law5.10.10.06 - Law/society Lecture 5 Continued from last...

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Law/society Lecture 5 October 10, 2006 Continued from last lecture Tradition and evolution of law - the roots of our law are assumed to have historically gone back in time, evolving out of customs/traditions o many legal scholars (including Maine) argue that there is a pattern about how law developed according to legal scholars, the development of law evolves through stages in which the content, form and process of which the law is applied change Maine is one of the earliest writers, and used an anthropological perspective to explain that law evolved through various stages The evolutionary development is heavily borrowed from the ideas of Darwin primitive to modern through a series of stages Maine assumed there is one pattern, all law went through the same changes Not the case, there are many different kinds of legal traditions The stages move towards developing a more perfect version of law Primitive law is seen as primitive and negative o Continental tradition (civil tradition) is the opposite of English Common Law In common law, we make the distinction between criminal and civil law Assumption that the people who interpret the law are the most important (judges, lawyers, law- makers) o Important to understand where their ideas come from o Much of the research dominating the sociology of law is about how people operationalize the law with their actions o Canadian law is dominated by common law, but also has civil law (in Quebec)
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The continental/civil law tradition involves code as the driving force for law, and the code guides all other things that follow One could arguably say that what is most important is the code – the written rule o The focus is more on how the rule came to be and what is involved in it o In civil traditions, two types of law are discussed – material law and organic law Material detail of the general rule (the expression of the code Organic the way of implementing the code - The links to the traditions of law have evolved, becoming more complex and distancing from the simplicity of Roman traditions o Empirically, there are societies with complex systems of rules/laws even though they do not live in a modern setting People criticize the assumption that complex systems only exist in developed societies Evolution of legal ideas - personal justice
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law5.10.10.06 - Law/society Lecture 5 Continued from last...

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