1. Introduction to Legal Studies – The Future of Law Today: The Future of Law & Course Summary Readings: Bowles & Gintis, “Structure: the Mosaic of Domination”; Sullivan & Tift, “Introduction: The Healing Dimension of Social Justice”; Nagy, “Postapartheid Justice: Can Cosmopolitanism & Nation-Building be Reconciled?” Course Summary: The Big Picture & Main Message The Final Examination What you need to know about the exam What you need to study

2. Introduction to Legal Studies – The Future of Law Bowles & Gintis: Structure: The Mosaic of Domination Power is ubiquitous and assumes many forms within society Liberal conceptions of power tend to assume it is predominantly ‘top-down’ Marxists focus on class domination, which is also predominantly ‘top-down’

3. Introduction to Legal Studies – The Future of Law Propose a model of power that differs from Liberal & Marxist conceptions of power in two main respects: 1. Although historical change is structured and systematic, change does not obey a single logic, “whether of enlightenment, modernization or productive capacities” (p.588) 2. Rejection of power as unitary and emanating from a single source in society

4. Introduction to Legal Studies – The Future of Law Bowles & Gintis’ Conception of Power -5 Propositions: 1. Power is Heterogeneous Power is everywhere and assumes a variety of forms 2. Power is not a “formless constraint’, but a structure of rules which both empowers and restrains actors in varying degrees There are many forms of power and thus many sets of rules Examples: institutions (banks), legal practice, general conceptions of property and personal rights

5. Introduction to Legal Studies – The Future of Law 3. The perpetuation of any power structure is generally problematic Structures are less vulnerable to revolution than to the everyday acts of resistance that will tend to reshape & erode those structures 4. Distinct structures of power are bound together in a common process of social reproduction They may be mutually-supportive or corrosive, but each structure may be expected to impact and interact with others 5. Peoples’ lives are governed by more than one power structure One may be a student, worker, parent, partner…

6. Introduction to Legal Studies – The Future of Law Bowles & Gintis assert that: Most analyses of power focus on structure, but structures are perpetuated or overturned by the actions of those people who function within them! So while structures shape and influence our actions, we can also shape and influence those structures by what we do Our activities are regulated by structures, but our actions also regulate those structures Power does not always equate with domination!

7. Introduction to Legal Studies – The Future of Law Power is the capacity to render social action effective, but action is structured by a specific set of rules of the game: 1. The forms and range of rewards of participation of individuals in a practice are socially regulated; 2. The range of feasible alternative ways of practice are socially delimited; and 3. The potential effectiveness of distinct types of practice are socially mediated

8. Introduction to Legal Studies – The Future of Law Sullivan & Tift – resistance and domination in the context of law Domination through monopoly of state law and legal structures But disputants resist domination in many ways: “lumping it” absorb conflict and deny state law access to it Seek informal modes of resolution deny state law access to conflict by seeking resolution ‘under the radar’ of official law Settlement Manipulate preferred legal outcomes ‘in the shadow of the law’

9. Introduction to Legal Studies – The Future of Law Restorative Justice as a Resistance: What is restorative justice? Views crime as violation of relationships Balanced focus on victim & offender Focuses on accountability as a way to restore ‘right relations’ between victims & offenders Uses shame positively to re-integrate offenders by focusing on the harmful act, not the actor Example: Navajo Peacemaking

10. Introduction to Legal Studies – The Future of Law How is restorative justice a form of resistance? Stands in direct competition with state monopoly over conflict and its resolution by: Challenging how state responds to conflict Challenging the state’s definition of harm Challenging social arrangements and processes that thwart human development & deny human needs Example: Accountability and Forgiveness in crime & conflict resolution

11. Introduction to Legal Studies – The Future of Law Nagy: Cosmopolitanism & Nation Building Cosmopolitanism: Focuses on the moral dignity and equity of all human beings as individuals, regardless of culture, nationality or citizenship, and of moral obligations beyond borders and of enforcing minimal standards of decency Resists statist views of international relations which focus on the nation-state as the ultimate source of legal and moral authority, reinforced through principles of non- intervention and national self determination.

12. Introduction to Legal Studies – The Future of Law Nagy analyses South Africa’s TRC as a “cosmopolitan quest by victims for national belonging” Analysis develops cosmopolitanism as a moral injunction protecting victims of injustice and cruelty Challenge is to reconcile ‘abstract universalism’ of (new) cosmopolitanism with concrete particulars Survivors of Apartheid use international human rights law to challenge state enrichment through apartheid- challenge failed but called attention to issue and contributed to development of human rights obligations for corporations

13. Introduction to Legal Studies – The Future of Law What do Bowles & Gintis, Sullivan & Tift, & Nagy tell us? Power is heterogeneous – we all have power and share in a variety of forms of power and agency As such, the future of law will be shaped by our actions and our resistance The key is to think critically about law and the set of social arrangements it tends to reinforce – is there a better way to seek justice than through law?

14. Introduction to Legal Studies – The Future of Law Course Summary - Topics covered this Term: Alternatives to adjudication Settlement & Collaboration in the Legal Process Access to Justice: Income Issues Lawyers & Lawyering Juries Judges Enforcing the Law (Nick) Law, Liberalism & Critics Connecting Law & Society (Tiffany) The Future of Law

15. Introduction to Legal Studies – The Future of Law The Big Picture: Law and Society exist in symbiosis Cannot understand the law without considering the larger context of its origins and influences Law and its structures, processes and authority will always be contested- for example: Eckhoff, Macfarlane & Sargent on mediation Moore on Therapeutic Jurisprudence Kennedy on insurgency in legal education Butler on Jury Nullification Contestation is a manifestation of the ubiquity of power!

16. Introduction to Legal Studies – The Future of Law The Final Examination- April 25, 9:00 a.m. What you need to know about the exam Same format as fall term exam Exam has 90 questions Questions are in 12 sections of 6-9 questions each, plus a section general questions What you need to study All lectures & readings Be guided by lecture slides!!

17. Introduction to Legal Studies – The Future of Law Next week: NO CLASS Professor will be available for consultation and questions during office hours on Monday, April 7 (9:30-11:00), D592 Loeb Bldg You may also email with questions or concerns: Jane.dicksongilmore@carleton.ca Discussion Groups will be held on Monday/Tuesday (term ends April 8)

18. Introduction to Legal Studies – The Future of Law GOOD LUCK & ENJOY YOUR SUMMER!