SOC323H5 The Law and Society Study Package

Readings Required for May 6, 2013

(1) Article: Democracy and the Rights Revolution By Michael Ignatieff

- Change known as the rights revolution which took off in the 1960‟s in all industrialized

countries

- Examples include: Women‟s Rights, Gay Rights, Aboriginal Rights

- Rights Revolution is a story of inclusion, of how previously excluded groups obtained

right of equality but also how rights serves to protect certain groups from the effects of

democracy. I.e. group rights to language and aboriginal rights to land and resources are

designed to enable minorities to protect that which is essential to their survival from the

power of elective majorities.

- Rights have a double sided relation to democracy: 1) rights enacted into law by

democratically represented express the will of the people, 2) but rights are also used to

protect people from the will, to set limits on that majorities can do.

- Rights revolution has a double aspect: 1) it is to enhance our right to be equal 2) protect

our right to difference. This is the essential challenge brought by Rights Revolution to

enhance equality while safeguarding difference

- Rights represent a legal attempt to give meaning to certain values; dignity, equality and

respect

- Rights are no just instruments of the law but the expression of our moral identity

- Rights are chief means by which human beings express there longing which is a global

phenomenon

- 1984‟s Universal Declaration of Human Rights is the history of struggle between colonial

minorities of color, women with full civil rights, and aboriginals trying to achieve self-

government

- Rights are a common value and are commonly expressed by the people

- All rights have a political impact and impose change and thereby shape historical periods

of reference i.e. battle of the Soviets demanding rights which set the collapse of the

“Berlin Wall”

- Rights Revolution is a story of struggle, another example includes property rights which

women fought for as men held the rights of all property

- Worker‟s Right- battle for union rights; petitions, struggle between those who have and

those who have not

- This can be related to Hobbes, your give up freedom and you come in contract with the

state, although the state may intrude on your freedom and rights thereby the price of

freedom is eternal vigilance

- Western Liberal societies are trying to make a democracy on conditions of total

inclusion; all have the same rights and the right to be heard “freedom of expression”. The

rights revolution is a conflict between the elites and the public who vocalize there wants,

this often provides the image that people are less obedient, less willing to leave politics to

the elite, the challenge arises between the elite policy makers and those who want change

in order to favor a particular interest.

- The rights revolution makes society harder to control, more unruly, more contentious,

this is because rights equality makes society more inclusive, and rights protection

constrains government power. What makes Canadian rights to interest is how ordinary

citizens have forced their way to the table of elites and contributed to the process of

constitutional change and its forever shifting results; driven by interest groups, citizens,

and nations

- Constitutional Change begun with Prime Minister Trudeau‟s desire to anchor Canadian

unity in the equality of individual rights: charter rights and freedom 1982, multicultural

heritage rights, language rights, aboriginal rights, women‟s rights.

- Canada has become the most distinctive rights culture in the world, first, on moral

questions such as abortion, capital punishment, gay rights and legal choice of liberal ,

secular, pro-choice. Second, our culture is social democratic, in its approach to rights to

welfare and public assistance i.e. free health care. Third, distinguishing factor includes,

our rights to culture, and emphasis on group rights.

- The attempts to define rights to succession: 1) to make secession easier by being

counterintuitive, having a written law, known and followed by all citizens, 2) avoid civil

ware amongst nations in terms of turmoil

- The British, American, French rights traditions, have enormous prestige, but have limited

applicability beyond Western Europe and North America, because individualistic rights

regimes do not capture the dilemmas faced by societies that are both multi-ethnic and

multi-national unlike Canada who preaches the virtues of group rights regimes and

federalist devolution as potential solutions to conflict between ethnic and religious

minorities inside nation-states.

- Canadian Charter Rights and Freedoms extend beyond the precedent of Canadian soil

other countries observe this right culture is what makes us distinctive because we

indentify ourselves through common threads.

- Rights Revolution has made Canadian democracy more inclusive, by including groups or

people who marginalized or exclude. Canadian politics attempts to exclude difference on

the means of gender, race, or culture, differences should be irrelevant, the ideal is to treat

all equally, although not everyone has benefited equally from the law.

- Despite elites trying to maintain equality they also provide the illusion of rights that

things are changing for the better

- It is not true that everyone has benefited equally from the rights revolution; there is a gap

between rhetoric and performance much like crime, and punishment, the practice of law

and written law.

- Charter Rights and Freedoms imposed to increase equality but in practice not everyone is

equal under the law or is entitled to particular rights

- Rights talk may be dividing its people because of how it is franchised and how it

recognizes particular groups. If group rights are granted, are groups allowed to have the

right to protect their identities from outside pressures or subdue individuals to abide by

them? Are minorities in a particular group deprived further of their rights i.e. women not

allowed to take part in Muslim prayer and so forth.

- Groups should be allowed to protest their cultures and practices against the intrusions of

the majority, but they should not be able to deny individual members rights of protest and

rights of exit.

