Background. Socio Sociology History Jurisprudence Social psychology Economics Etc.

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1 Content Page 1 Background Monday, 31 July :36 PM Socio Sociology History Jurisprudence Social psychology Economics Etc. Law Influences and reflects Beliefs Ideas about how the world operates Tangible and intangible Values Normative standards of good and bad Norms Rules effecting action Community standards E.g. Of morality Symbols Technology Language Socio-legal Scope/definition "Looking at the law in its social context, from the perspective of the social science" Harris 1983 See below An adjunct to the law Socio-legal imagination Perspective employs looking at: Structure Underlying organisation of society E.g. Economic, gender, religion, politics Constrains human behaviour Institutions Norms Values Culture Transmission of knowledge Norms and values History How society has changed over time Must understand post to understand present Agency Extent to which individuals and collectives can be agents of their own destiny How they can change and transform themselves and wider environment Including institutions Critical Questioning and constructing how things could be

2 Content Page 2 E.g. Alternatives and policy recommendations Interdisciplinary Beyond just the 'black letter' law Uses social science concepts and theories Analyses: Law Includes legislation and cases Legal ideas and concepts Legal institutions Law in the context of society Social, cultural and political phenomenon/institution Central to this: Social and legal theory Jurisprudence Positivist What is assumed by key ideas which appear in the law Because law is socially significant Law is embedded in society and social/cultural practices "Worth studying for social interest and importance" Cotterrell 1992 "Law is too important to be left to the lawyers" John Bonsignore Engages with/interprets the law Effects of law Types Substantive Statutory Case/common law Creatives, defines and regulates rights and duties/obligations Of: Individuals Collective State or nation What should be done in private relations Civil What should not be done Criminal Procedural Purpose Resolve disputes Maintains social order Reinforces community values Helps the disadvantaged E.g. Anti-discrimination law Stabilised the economy Regulates banking Taxes Prevents the misuse of power Linked to justice Law seeks to reflect justice A moral value Definition Just behaviour or treatment A concern for justice, peace and genuine respect for people Fair and reasonable Administration of the law or authority in maintaining this

3 Content Page 3 Contested term Types Distributive How a nation state distributes resource to its citizens How? Conflict? Retributive How guilt or innocence is determined Procedural How guilt or innocence is determined

4 Content Page 4 Law, morality and values Thursday, 3 August :41 PM Definition Green, 1970, 425 Ethic/mores (characteristic customs) of society Society's idea of what is right and wrong Morality is not universal Can differ across cultures What happens in multi-cultural areas? Whereas law: Means by which society ensures that its mores are protected by its institutions Institutions which have a role in regulating society: Religion Law Health Connection between law and morality/values Laws based on moral reasoning/judgments Provides a reason for regulation Alongside health reasons Honore (1993) Relation of morality to law forms a central part of legal philosophy A guide to conduct Guides and assesses conduct in terms of impact on others Mores of a community Practices Moral opinions of community E.g. Good, bad, right, wrong Moral views which stand up to rational scrutiny Defensible Indefensible E.g. Torture This one calls for legal supplement Morality is political Contested Not fixed E.g. See homosexuality example Majority good/support can interfere with right of individual See homosexuality example Tone is moral Words like "fair", "proper", dishonest", "unconscionable" Reflects dominant views unless the view is contentious, in which case it reflects the lawmakers' view? Common law is the product of long evolved social values Religious foundations Ecclesiastical courts were run by the church E.g. Offences deemed as blasphemy Some clergy argue there is no distinction between moral and criminal code Some clergy argue there is no justification for it to be a considered a crime It poses no threat to society Some not covered in law E.g. Vindictiveness and greed Inverse relationship too

