UW LSJ 375 - The Social and Political Roots of Law

Unformatted text preview:

Tuesday, April 22, 2014Day #7!The Social and Political Roots of Law -don't take precious time recapping the case !-show you can apply evidence (US Supreme Court is bound by its precedent so use Case Law) !-any scholarly or legal evidence you want to include is fine!!!!!Slide 1: !What is the relationship between law and political order?!What are the practical implications of differing theories of the nature and role of the law?!! -In English Common Law a customary right can become an actual legal right!! -In other cases a customary right becomes very strong but doesn't have any actual legal weight (unspoken relationship between the police and the public) --your indoctrinated into a set of social norms !!!!!Slide 2: !Two basic schools of legal analysis: Gap Analysis & Domains of Conflicting Norms !! -Single Text: 60mph on freeway, Gap analysis says that here's what the law means, and in analyzing the relationship between law and custom it shows how much you have broken the law !! -Domain of Conflict; conflicting norms about what the law actually means (max Vaber and tragedy of power)!•Law as an external, objective social facts vs. dynamic "domain of conflict" (there is conflict between legal disputes) !•Custom survives and remains in tension with the law, and "rights" such as pig keeping persists apart from formal law !•An argument against positivism: reducing law to the "command of the sovereign" ignores competing visions of social order!•Law is better defined as "an area of conflict within which alternative social visions contended, bargained, and survived."!•Hartog is not making an argument for total relativism: the law does have a reasonable range of possible meanings!! -positivistic model has a misinterpretation!! -rather than thinking about the law as a fixed object, think it as an arena of conflict where alternative social visions (different ideas about how people think the world should map out) contend, bargain and survive!! -He is not saying anything goes, does think it has some range of meaning. It has some grey area but is not completely indeterminate !!!!!!Slide 3!•But these meanings are neither fixed nor certain )If they wee, we wouldn't need lawyers and courts)!1Tuesday, April 22, 2014! -answering a question of what the law means cannot be separated from the political, social or contextual contexts in which the law remains within !•The law always exists in a given cultural context, which changes over time. Remember; society changes law, and law changes society!•Implications for today: defining public order, the drug war !!!!Slide 4: Thomas Hobbes- Leviathan (1651)!•One of the most important sources of our present ideas about legal and political power!! -what we think fundamentally about nature determines how we deal with other people (and how we treat them) !•Hobbes has a deeply pessimistic view of human nature!! 1. competition: people are naturally competitive (as soon as we throw competition in the mix trust is gone or harmed) !! 2. Diffidence !! 3. Glory: we all think we've better than anyone else-- our needs come before other peoples ("artifist of social defaces") !•The "state of nature" is the imagined natural condition of humanity. Competition, diffidence, (mistrust) and glory (vanity)!•In this state of nature, "homo homini lupus" - "man is a wolf to man" !•On a large scale, this leads to the "bellum omnium contra omnes" -- the war of all against all. This is an untenable situation that prevents any normal social activity (present-day examples?) !! -in an environment where you are in constant fear--how can you get anything done?!!!!!!Slide 5: !•All people by nature is jus (pronounced: yus) (freedom or liberty, justice), which can be exercised, renounced or transferred at will. It's opposite is lex (law) which creates binding obligations !!! 1. you can use it !! 2. you can give it away!! 3. you can transfer it !•Once transferred, absolute individual freedom becomes absolute sovereign power!! -once was once before your individual absolute power now becomes the power of a sovereign !! -once you transfer your liberty to the sovereign you now owe your allegiance to the sovereign and the sovereign owes allegiance to the whole of the people !•This transfer creates a social contract between the people and the sovereign. Under the contract the sovereign now embodies the collective will of the people!! -you don't harm the citizens of sovereign countries because the sovereign embodies the will of the people !! -if you the individual is harmed then the extension is that the sovereign is harmed !2Tuesday, April 22, 2014•Therefore, law originates in the will of the sovereign. Hobbes' argument represents the early roots of legal positivism (law is the command of the sovereign) !! -the law binds people, ties them together and crates obligation where none actually exists !! -Hobbes is the current founder of legal positivism !! -all of us left to our own devices--its not law, we are left to our own brute force !•The state as 'mortal god' -- source of "over awning power" that enables stability and society!! -state gets them to do what they would never do with their own self interest !!!!!Slide 6: Chapter 13 !•People are essentially equal in their physical, and even more so in their mental abilities!! -not saying that some people are more intellectually capable than others !! -we use our mental and physical abilities to service !! -he means the ability to put one over on the other guy (cunning)!•This equality is matched by equal hope and equal desire, which in turn leads to mistrust (diffidence)!! -people are also equal in their desire!! -more of less we have the same amount of physical and mental capacities!! -we have an equal amount of ambition and self-interest !•Diffidence on a large scale leads to violence and war!•We seek to inflict "dommage" (damage) on our "contenders" (Despisers_ which sets an example for all would be adversaries (don't mess with me) !•War is the constancy of threat, not just actual combat (think of Hobbe's bad weather analogy--its not just that people fear about being rained on, the very fear of the rain messes up the plans. Having to live with fear creates constant distractions) !! Constancy of Threat: !!!!!Slide 7!•Constant war makes society impossible, and life is "solitary, poore, nasty, brutish and short" (102) !•Anything goes "where there is no common power, there is not law, where no


View Full Document

UW LSJ 375 - The Social and Political Roots of Law

Download The Social and Political Roots of Law
Our administrator received your request to download this document. We will send you the file to your email shortly.
Loading Unlocking...
Login

Join to view The Social and Political Roots of Law and access 3M+ class-specific study document.

or
We will never post anything without your permission.
Don't have an account?
Sign Up

Join to view The Social and Political Roots of Law 2 2 and access 3M+ class-specific study document.

or

By creating an account you agree to our Privacy Policy and Terms Of Use

Already a member?