- Right talks may produce equality but it also contributes to social inequality, while the

rights of some are heard others are ignored

- Limitations of rights talk as a language of politics: 1) right talk ends up monopolizing our

language of the good, i.e. some rights end up recreating the family for example equal

income between parents, equal rights to divorce, and management over property. Rights

language would ignore all other factors of family such as love, cooperation, and care…

family life through the removal/ inclusion of women‟s rights

- 2) Rights help us towards deliberation, towards negotiation, and it addresses inequalities

in the division of labor, between state and citizen and between man and women and

nation verse nation

- 3) Rights provide codes of what is acceptable and define the those liberated verse those

marginalized, those who have and have not access to rights, codes define the minimum

conditions of life, they define the negatives; violence, abuse, and define the positives;

loves forbearance, humor, charity.

- 4) Right regimes define not how lives should be led, but to define the condition for any

kind of life at all

- 5) Group rights enhance the freedom of individuals, although group rights and individual

rights are in conflict

- 6) Rights talk, can show opposing groups that theories right on both sides, thereby people

are more likely to understand one another when the common goal to achieve is equality

- 7) Rights talk also speaks to the type of community that we are, that we are deliberate

equals,

(2) Article: Pushing natives beyond the braking point by David Asper

- Canada built a military reserve on native soil and promised to return it when they were

done

- Natives have pursued their legal claimed, in order to resolve their grievances and take

control ownership of the land that was once there

- They have tried to mobilize opinion and effect change through elected officials

- Natives tried to apply the Canadian human rights law to their lands

- Natives have resorted to civil disobedience to have their claims acknowledged

- Natives right talk is not being heard

(3) Article: Justice Delayed

- Back log of bail hearings, deprived the fundamental justice of the accused, waited eight

days for a bail hearing

- Deprived liberty of one

Readings Required for May 8, 2013

(4) Article: Chapter Two Theoretical Perspective By Vago and Nelson

- There is no single, widely, and commonly accepted, comprehensive theory of law and

society, also many theories tend to overlap

Evolution of Legal Systems

- Formal codified systems emerged when a society becomes so complex that regulatory

mechanisms and methods of dispute settlement can no longer be dependent on informal

customs and social, religious, or moral sanctions. Emphasis on informal sanctions*

- In exchange of informal mechanisms are formal and institutionalized regulatory

mechanisms, changes in the organization of society results in a change of legal system

and those in power

The change from informal mechanisms of control to formal are based on:

a. Industrialization

b. Urbanization

c. Modernization

d. Globalization

- Informal sanctions are most adequate for small homogenous societies where the division

of labor is not diversified an Example of such community: Tristan Da Cunha. The

communities‟ reliance on informal mechanisms of social control used mechanisms such

as shaming, and open disapproval.

- But, in modern, heterogeneous, and complex societies with a high division of labor

formal norms and sanctions are necessary to control behavior so that society can continue

to function in an orderly fashion. The presence of the law is essential in the maintenance

of social order

Jonathan H. Turner

- Views legal development as a form of institutional adjustment to the ubiquitous (existing

everywhere, omnipresent) problems of control and coordination facing modernizing

society. He argues that modernization generates conflict, tension, strain, and disjuncture,

which force the development of law in society.

- Developmental Models- early sociologists all believed in the progressive development of

social patterns over long periods of time. These models deal with transformations at

various levels in society at the level of; individual, group, community, and organization.

- The underlying theme in developmental models is the identification of forces that have

produced transition amongst history and change

- Suggesting that the more complex a society is the more progressive of a legal system one

may encounter, integrated demands that push for transition either; political, economic,

educational, religious institutions, and industrialization.

- Turner speaks of the primitive, transitional, and modern legal system in depth:

1. Primitive Legal Systems

- Typically found in hunting and gathering and simple agrarian societies

- Laws are not written nor codified, laws are enforced by customs, tradition, religious

dogmas, and values.

- Substantive Laws consist or rights and duties and prohibitions concerning what is right,

wrong, permissible, and impermissible.

- Procedural Laws are rules regarding just how substantive laws are to be administered,

enforced, changed, and used in the mediation of disputes.

- Laws in primitive societies like all other societies permit important cultural elements:

a. They permit coordinate interaction

b. Settle disputes

c. Check deviance

d. Regularize Exchange

- In primitive societies there are no well-developed political subsystems, and laws are

enforced by religious leaders, chiefs, kin leaders, and elders

- Legislative bodies do not exist in primitive society

- Emphasis on common law rather than legislative law enacted by political bodies

(statutory law)

- Thereby the leaders of primitive bodies can enact both substantive and procedural laws,

because there is no written law, the chief legislator can strike, rescind (withdraw), or

change old laws more easily than the modern legislator

2. Traditional legal Systems

- Contain characteristics of advanced agrarian societies and early industrial societies where

the economic, educational, and political subsystems are increasingly differentiated from

kinship relationships

- Legal system more complex and extensive: law, courts, agencies, legislative structures

- Law becomes differentiated from tradition*

- Distinction between private and public law, it is concerned with the structure of law, the

duties and powers of officials and the relationship between the individual and the state.

- Criminal Law also becomes distinguishable from torts (civil wrongdoing) laws pertaining

to the wrongs by the state, community and public.

- The differentiation of law is reflected in the increased complexity of the courts, the role

of judges and lawyers become institutionalized and thereby need formal education, and

specialized training

- Bureaucratization (complexity) of the court emerges through division of roles within the

legal system

- 1) Laws enacted by the growing legislative body of the polity (particular form of

government/entity), can be applied systematically to specific circumstances by

professional experts (reliance of intellectual knower) 2) Where political legislation of

laws is absent, an established court can enact laws by handing down Common-Law

precedents

- Laws dominated by the political elite, give more comprehensive codes and statues for

societies to follow and abide by, as political development increases so does inequality

differentiating between people. Correlation to Ignatieff readings Group Rights, Rights

Revolution.

