A normative position regulates the (prescribed) behaviour of a group of actors in an institution (described by a set of norms). Our understandings of law and justice are intertwined with our normative positions, as are our ideas of right and wrong.

A haunted house is considered a house defect, one you cannot see by simply walking through the home.

Liberal critique of justice: the system is racist
ž Radical critique of justice: society is racist and law is a means for protecting white interests

King’s Peace – state assumes prosecutorial rights
Juries – judgment by a jury of your peers
Stare Decisis – “Stand by the decided case”

the necessity of conservation of life, the necessity of obedience, and necessity of the act of God or of a stranger

‘natural justice’ which arises from the ‘nature of things’ and exists independent of human action

‘conventional justice’ which arises from ‘human intervention’ and exists as a result of human action, such as the creation of laws, the administration of justice and the conduct of proper governance.

This position implies that people should be free to pursue their own version of the ‘good life’ insofar as their choices do not ‘bump up against’ or infringe upon, other peoples’ choices
That is, I cannot use my liberty to limit or interfere with your exercise of liberty

-The idea behind ‘positivism’ as a legal philosophy is that legal systems are ‘posited’, that is, they are created by human acts and imposed on people, and have no ‘natural or metaphysical’ existence
¡ Positivism views the proper study of law as focussing on understanding the nature of the legal system, as opposed to speculating about the morality of that system

-Subsidiary Sources
General & specific customs
Books of Authority
-Principal Sources
Legislation
Precedent

-Individual buys a commercial property in sept 201, 2 months later, the property was considered haunted in a local paper
- many people reported seeing some sort of figure in the home when no one was there
-The seller did not disclose this to the purchaser
-The plaintiff commenced legal action, court decided that there was insufficient evidence that the house was haunted
Judge: even if the murder was proven, the buyer would still have to prove that the alleged defect caused danger
-Plaintiff appealed: court said there’s no direct evidence of revenue loss as a result of a haunted house, case was dismissed

- Robert Latimer’s Daughter had Cerebral palsy, could barely communicate, needed 24/7 care
- Family goes to church, Latimer is alone with his daughter, family comes home and she is found dead, he claims he had no knowledge
-Autopsy revealed Tracy died of carbon monoxide poisoning
-Robert confessed and argued necessity – putting Tracy out of her misery

Based on the precedent established in Perka v. The Queen

This case established the distinction between necessity as an excuse and necessity as a justification for behaviour.

-Dispute resolution: (sometimes, not all the time) this is what we want it to do, they don’t resolve conflict, they end it. Only resolve the legal problem! Going to court is a zero-sum game.
-Denunciation: condemnation of unacceptable behaviours and thus the setting of boundaries on acceptable behaviour, and consequencing people.
-Deterrence - specific and general: If you behave how this person behaved, this is what will happen to you. Setting an example!
-Justice: can’t define It but you know it when you see it. Hard to articulate as going to court is a zero-sum game

Police, Judges & Juries

-Law and society as a “potentially boundless subject”
Roots in Legal Realism:
—-Focuses on the ways law is actually applied to, and impacts, peoples’ lives, and vice-versa!
—-Must understand the interrelationship between law and society
-Laws will reflect the dominant values, beliefs and customs of the society that creates it
Law is a mechanism for ordering social relationships and thus creating and reinforcing order in societies

Two components to judicial decisions:
Ratio dicendi – “the grounds for the decision”
Obiter dicta – “statements made in passing”

-Generality: Law cannot be suddenly made, you can’t just say “this is law”.
-Promulgation: People need to know the law and have access to the rules. Must be ABLE to know them
-No retroactive law: rulemaking is always prospective, cant retroactively apply it
-Clarity: everyone understands the rules, should be clear (hard in a complex legal system if you don’t know the precedent that has been established as a result of these rules – rules need to “live” through the court to properly understand them in society)
-Non-contradiction: the rules do not contradict each other, they need to have congruence and relate to one another, it must be compatible.
-Possibility of compliance: the rules do not ask the impossible of the people
-Constancy: the rules are not constantly changing – rules do change consistent with our internal morality e.g. Same-sex marriage, cannabis
-Congruence between the declared rules and official action; if you create a rule, you have to be able to back it up, and it must be consistent with what the rule is trying to achieve

