first stage of pre-law making activity?

1. Instigation/Publicizing:
- Of a particular problem
 - Example such as nuclear waste disposal
- Instigators include the mass media
- Or an author, who documents and dramatizes a social problem

2. Information gathering :
- This stage and tails collecting data on the nature, magnitude and the consequence of
problem
- Alternative schemes for solving the problem, and there cause benefits and inherent
difficulties
- Political impact
- Feasibility of various compromises

3. Formulation of a specific legislative remedy:

- Devising and advocating a specific legislative remedy for the problem

4. Interests-aggregation:
- Obtaining support for the proposed, measure from another lawmakers through trade-off
and compromises the campaigning of one interest group, where others or mediating
among conflicting groups

5. Mobilization
- The exertion of pressure, persuasion or control on behalf of a measured by one who is
able, often by virtue of his, or her institutional position to take effective and relatively
direct action to secure enactment

6. Modification
- The marginal alliteration of a proposal sometimes strengthens it, and sometimes grants
certain concessions to his opponents to facilitate its introduction.

Administrative Rulemaking:
- Single, most important function carried out by government agencies
- Agencies date regulatory policy through rulemaking
- Greater flexibility than adjudication

Administrative Adjudication:
- Process which specific limited parties bring a case of controversy to administrative
agencies for hearing
- Enroll making the agency is a prizing in advance those under the jurisdiction of what the
law is
- Adjudicative powers are given by congressional grants of authority
 - Inconsistencies- No stare decisis
- Require president to be followed bill, which will be discussed in contacts of
judicial law making
- Administrative agencies issues an order

Three types of Judicial lawmaking

- Scope has brought in from simply traditional cases to policy making
- Role of judges in policymaking
- Judges apply the law
- Create a law, making body not accountable to the public
- By Precedent
- Doctrine of Stare Decisis
- “Stand by what has been decided”
- Deeply rooted in common law traditions
- Judicial decisions, typically building on the president established by past
decisions
- In common law, countries judges base their decisions on Case Law
- Body of opinion developed by judges overtime in the course of deciding
particular cases
- The doctrine of precedent notion that the judge is bounded by what has been
already decided
- Opposed to civil law based on codes
- Easier for judges
- Takes less time
- Minimizes arbitrariness
- Compensates for weakness, and an experience
- Equal justice
- Allows individuals to plan their conduct
- Often revising restated
- Sometimes there is precedent
- Search for analogies and similar law
- Precedent weaker, and less authority to tip source of laws and statues
- By interpretation of statues
- Judges determined effect of legislative decision
- Rule of ambiguous legislative intent.
- Sometimes statues contain unintentional errors because of bad drafting of
law
- Sometimes legislative intent is not clear enough to interpret.
- Creative lawmaking
- Three main rules of statutory interpretation
 - Literal rule
- Set out that the statue should be applied, literally, regardless of
whether the judge approves or disapproves of its results.
- Golden rule
- Specifies that in cases where literal interpretation of the statute
would lead to logical absurdity and inconsistency the court can
move from the literal interpretation, but only so far as necessary to
remove the conflicting construction.
- Mischief Rule
- Attention should be given to the problem the statue was created to
solve.
- By interpretation of the constitution
- Actions and statues challenge on the ground of unconstitutionality
- More often in federal court and state court
- National Constitution considered more ambiguous
- Judicial review
- Judicial law making is generally directed at government agencies instead of
individuals

Influences on law making

- Interest groups
- Influence lawmaking through
- Test cases
- Amicus Curiae briefs
- assist the court with its decision-making by ensuring that all
relevant evidence and arguments are properly presented to the
court.
- Legal periodicals
- Law created because a special interest of certain group in the population
- Public opinion
- Interest groups
- Polls
- Elections
- Primitive societies easier to relate public opinion and law
- Complex society, heterogeneous nature causes less correspondence between
public opinion and law
- Identification of individuals, whose opinion is expressed in law making
- Three types of influences on lawmakers
- Direct
- Constituent pressure that offer a rewards or sanctions to lawmakers
 - Votes in election
- Group
- Exerted by organizized interest groups, representing a special
constituency
- Indirect
- Legislators act in accordance with constituent Frances, because
they either share such preferences or beliefs. Such a preface that
should prevail over their own judgment.
- Social science
- Research
- Expert testimony
- Government studies
- Misuse of data
- Misunderstanding of results
- Distorting results for political
- Social science, fixity of relationships
- Law dictate future performance

Sources of impetus of law include:

- Impetus fundamental prerequisite for setting the mechanism of lawmaking in motion.

- Social discord
-
- Scholarly research
- Academic research study
- Proposal of solutions to social problems
- Policy suggestions
- Exposing unknown problems
- Information gathering
- Mass media
- Functions in part as an interest group
- Direct interest in various areas of public policy
- Generates widespread concern about events and conditions
- Social movements and protest
- Artistic work such as novels

1. What are the ways legislation is generated?

- Proposed legislation is introduced in Parliament in the form of a bill which provides the
basis to amend or repeal existing laws or put new ones in place.
2. What triggers legislative response?
- Conflict
- Social unrest
- Environmental deterioration
- Technological innovation

5. Ruling making vs adjudication.

- Rule is a law made by administrative agencies

6. Over the years, what has happened to the rate of law making?
- It has increased

Chapter 5

Two basic processes of social control

- Internalization
- External pressures

Informal social control

- Folkways
- Establish norms of common practices, such as those modesty, etiquette and
language
- Examples
- Dressing modestly appropriately at work
- So speaking respectfully inappropriately in professional settings
- Covering your mouth when you
- Raising your hand when you have something to share in class
Mores: Societal norms associated with the tense feelings of right and wrong, and define rules of
conduct, simply must not be violated. Ex: Incest

Formal social controls characterized by systems a specialized:

- Agencies
- Standard techniques
- Predictable, universal sanctions

- Goals of punishment
- Retribution
- Incapacitation
 - General and Specific deterrence

Social control
- Civil commitment
- No criminal process that commits disabled or otherwise dependent individuals to
an institution for treatment without their consent
- Social control through administrative law is accomplished through licensing
inspection, and threat of publicity
- A license is an official permit to engage in a specified activity
- Control can be exerted by the revocation, suspension or refusal of a license
- Inspection of regular monitoring of activities, usually under the jurisdiction of related
- Set of publicity is especially effective against business and corporations in the negative
publicity produces adverse consequences

What is “internalization of group norms”?

- Many individuals undergoes socialization the process of learning, the rules of behavior,
for given social groups
- Individuals develop self control by being taught early what is appropriate excepted or
desirable in specific situation
- People acquire a motivation to conform to the norms, regardless of external pressures
- People conform to norms as individuals have been socialized since childhood

Victimless crime
- Drug addiction, gambling prostitution, this distinction between crime, mala in se and
mala prohibita
- Mala in se offenses are wrong by their very nature, while mala prohibita offenses
are crimes that are prohibited by law but are not necessarily wrong in themselves.

White-Collar Crime
- Poses a greater threat to society than many other crimes
- White-collar crime is generally non-violent in nature and includes public corruption,
health care fraud, mortgage fraud, securities fraud, and money laundering, to name a few