3) Modern Legal Systems

- Laws in the modern legal system are extensive networks of local and national statutes

(laws enacted by legislature) private and public codes, crimes and torts, common and

civil laws, and procedural and substantive rules

- A distinction of the modern system – is referred to administrative law, and the increasing

proportion of statutory law (written law) over common law (unwritten law).

- There are also clear hierarchies of law, ranging from constitutional codes to regional local

codes.

- The role within the courts become highly specialized and courts adapt to a role to mediate

and mitigating conflict, disputes, deviance, and other sources of malintegration.

- All forces of the court become highly Bureaucratized and posses internal organization

carrying out the law and enforcing the law through multiple realms aside from the court;

i.e. police agencies, regulatory agencies drug and alcohol consumption

- “ The Modernization of Law” enacted by Turner believes that rights and duties stem from

transactions, modern legal norms are universal, uniform and impersonal that is regulated

through chain of command and the written law meaning that rules and regulations are

applicable to all

Theories of Law and Society

- Understanding the general types of legal systems as they correspond to various stages of

modernization and social development: 1) the issue of legal development in all societies,

2) forces that produce or prevent change in a legal system

The European Pioneers

- The idea of natural law constitutes the bases for this exposition of law

- Natural law can be traced back to Ancient Greece, Aristotle maintains that the natural law

is based on reason that is free from all passion, as St.Thomas Aquinas argues that the

natural law is part of human nature, and through natural law, human beings participate as

rational being in the eternal laws of god

- The idea of natural law is based on the assumption that the nature of human beings can be

known through reason, and this knowledge can provide the bases for the social, legal

ordering for human existence. An appeal to superior forms of creations i.e. such as God.

- When an law does not coincide with the natural law it is unjust

Baron de Montesquieu

- Montesquieu challenges the underlying assumptions of natural law by presenting a

radically different conceptualization of law and society

- Law is integral to people‟s culture, laws are the result of a number of factors in society

such as customs, physical environment, and antecedents, laws therefore can only be

understood in particular contexts.

- Three types of judiciary power- legislative (to enact laws), executive (to enforce and

administer the laws), judicial (interpret the laws established by the legislative power)

Herbert Spencer

- Evolution consists of differentiation, individualization, and increasing division of labor

- Civilization a process from primitive to ultimate heterogeneity

- Governments arise gradually to the confines of action and the protection of personal

safety

Karl Marx

- Marxism

- Contributes a theory to social change due to economic growth, industrialization,

beaurcratization

- Every society whatever stage of historical development rests on an economic foundation

“mode of production” and the “social relations of productions” two combining elements.

- Determining variable is the „mode of production‟ , change in production also changing

the way in which groups are attached to the production of technology

- 1) Law is a product of evolving economic forces

- 2) Law is a tool used by the ruling class to maintaining its power over the lower classes

i.e. maintain status quo

- 3) In the communist society of the future, law as an instrument of social control will

“wither away” and finally disappear

- Law according to Marx is a reflection of social economic conditions, the means of

production are own and controlled by the elite class, laws is therefore a form of class rule

and dominance upon those who are not of the elite class.

- Law and the state are the main form of despotism and oppression

Max Weber

- Weber has a typology of legal systems based on two fundamental distinctions:

1) Legal procedures are rational or irrational, rational procedures involve the use of logic

and scientific methods to attain specific objective, irrational procedures rely on ethical or

mystical considerations such as magic or faith in the supernatural.

2) Legal procedures can proceed, rationally or irrationally with respect to formal or

substantive law. Formal law refers to making decisions on the basis of established rules,

regardless the notion of fairness. Substantive law takes the circumstances of individual

cases into consideration along with the prevailing notion of justice.

- Weber identifies three types of administrated justice:

1) Kahdri Justice- is dispensed by the judge of the Islamic sharia court, based on religious

precepts and is lack in procedural rules as to seem almost completely arbitrary.

2) Empirical Justice- the deciding of cases by referring to analogies by relying on and

interpreting precedents, more rational then Kahdri justice. Weber believes that traditional

and primitive laws are irrational

3) Rational Justice- is based on bureaucratic principles, basically universalistic, looks

toward contact, not toward status. Based on observable characteristics of the facts of a

case. Modern society sums up in a single concept: the rational. Modern law has become

institutionalized through the burcratization of the state. The acceptance of the law as

rational science is based on certain fundamental legal principal that involve judicial

decision that is based on the application of abstract legal proposition to a concrete

situation.

Emile Durkheim * good example to use for our current law focus from punishment to

rehabilitation *

- Outlines his thesis of law in society through the division of labor in society

- Tracing the development of social order through social and economic institutions

- Law is the measure of the type of solidarity that comes from a society

- I.e. mechanical and organic solidarity

- Mechanical solidarity prevails in a relatively simple and homogenous society whose

unity is ensuring by close interpersonal ties and similarity of habits, ideas, and attitudes.

Mechanical solidarity is associated with repressive and penal law. In undifferentiated

society a criminal act offends the collective conscience and punishment is mean to

protect and preserve social solidarity, punishment is a mechanical reaction. Punishment is

used to show the community that deviance will not be tolerated. No concern for the

rehabilitation of the offender.

