Introduction to Legal Studies – Connecting Law and Society Review: Liberalism: basic tenets: theory of personhood that assumes a ‘rational, free- choosing autonomous self that is independent from the community and other selves’ society should be governed by liberty, equality and neutrality: the State and the law should strive to provide each citizen with maximum freedom in which to determine & pursue their own conception of ‘the good life’ 11

Introduction to Legal Studies – Connecting Law and Society Within Liberalism, primary tasks of law include: Facilitate mechanisms for social interaction & mediate/regulate those interactions Determine when one person’s interactions have had a negative effect on another and prohibit those negative interactions (Harm principle) 2

Introduction to Legal Studies – Connecting Law and Society Liberal Legalism evident in law in: Adherence to precedent Separation of judicial and legislative functions of government Adherence to procedural formalities 3

Introduction to Legal Studies – Connecting Law and Society Three cases illustrate disconnect between legal and factual equality: Christie v. York Corp. [1940] S.C.R. 139 Delagamuukw v. B.C. [1997] 3 S.C.R Nixon v. Rape Relief B.C. ( June 2007) 23 W.R.L.S.I. 27 4

Introduction to Legal Studies – Connecting Law and Society Responding to this disconnect: “Racially-Based Jury Nullification…” Liberal & Radical critiques of U.S. justice system Arguments for jury nullification: Rule of law is more mythical than real Moral obligation to disobey unjust laws Democratic domination 5

Introduction to Legal Studies – Connecting Law and Society Bartholomew & Boyd: Must be conscious of how legal equality undermines factual equality Law is a site of struggle! 6

Introduction to Legal Studies – Connecting Law and Society Today: Connecting Law and Society Readings: Hagan, “The New Legal Scholarship; Problems and Prospects”; Sargent, “The Pedagogic Challenge”; Engel, “Does Law Matter in the Constitution of Legal Consciousness?” 7

Introduction to Legal Studies – Connecting Law and Society 8 Sargent: ‘Positivism’ and legal education ‘Legal Positivism’: law as a “normatively closed form of knowledge and system of enquiry which have few, if any, necessary reference points to the social, political or economic environment in which law operates” (p.143)

Introduction to Legal Studies – Connecting Law and Society 9 Is it adequate to see the law as a thing apart from society? Sargent: law is a social construct and thus must be studied, learned and understood as both a thing informed by, and informing, society

Introduction to Legal Studies – Connecting Law and Society 10 Hagan: “The New Legal Scholarship; Problems and Prospects”: “Doctrinal Approach” to study of law No real connection between law and society ‘law in books’ versus ‘law in action’

Introduction to Legal Studies – Connecting Law and Society 11 Legal Realism: Focuses on the ways law is actually applied to, and impacts, peoples’ lives, and vice-versa! Must understand the interrelationship between law and society!

Introduction to Legal Studies – Connecting Law and Society 12 But Legal Realism took this interrelationship a bit too far, leading to two streams of post-doctrinal legal scholarship, including: Critical Legal Studies Empirical Behavioural Studies

Introduction to Legal Studies – Connecting Law and Society 13 Critical Legal Studies: “Normative interpretive legal studies” Study of law and legal relationships within larger social, political, historical contexts Example: Khan’s analysis of Nixon v. Rape Relief BC

Introduction to Legal Studies – Connecting Law and Society 14 Empirical behavioural studies: Analyze and frame legal issues from a position of value neutrality – explicate the disconnect between law and society examples: Mnookin, ‘Bargaining in the Shadow of the Courts…”; MacCauley, “…Contractual Relationships in Business…”

Introduction to Legal Studies – Connecting Law and Society 15 Engel, “Does Law Matter in the Constitution of Legal Consciousness?” Explores a continuum of perspectives on the impact of law in legal consciousness

Introduction to Legal Studies – Connecting Law and Society 16 Ewick & Sibley, Sarat Look to ways in which law orders our daily lives and how the power of law shapes the practices of every day life in which we contest (engage and resist) the power of law Ie., Millie Simpson & ‘small acts of resistance’ Greenhouse and Yngvesson Focus on ‘communities of meaning’ & relationship between courts and communities & between the legal & the extra-legal

Introduction to Legal Studies – Connecting Law and Society 17 Engels: Three ‘old ideas” impact the analysis of legal consciousness: 1. Different substantive areas of law are associated with different perceptions, understandings, and must therefore be distinguished in research on legal consciousness Do different fields of law understand law differently?

Introduction to Legal Studies – Connecting Law and Society Law is multicentred and takes many forms; it is not always an instrument of state power and the relationship between law and the state is an appropriate focus of study There are many sources/layers of law in society (informal law, traditional law, etc.) which all exist in a constant state of dynamic tension characterized by resistance and accommodation Understanding legal consciousness requires an appreciation of the over-lapping fields of law

Introduction to Legal Studies – Connecting Law and Society Law does directly influence individual lives, but more often law is mediated through social fields that filter its effects and merge official and unofficial systems of rules and meanings The impact of law on our lives depends on the overlapping legal fields in which we function

Introduction to Legal Studies – Connecting Law and Society 20 Summary: Law and society exist in symbiosis, each influencing the other If we wish to understand law, we must understand the larger context in which law functions Focus must be upon relationship of law and society!