5 Content Page 5 Law influences society's moral view E.g. Watering restrictions make doing so illegal, making more people view it as unacceptable E.g. Laws against asylum seekers could sway people against asylum seekers/towards undermining respect for their human rights Mandatory detention E.g. Anti-racial discrimination legislation intended to modify public opinion Should it? No John Stuart Mill The only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others Principle of liberty Wolfenden Report: HLA Hart Legal Positivist perspective Denies connection between law and morality Freedom of citizens from interference in private matters Based off JSM's position Punishment inflicted Does not prevent unjustified harm/threats to citizens As other law does Different views on right and wrong/vague laws E.g. Definition of "obscenity" in censorship laws What is 'vice'? Society's existence not threatened by morality Maintaining moral standards would prevent change Harmful/side effects E.g. Drugs sold through dealers in hard drugs E.g. Illegal abortions are expensive Are laws which enforce morality effective? Side effects 'Underground' Health risks Bribery E.g. Fitzgerald Report: removing legal dimension to prostitution would remove bribery of police by prostitutes Victimless crimes Some 'immoral crimes' subordinate women E.g. Sex slave trade Overreach of the criminal law "The state has no place in the bedrooms of the nation" Pierre Trudeau, in Green, 1970, 422 Irrational enforcement E.g. Jaywalking E.g. War on Drugs Expensive Legal drugs which are still damaging untouched E.g. Opioid prescription drugs E.g. Alcohol E.g. People still smoke marijuana Waste of community resources Wolfenden Report (1957) Homosexuality should no longer be a crime

6 Content Page 6 Yes Not passed in law until 1967 Still consider homosexuality and prostitution as immoral Bull, Pinto and Wilson; Homosexual Law Reform 1991 Laws against immoral behaviour are impossible to enforce Just private behaviour? Discriminate against a minority in Australia Cannot be regulated out of existence Values of society provide no justification for continued discrimination 54% supported law reform in 1974 Fitzgerald Report 1989 p186 "Those who take part voluntarily in activities some consider morally repugnant should not be the concern of the legislature" James Stephen Criminal law in this country actually is applied to the suppression of vice and so to the promotion of virtue to a very considerable extent: and this I say is right Wolfenden: Lord Devlin Natural law perspective Homosexuality and sodomy = immoral = a crime Criticised report's findings in 'The Enforcement of Morals' Cannot have separate public and private morality 'Greater good' argument Offends 'identifiable community morality', which is of more importance, even if in private Trumps individual autonomy Examples Noticeable in criminal law reflecting morality about sex Punishing thieves and murderers protects life and property Legislation on sex/sexuality is morally based Legislating against private, consensual acts Most repealed Thus solely because of immorality at the time See above about religion E.g. Criminal law reflects what is condemned as immoral E.g. Law of negligence stemmed from Donoghue v Stevenson (1932) Moral duty one owes to their neighbour E.g. Biopower Control over populations' bodies Michel Foucault E.g. Abortion E.g. New birth technologies Law is still distinct from morality as a concept Moral obligation to obey the law? Some have argued that immoral/unjust laws don't deserve to be called laws Or obeyed Legal duty E.g. Doctor forced to perform abortions Moral duty to obey? Comes down to personal morality E.g. Nelson Mandela was on terrorist watchlist What if 51% approve but others don't? Exceptional times? E.g. War on Terror E.g. Pacifist conscientious objector

7 Content Page 7 Interplay between law, morality and torture Prohibited in international law Violates human rights Antithetical to good governance and liberal democracy When is interrogation torture? E.g. Sensory deprivation Justifications for prohibition of torture Consequentialist Utilitarian/'greater good' Harms of torture are greater than they seem Benefits are smaller than expected Not applied in the 'appropriate' cases Deontological Absolutist Morality constrains the pursuit of desirable consequences Permits the pursuit of morally undesirable consequences? Even if torture is likely to prevent great harms, it is still impermissible to torture Prohibition not dependent on whether the consequences of torture are worse than not torturing International Convention against Torture endorses this position: "No exceptional circumstances, whatsoever, whether a state of war or a threat of war May be invoked as a justification of torture" Threshold/moderate/quantification deontological position You can break the rules in extreme cases Goes against the philosophical position War on Terror '24' Jack Bauer TV show Broke rules to stop threat Aired just after 9/11 While Bush administration went into Iraq 'Ticking bomb' justification Efficacy of torture People will ignore moral values (against torture) when ordered to