- Organic Solidarity – is a characteristic of modern societies that heterogeneous and

differentiated by a complex division of labor. Restrictive law governs society with an

emphasis on compensation; punishment deals with restitution and reparation for hard

done to the victim. I.e. mirrors restorative justice.

Contemporary Law and Society Theorists:

- Donald Black: considers law as governmental social control behaviour is controlled by

these means as well as other forms of social control such as; etiquette, custom, and

bureaucracy.

- Law is quantitative it can be measured by a given social setting, statutes enacted,

regulations issued, complaints made, offenses prosecuted, damages awarded, and

punishment is meted out. The direction of law varies through these five qualities:

1) Stratification: can be measured in such ways as differences in wealth and rates of social

mobility (inequality of wealth)

2) Morphology: refers to the aspects of social life that can be measured by social

differentiation or the degree of interdependence (extent of division of labor)

3) Culture: can be measured by volume, complexity, and diversity or ideas, and by the

degree of conformity to mainstream culture.

4) Organization: can be measured by the degree to which the administration of collective

action in political and economic spheres is centralized.

5) Social Control: in which people are subjected is a measure of their respectability, and

difference between people indicate normative distance from each other.

- Therefore stratified societies have more laws because they are complex in nature, they

have greater inequality, which can be measured by the division of labor, and the amount

of law increases the growth of governmental centralization.

- Law in relation to stratification is more penal in style with downward direction, less

organized societies are more subject to penal law (harsher, punishable laws) and

organized people are subject to compensatory law

Current Intellectual Movements in Law

- Two ideal conceptions of society: consensus and conflict perspective

- Consensus approach governed through the functionalist and conflict perspective and

Marxists to study conflict perspective

- Functional Analysis focuses on examining social phenomena with respect to their

consequences for broader society, concerned with the characteristics of legal phenomena

and indicating how legal institutions fit into the workings of the overall structure.

- Theorists embracing Conflict and Marxists approaches emphasize the structuring of

economic relations that provide, for them, the foundation of various specific studies of

legal trends.

1. The Functionalist Approach

- Organic analogy, on how each part of the organism comes to function and contribute to

the survival and maintenance of a whole.

- Manifest functions are those that are built into a social system by design, understood

well by group members

- Latent functions: are factors that are unintentional and often unrecognized. Unanticipated

consequences of the system. I.e. minimum wage laws that were enacted to provide

unskilled laborers with an income slightly above poverty level. Which existentially

contributed to an increase in teenage unemployment

1) Societies must be examined holistically as a system of interrelated part

2) Cause and effect relation are multiple and reciprocal

3) Adjustment forces the system to make minimal changes

4) Perfect integration is never attained so that every social system has strains and

deviations, but there is a tend to neutralize

5) Change is a fundamentally a slow adaptive process rather than a revolutionary

shift

6) Change is the consequence of the adjustment of changes outside the system

growth by differentiation and internal innovations

7) The system is integrated through shared values

- I.e. Durkheim, deviance is central to the functionality of society

2. Conflict and Marxists Approaches

- Based on the assumptions that social behaviour can best be understood in terms of

tension and conflict between groups and individuals.

- Marxian notion of „economic determinism‟, economic ownership especially the

ownership of property, determines the organization of society. Also class structure and

institutional arrangements as well as cultural values and beliefs that are a reflection of

economic organization. I.e. White Anglo-Saxon’s, the law is built upon it*

- According to Marx, law and the legal system are designed to regulate and preserve

capitalist relations.

- Law protects the interests of those in power and serves to maintain distinctions between

the dominated and the domineering classes

- Law is seen as a set of rules that arise as a result of struggle between the ruling class and

those who are ruled.

- Breakdown of society into two parts: ruling class that owns the means of production and

and subservient class that works for wages

- Once conflict manifests, the state takes into consideration the interests of the ruling class

and develop laws to that serve to aim to control the threatening of the status quo,

therefore the state and the legal system reflect and serve the needs of the ruling clas

- Criminal law used in the attempt to maintain domestic order, underclass will continue to

be the object of criminal law.

3.Critical Legal Studies Movement

- Argued against the rule of law as supreme

- Law is inseparable of politics Pg. 45

- Judicial decisions are not based solely on models of reasoning but rest on grounds outside

the formal legal doctrine which are political

4. Feminist Legal Theory

- Concerned with issues that are central to a broader intellectual and political feminist

movement: sex-based equality at the work place, reproductive rights, domestic violence a

sexual harassment sexual preferences and rape.

- Political defeat of the Equal rights amendments; abortion rights, same-sex marriage

obstacles sexual subordination and exploitation in the profession of law and the general

provenance of sexism.

- Tough on crime policies also have negative consequences on women

- A dominant feminist legal theory is to regard men as the source of women‟s problems

- Society being viewed as a male dominated sphere/patriarchal

- Three predominant themes in feminist theory: 1) Women‟s struggle for equality in a male

dominated legal profession and in broader society 2) argument of male bias, extended to

include all elements of the law, the law is a reflection of male culture, a masculine way of

doing things. The law is therefore corrupted for women because of its inherent

masculinity. Thereby women face an entire new making of the law. 3) Law as a just and

fair institution, although law is not value-neutral, rational, dispassionate or consistent

because law if defined in a particular masculine way.

