ILLT Flashcards
What is law?
body of rules which govern society
What is common sense of law ?
loosely articulated ideas already formed about law by living in society
Three pieces of common sense about the law
- without the law there would be disorder
- no point arguing with the law (the law’s the law)
- the law applies to everyone equally
Rebuttals to common sense law
- It can be problematic when the law is applied equally (caveat emptor) as sometimes certain groups need to be treated differently (children)
- sometimes the law seems to apply everyone but actually is targeted at specific groups (stop/search)
What is ideology?
set of beliefs by which we make sense of the world
Why do we respect law?
it claims to be neutral and impartial and just which legitimises it and persuades us to respect/obey it
The ideology of the law is rhetorical
a rhetoric is an argument meant to persuade and which wants to be taken as truth
Azande Diviner Analogy
like the A.D judge does not work on insight or intuition about what outcome should be but they use their knowledge of the laws and how to apply them. Judges use laws to justify decisions rather than reach decisions
What creates order?
The acceptance of law and its authority
Our belief transcends merit
we still believe in law despite not agreeing with it
How does law inherit prejudices?
Law constructs order in its own image/its maker’s image which reinforces the prejudice of its makers
Theory of social control
institutions such as education designed to produce citizens who are willing and able to control themselves and be good citizens which explains why society maintains order most of the time
the law used to control the poor
social control used institutions like the welfare state to give the poor just enough to live on to prevent riot/rebellion
Role of Social scientific knowledge
-‘social science’ attempts to study how societies function using scientific methods
Role of medical/psychiatric knowledge
- attempt to define and measure the normal and abnormal
- they create the idea of deviance and delinquency
What is legal power ?(Foucault)
- doesn’t care about motive and isn’t about rehabilitation because it is to reassert an incumbent power
- responds to acts directly
What is disciplinary power? (Foucault)
- attempts to reform as it applies social and scientific knowledge about deviance/deviant families
- all about motives/nature of the offender to explain breaches of the law
Repressive hypothesis (foucault)
- repression of discourse of sexuality in victorian times mirrors how power operates as repression (power to prohibit or deny access)
- in this pandemic law has been used to repress and keep us at home
What is the belief of ‘rational grounds’ (Max Weber)
-the belief in the legality of enacted rules and the right that those in positions of authority have to issue them
Why do we obey the law?
-it appears to be rational/reasonable and it offers certainty and transparency
What is precedent?
-law reports in which law can be found to appeal/make cases
What is ‘stare decisis’ ?
- lower courts must follow decision of higher courts
- appellate courts ordinarily follow their own previous decisions
- lower courts do not follow their own decisions
How do court of appeal make their decisions?
- cannot appeal from decision of supreme court
- can only depart from their own decision if supreme court has dissenting opinion, when they have made decisions that conflict, if they decide their earlier decision was ignorant of statutes/binding decisions
Ratio decidendi
the reason for the decision in a case, the principle or principles of law the court uses to reach its decision