- Violent storm, the ship is carrying a large cargo, and it capsizes – there’s 4 survivors: DUDDLY, STEPHENS, BROOKS, AND PARKER
 No food, other than 3 tins of turnip and NO water, then they caught a sea turtle. Everyone except Parker drank rain water, parker chose seawater. Lost at sea for 18 days – no food or water for 8 days.
Dudley suggested decisions needed to be made – important that the greatest number of people survive. Draw straws, whoever gets the short straw will be killed. Brooks said no. Dudley said parker is going to die anyways and Stephen says maybe – lets give him another day.
 After 24hours, Dudley and Stephens kill parker-Brooks doesn’t participate, but later he got hungry and he took a piece of him and ate it.
 They were later rescued- Dudley and Stephens were charged with murder, Brooks served as a witness to the court.
Significance: YOU CANNOT CONSENT TO YOUR OWN DEATH!
Does it alter the morality, yes! But you still cannot consent to death o harm being inflicted upon you.
AND
Did you have the choice/option to make the right decision? The law is about getting people to make the right choice when they are given options.

1.The law should facilitate or provide mechanisms for social interaction
2.As a manifestation of the communal will, law should mediate and regulate those interactions, and
3.determine when one person’s pursuit of their idea of the good has a negative effect on another person’s pursuit of the their idea of the good, and prohibit those interactions.

-“The emergence of law in its institutionalized form marks a fundamental stage of social differentiation”
-“Moral norms and customs differ from law “by the absence of a staff holding itself ready to use coercion”

Treaties
Distinctive practices
Principles of restorative justice & restitution

Christie a balck man, attempted to purchase a beer at a tavern in Montreal & was refused service
- new management
- At trial court, christie won, appeal: York won, SCC. York won
The Issue at S.C.C.:
S 33: no licensee may refuse, without reasonable cause, to refuse food service to travellers
¡ Whether s.33 of the Quebec License Act applies to the case
¡ Held: s.33 does not apply & “…it must follow that, when refusing to serve the appellant, the respondent was strictly within its rights”(p.108)
¡ Appeal dismissed, christie lost.
¡ Dissent: Insofar as the state involves itself in the sale of liquor through the vehicle of the License Act, the licensed merchant loses the right to pick and choose his clientele as he has a state-provided “special privilege to sell to the public”.
In effect, the S.C.C.’s decision avoided the issue of racism by focusing on the ‘letter of the law’

significance:
Legally correct, BUT decision is inconsistent with the larger concerns of social justice and combatting racism making it profoundly unjust

Fuller: The law is about rules, and you need to make effective ones for people to actually agree to be governed by them, through our legal system. We agree to these rules because we believe they are moral.

Finnis: Natural law is about what kind of choices we make. - Most of us have a natural sense of ‘what is good for us’ and thus are able to recognize the “self-evident values that lie at the heart of our human morality”.

-Nixon, a transgendered woman, was denied the right to volunteer for Rape Relief BC
- Nixon went through years of training, did everything she was supposed to do to adequately volunteer
-They denied her the right on the fact that she was a transgender woman
-Nixon filed a Human Rights complaint; case went to BC Supreme Court
-Court found against Nixon, although there was discrimination, Rape Relief was protected by BC Human Rights Code which permits discrimination for purpose of promotion of a particular group (in this case women)

BIG PICTURE: In refusing to recognize a more complex understanding of gender, the law limited different women’s pursuit of a ‘good life . THE NEED FOR MORE SOCIALLY PROGRESSED DECISIONS!

-Social norms also shape and influence how our legal actors and institutions function
ž-Legal actors experience the same social norms as the rest of us, and thus those norms impact how they perform their respective functions as police, lawyers, judges, etc.
ž- There are also a range of ‘legal orders’ in society that shape how we understand law, and what law we seek out to resolve which problems of order (legal pluralism)

Morton – value of precedent & stare decisis:
Certainty & continuity
“rule of law, not a rule of men”

Llewellyn’s ‘double doctrine of precedent’
Strict view of doctrine of precedent
loose view of doctrine of precedent

Yes,
-Race may be a legally and morally appropriate factor for jurors to consider in reaching a verdict of not guilty or against conviction
-mention liberal critique of justice vs radical
-ž Nullification as check on state power
ž Legal & moral arguments favoring nullification:
 Rule of law is more mythical than real
 Moral obligation to disobey unjust laws
 Democratic domination
ž Nullification, civil disobedience and state oppression

Significance:
¡ Liberalism – law should provide maximum freedom to each person
¡ Liberal legalism- role of law is to oversee social interactions, regulate and resolve conflicts of liberty
¡ But law is also rational and divorced from the larger context of those social interactions
¡ As such, law can be ineffective in resolving social, political or economic conflicts, which fall outside the realm of the purely legal
¡ Thus we must always be conscious of the ways law contributes to the reconstitution and reproduction of existing power relations in society.