- Women question – designed to probe into the gender implications of a social practice or

law, take into consideration and the experience and values that are more typical of

women than a man

- Practical reasoning – deals with features not usually dealt with within the legal doctrine

women approach the reasoning process differently then men. Women more sensitive to a

context or situation i.e. access to abortion. Practical reasoning challenges the legitimacy

of norms.

- Consciousness-raising: provides and opportunity to test the validity of legal principles

through personal experience of those who have been affected by those principles. Use the

experiences of women and those of other women and to conduct newly informed insights

to challenge dominant versions of social reality

- The cult of victimhood has also become widespread: women are viewed as defenseless

and oppressed, social and sexual violence are treated the same, and men are guilty and

are to be held accountable

Critical Race Theory – Pg.50

- Concerned with questions of discrimination, oppression, difference, equality, and the lack

of diversity in the legal profession

- Attempts to rectify the wrongs of racism while acknowledging that racism is an inherent

part of modern society much like crime.

- Racisms is embedded in the legal system, critical race theory seeks to explore the ways in

which law and legal education and the practice of legal institutions work to support and

maintain a system of oppressive inegalitarien relations

- Focuses particularly on the context and experiences of those oppressed especially those

of color with the intentions of locating problems beyond the surface of doctrine and the

deep structure of law and culture

- Racism is an inseparable feature of modern society, merged with the concepts of justice,

truth and reason.

- Race is conceptualized at a macro level focusing on proponents of legal and

sociopolitical processes.

- Race is seen as a social construction, crime also, because of primary and secondary

deviance, relation to classical theories of crime collective consciousness, and punishment.

(5) Article: Letter from Birmingham Jail By Martin Luther King Jr.

- Luther King writes from Birmingham Jail

- Birmingham “justice” believes injustices are everywhere as a threat to justice everywhere

- Injustice are a result of the white power structures that are imposed on black communities

- Luther‟s response is non-direct action seeks to create a crises that would otherwise not go

noticed by the legal structure, if negotiation isn‟t up for debate the black community will

confront issues of race overtly through marches and sit-ins. Direct action creates a

situation in which opens a door for negotiation to arise for prejudices, and racism .

- “Freedom never given freely by the oppressor and therefore must be demanded by the

oppressed”

- Critical race theory comes into place because the experiences of the oppressed vary

different from those of the oppressor, those maintaining privilege and power do not

understand working towards rights as they have been granted them. Ex. Durkheim,

division of labor, conflict theory etc…

- There are two types of laws just and unjust laws, law is a man made code a an unjust law

is harmony with the moral law, an unjust law according to Aquinas is a law is a human

law rooted in both eternal and natural law. An unjust law is a code that is inflicted by the

majority onto a minority with attempts to and a just law is one that the majority compels

a minority to follow.

- When laws are meant to preserve segregation and deny citizens that‟s when laws become

unjust.

(6) Article: Civil Rights Pioneer By Rosa Parks

- Black women who refused to give up her bus seat to a white man sparked the modern

civil rights movement

- Post-Civil Ware Reconstruction required the separation of races in buses, restaurants and

public accommodations also keeping blacks away from many jobs, and neighborhoods in

the North

- Rosa parks charged of 14$

- The Montgomery bus boycott came in after a year of the supreme court landmark

declaration that separate schools for blacks and whites were inherently unequal, marked

the start of modern civil rights movement

- Calumniating the 1964 Civil Rights Act

Required Readings for May 14, 13 Contemporary Legal Theories

(7) Article: Women of Colour in the Legal Profession: Facing the Familiar Barriers of Race and

Sex by Neallani, Shelina.

Systematic Mistreatment

- Happens to women of color within the legal profession at two levels: first, in the

application of seemingly neutral practices that have an adverse impact on women of

color, and secondly, through an internalized dominance that is so ingrained that white

people are not aware of the attitudes, beliefs , and feelings they have toward colored

people.

- Examples of neutral practices that are discriminatory are (LSAT) tests excluding any

person that is not “test wise” , content of questions are biased, questions are constructed

by a particular class, cultural and racial group, that tend to represent their experience to

the world, those who do not share these similar views may face difficulties

- LSAT seen not as a reliable predicator of success in law school because they call on a

special kind of cleverness

- LSAT most commonly reflects the performance of white law school students aged 25

- The use of standardizing a test is done in relation to the status quo to maintain legal

profession as a white dominated career

- Women of color in law school are marginalized

- Limited aboriginal people in the legal profession, and in result the Native Law program

was instituted in 1976

- People of color are underrepresented in law school

Internalized Dominance

- Plays a powerful role in the systematic discrimination; it is the way in which dominant

members of society participate and contribute to the oppression of others.

- Messages based on others are perpetuated institutionally therefore race embodies a

particular context and within that context arises a social construction of race i.e. positive

message of white mainstream people and negative perceptions of people of color, all

messages are then internalized by others and institutions which act to dominate the

minority

- A lesbian women internalizes her oppression from three sources: white people, people of

color, and heterosexuals

- White mainstream people experience being included and expected and thereby have an

experience shaped by inclusion and very little struggle for rights as they are perceived as

normal by dominate society the same experience does not hold true for people of color of

different sexual orientation.

- The failure to understand exclusiveness is due to one‟s inclusion mainly misunderstood

by white people as they have not had to deal with being a minority

- People of color include descriptions when one‟ references another of “color a woman

versus a black woman” everyone is defined white unless otherwise indicated

- Internalized dominance also gives members of a dominant group the experience of

powerfulness and members of the oppressed group the experience of powerlessness.

- Internalized dominance is also within the terminology that we use i.e. “visible minority”

- Stereotypes concerning race and sex and the attitudes and messages of dominance my be

unlearned individually, otherwise we will not be able to rid our institutions of systematic

discrimination because the dominant group will not perceive it, and the will not be able to

see the flaws in “myth of equality”.

- Legislation has made attempts to eliminate discrimination although this has not been

done i.e. mandatory minimum and maximums serve to further discriminate those of the

lower classes primarily blacks and aboriginals, in extension legislation can not void

underlying stereotypes and internalized attitudes as it has been reinforced in the language

constructed by the law itself and those holding dominate positions.

Internalized Oppression and Binding Cultural Ties

- The women of color comes to law school with the conditioned response as an oppressed

person, targeted on her sex and race by dominant society, and by this she has learned

negative messages of herself and has internalized her own oppression

- The messages of internal oppression resonate with difference, powerlessness and feelings

of differentness

- This internalized oppression can reflect the acceptance of powerlessness and one‟s status

as a minority and thereby reinforcing further domination.

- Women of color are positioned along a spectrum in which women of color at one end

identify with and maintain their affiliations with their ethno cultural communities as

much as possible, and other women who have assimilated to the dominate group thereby

asserting dominate power.

- Women of color balance their cultural valued with those for the dominant society live

with conflicting messages about their roles and potential, they are always living in

opposition to maintain the status quo but stay true to their ethnicity. Those who assimilate

to the dominant culture its equality myth tend to perceive themselves as equal and has

having a greater chance of success in the legal profession, thereby distancing themselves

from their ethnicity and conforming to norms of the majority.

The Strategy of Racelessness – The Way To Succeed

- A raceless persona develops when people of color minimize their connections with their

racial ethnic background and assimilate into the dominant group, they take on the

attitudes, behaviour, and personas to closely identify with dominant culture

- This allows for a women of color to “circumvent stigma” and allow vertical mobility

- The dominate groups tends to accept certain racial groups more readily than others, also

one‟s position in the class structure also aids to aid to the image of racelessness

- Class has the power to minimize internalized oppression and to reduce domination*

- Oppression is lessoned if one is accepted by the dominant class

Out in The Working World

- Systematic employment discrimination in the legal profession occurs when procedures

and decisions on recruitment, hiring, salaries, and working conditions adversely affect

women of color

- One way of recruiting lawyers and students to law firm is through connection,

connections serve as a disadvantage because decisions are based on internalized

dominance, interviewer will like someone who is similar to the interviewer

- Interviewer may encounter bias on the basis of one‟s sex or race of an applicant

- If a women gets accepted if discrimination is based on race, race can not be discussed

amongst colleagues as if they are white colleagues they will not share the same

experience with her

- The number of work also reflects the amount of opportunity of women of color is given

even after she is hired, most women of color are given to prove themselves; on average

women of color have less contact with clients

- Lawyer is a male dominated profession particularly of the white male, women of color

who are lawyers feel as If they are constantly in need of proving there selves

- Canadian studies on discrimination have focused on sexism in law firms, but have not

dealt with issues of racism. Issues of Black women reflect the existence of systematic

race-sexism they face a double negative being a women in a male dominated profession

and being a women of color.

The Psychological Toll

- The psychological toll on women of color in the legal profession is high, with our success

comes alienation, racelessness, and loneliness.

- Achievements disapprove stereotypes but at the same time perpetuate the “Myth of

Equality” which allows the dominant society to continue in its blindness to internalized

dominance the gains of such profession for women of color appear to be a women of

racelessness as one has achieved a greater education, maintains a position higher then the

average, despite the upper mobility and status women of color still face discrimination in

the legal practice

(8) Article: A tale of Two Genres: On the Real and Ideal Links Between Law and Society and

Critical Race Theory By Laura E. Gomez

- Scholars of law and society have not been sufficiently attentive to issues of racial

inequality, racial ideology, and racial identity. The reason for not accounting these

variables is because scholars believe that race is readily measurable, dichotomous

variable that effects the law at various point (black/white)

- Rather than viewing race as a concept scholars must understand it as something that is

completely complex and that the relationship between law and race exists together, race

is constituted by law and its provisions that serve to disadvantage particular minority

groups over others

- The law is constituted by racial classification systems

- New legal scholarship “ Critical Race Theory” emerged in the 1980‟s and has captured a

popular audience as it reaches out too three areas: Asian American and Latino/Latina race

theory, race-oriented queer legal theory, and feminist legal theory focused on women of

color.

- Critical race scholars write about race and the law but do so from the perspective of

writing against the antidiscrimination model that been dominant in American

jurisprudence and legal scholarship, which in the last 30 years has been predominantly

written by white men

- The antidiscrimination model essentially racism and racial discrimination and

individualized, aberrational m and capable of remedy with the current jurisprudential

framework, both constitutional and legislative.

- Critical race theory formed in part from a rupture in critical legal studies “ that all law is

ideology, in the service of dominant class interests”

- Most scholarship has been focused on class and gender based inequality rather than race

inequality

- Today, race is treated as measureable independent variable that has led society and law

that initiates a collective myopia of race

- Critical race theories focus on racial identity, racial ideology, or racism the focus of their

inquiry

Race and Law and Society Scholarship

- Most of race theory operates on the level of dichotomy (black/white)

- The importance of understanding the historical period in which the race theory was

conducted is prominent to one‟s understanding

- Common themes amongst critical race theory and critical race theory:

1) Race is socially constructed

2) Law has played a major construction of race i.e. as it perpetuates internalized

oppression, creates a standard, and imposes systematic treatment on the those who

do not conform to the majority

3) Race has shaped law, through racial ideology and racial conflict

Laws Role in the Social Construction of Race

- Race is a social construction, the racial classification is historically contingent and the

product of political contestation

- Racial difference has been viewed in association to what is considered „mainstream‟ and

the shift toward the civil rights movements that viewed racial categories as devoid of

meaning and as a result has led to human interaction, politics, and social conflict. The

shift from viewing race as something fixed and biological to viewing it as something

dynamic and historically contingent has been accomplished by the social sciences

- Social constructionist have valued that race is contemporary and historically and

culturally specific

- Racial identity is continually reconstituted based on intersections with other bases of

identity

- Critical race theories examine the Intersectionality of race, class, gender, and sexuality

and more specific stereotypes grounded in racist ideology which has shaped white

demand for segregation

- Colonial transfers of power

How Race Shapes Law

- Critical race scholars are equally concerned on how race in all its manifestations have

come to shape their existence within the law

- Scholars have argued that law and society are mutually constitutive, at one level it might

seem plausible to take on a traditional sociological approach to race which treats race as

an independent variable that impacts law as the dependent variable. But also come to

think of law and how race shapes judicial discretion and bias

- In order to explore race it must be narrowed to the level of an individual or a particular

group that is being racially targeted and view how these racial identities come in conflict

with the law

- Another way to complicate the issue of race is to conceive race more than a racial identity

or racial category i.e. how white supremacy has led the legal doctrine governing racial

classification Ex. Rosa Parks

- We need to explore how race constitutes law by looking at the law in action rather than

legal doctrine

- How law has historically shaped the identities of blacks and how those messages have

translated over time into law

(9) Article: Judge’s Gender, Political ties influence ruling: Study; Charter Challenges, family

law cases most likely to reflect jurists politics, gender By Iain Marlow

- A judges political stripe and gender have a significant impact on their rulings in certain

types of cases in the Ontario Court of Appeal

- Judges differ in opinion in regards to Charter challenges depending on whether a liberal

or conservative has appointed them

- Softer on crime – liberals

- A judges gender is most pertinent in the family law disputes, when men appeal a ruling,

all male panels were statistically slightly kinder to females

(10) Article: First Women on Supreme Court: Pioneering By Tracey Tyler

- Wilson died at the age of 83 was one of the most controversial and intriguing judges and

was a pioneer in shaping the charter of rights and freedoms

- One of Wilson‟s most important decisions on the court was a family law case involving

the division of property, with whom she had built a beekeeping business was left with 40

beehives and $1, 500

- Wilson also held up the case of women who shoot her common law partner in the back of

the head an upheld the battered women‟s perspective

- Wilson in 1994 chaired a Canadian bar association task force on gender equality in the

legal profession

- Wilson‟s position within the court allowed for governments to appoint women much

more easier to the courts

Required readings for May 15 The Charter and Constitutional Rights

(11) Article: Constitution of Canada: The British North America Act 1867, the Constitution Act

1982, the Future of Federalism, and the Charter of Rights and Freedoms By Boyd

The History

- Two Tsartlip Indian Band of the Sannich Nation, were hunting at night when they shot at

a decoy deer set up by provincial conservation officers in order to trap illegal hunters.

- Both were charged with multiple offences under British Columbia‟s wildlife act 1)

hunting with a firearm during prohibited hours, 2) hunting with the aid of illuminating

light and or device 3) hunting without the reasonable consideration of lives, safety or

property of other persons

The Majority View

- The Tsartlip right to hunt at night with the aid of illuminating devices is protected by the

North Saanich Treaty

- These hunting practices before the relinquish took control over their lands, was

acknowledged by the judge as the practice of hunting always occurs at night with an

illuminating device

- The rights to hunt are different for the Tsartlip before the treaty

- Although it is in no case to put human lives in danger which restricts hunting to

unoccupied lands

- Legislation has thereby conflicted with treaty in a way that constitutes a prima facie

infringement, the protection of treaty rights prevails and the provincial law cannot be

incorporated under the Indian act

The Minority View

- The impugned ban on night hunting with a firearm is valid provincial legislation that

applies to the accused

- The Wildlife act falls within the provinces powers, whose purpose is directed at public

safety aimed at reassuring the safety of the provinces hunter and residents

- A treaty must be best interoperated in manner that best reconciles the interests of the

parties

- The right to hunt is protected by the treaty although it is subject to internal limit,

including not to hunt in an entirely hazardous manner, therefore hunting with an a firearm

is province‟s regulatory power in defining this internal limit

- * The case of R. v. Morrison demonstrates the historical tension between treaty rights and

current legislation. The question posed is how are we to maintain aboriginal rights with

provincial and federal law?

The British North American Act, 1867

- This acted united the provinces of Canada

- Respectively setting the powers of the federal and provincial governments under section

91 and 92

- Section 91 gives the government residual power to legislate in relation to manners that

appear not to fall under any specific provincial or federal jurisdiction in order to evoke

“peace, order and good government”

- The statue of 1867 defined a new country of Canada its legislation was based by Britain

not Canada.

- These events led Canada and other dominions of the British Empire lobbied by the

British government for their auto many for a mechanism that would remove their

continuing colonial status.

The Constitution Act, 1982

- Embodies two significant additions to Canadian constitutional law, the first is a formula

to be applied in order to make future amendments to Canada‟s constitutional structure

- The second, legislation in the mould of the U.S bill of rights the Canadian Charter of

Rights and Freedoms which is designed to be used by the courts to protect the rights

accorded by the Charter to Canadian citizens.

Amending the Formula of the Constitution Act

- Created by the constitution act of 1982 which sets out three types of amendments that

requires support from the house of commons and the Senate

1. An amendment to the constitution of Canada may be made by proclamation issued by the

governor general of the senate and the house of commons

2. Resolutions of the senate and the house of commons

3. Resolutions of the legislative assemblies of at least two-thirds of provinces that have in

the aggregate according to the then latest general census, at least 50 percent of the

population of all provinces.

- At least seven provinces must approve constitutional reform one which must be either

Quebec or Ontario.

- The second type of amendment to constitutional law requires the unanimity of the federal

government and all provincial governments.

Sections 91 and 92: The Distribution of Legislative Powers

- Division of federal and provincial power first set out in the British North America Act of

1867 and remained intact in the Constitution Act of 1982

- Section 91 sets out the area over which the federal government has jurisdiction; laws of

peace, order and good government.

- Section 92 catalogues the jurisdictional powers given to the provinces; in each province

the legislature may exclusively makes laws in relation to matters coming within the

classes of subjects next herein-after enumerating that is to say of the constitution of the

province, except as regards the office of the lieutenant Governor.

Questions of Jurisdiction: When Provincial and Federal Responsibilities Collide

- Section 91 and 92 have been subject to shift since the legislation began in 1867

- Language of the sections are not clear on whether provincial or federal legislation should

prevail

- Section 91 gives the federal government residual power over areas of jurisdiction, R. v.

Hauser punishment for those who commit narcotic offences

- The federal forcemeat in perceived states of social or economic emergencies may act

unilaterally in addition to narcotics to control alcohol prohibition

- The lack of precision in sections 91 and 92 has been clarified by the courts, the courts

have determined legislation as either “intra vires” inside the jurisdiction or “ultra vires”

outside the jurisdiction

- Federal law has exclusive power to legislate criminal law

- Section 92 also gives each province the power to legislate in relation to property and civil

rights, in extension gives the provinces power to control the administration of justice, the

organization of courts, and the procedure to be employed in civil matters.

- Only 10% of cases is hear by federal controlled criminal and civil courts

- I.e. Federal governments have jurisdiction over the regulating of marriage and divorce

despite it being a provincial matter

Rejection of the Constitution Act 1982 By Quebec

- Quebec never approved the constitution act of 1982

- Believed that the constitution act would diminish the provincial powers

The Wooing of Quebec: The Meech Lake Accord

- Mulroney‟s government attempt to bring Quebec into constitutional fold led to the meech

lake account

- Première Bourassa, would be willing to accept the constitution act on a number of

conditions one of which he called for the recognition of Quebec as a distinct society

- Quebec wanted a distinct society status although in doing so excluded many individuals

primarily minorities

- Once Meech Lake Accord fell through, the Charlottetown accord was Quebec‟s second

attempt which were composed of changes to the senate, the composition of the house of

commons and aboriginal rights

- The Canada Clause, Pierre Trudeau objected the classification as a Quebec as a distinct

society

- By increasing the number of senates, the purpose was to balance representation by

population and by representation of region

- Although in order for legislation to be changed Charlotte Accord would need consent

from both provincial and federal governments.

The Canadian Charter of Rights and Freedoms

- The second significant edition to the constitution act was addition of the Charter

- Its passage signaled a controversial shift in power from the legislative to the judicial

branches of government

- It became the tasks of the judges to determine the legislation of either the federal or the

provincial governments offender the core value of the Charter

- Charter requires judges to set aside legislation that contravenes a protected right

The Canadian Bill of Rights of 1960

- The charter was not the first Canadian law to deal wit the rights of citizens, the

conservative government of John Diefenbaker enacted the Canadian Bill of Rights

- Which were founded on the principles of God, the dignity and worth of the human

persons and the position of the family in a society of free men and institutions

- I.e. constituting fundamental rights and freedoms; religion, speech, assembly and

association and freedom of press

- The fear/criticisms was that the bill would bring Canada closer to an American model in

which the judiciary acts as a check on the possibility abuse of legislative power

- Two counter arguments to the concept of parliamentary supremacy is based: the core of

calls to which all Canadians subscribe, enunciated in the bill of rights and the charter and

secondly in view of the ongoing process of interpreting ambiguous law, Canadian judges

were already involved in lawmaking before the bill of rights was enacted

- Bill of rights used as a federal stature