Class Note for LEGAL 250 at UMass(2)
Class Note for LEGAL 250 at UMass(2)
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This 5 page Class Notes was uploaded by an elite notetaker on Friday February 6, 2015. The Class Notes belongs to a course at University of Massachusetts taught by a professor in Fall. Since its upload, it has received 11 views.
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Date Created: 02/06/15
Access to the law and legal system is the ability to shape it both in its meaning and understanding While the factors that usually determine the power to shape law are not static in general access to law has been held by speci c groups of people the wealthy males whites and religious authorities In constructing the law these speci c groups have traditionally used their power to reinforce their dominant position and impede the ability of powerless groups to further their interests It is this position of advantage that allows the prevailing groups to maintain a svstem of inequalitv forti ed bv the law that protects their prosperitv while forcing the disadvantaged to appeal to problematic methods to promote their wellbeing as a result of their lack of access In his speech Address to the Prisoners in Cook County Jail Clarence Darrow de nes law as a creation of the rich who because of their wealth own and control most of the property and institutions of society Darrow 229 The access that comes with their wealth then grants them the power to construct the law in a way that sustains their elite position For Darrow as a consequence of this system of power the unprivileged individuals are forced to seek out other often criminal means of living in order to survive He explains this by stating The more that is taken from the poor by the rich who have the chance to take it the more poor people there are who are compelled to resort to these means for a livelihood 227 By wielding their power the rich have been able to consistently thwart the ability of the poor to access legitimate opportunities often leading them to participate in activities such as robbery and burglary in order to obtain money Thus according to Darrow the individuals in prison are not there on account of any inherent criminality but because they live in a system where the only way to ensure that their interests and needs are served is to break the rules of the game 229 As long as there is an unequal distribution of the power that allows individuals to shape the law there will consequently be a system that perpetuates criminal activity as a direct result of this imbalance In the eyes of Darrow the only way to prevent the poor from pursuing illegitimate means of survival is to create a system of equality in which the power to construct the law is not restricted to the wealthy thereby allowing for the promotion of all interests 230 Similar to Darrow Peter Kropoktin in his article Law and Authority discusses how a class of individuals in this instance religious authorities acquired the power to shape the law As society became more divided and autonomous over time Kropoktin claims that priests were compelled to institute laws that reinforced their control of society Because the power to shape the law was vested in religious authorities respect for the law came to be seen as moral behavior and thus a blind obedience to authority began Kropoktin 161162 According to Kropoktin it was this forced respect for those in power that led society into a state of rebellion He states Rebels are everywhere to be found who no longer wish to obey the law without knowing whence it comes what are its uses and whither arises the obligation to submit to it and the reverence with which it is encompassed 160 Kropoktin conveys the idea that a system of law founded solely with the intent of perpetuating the position of those in power is inherently problematic as it forces individuals into a state of contempt for the law and this undermines the very purpose for which the law was instituted Because religious authorities implemented a system of law that was intended to serve their authority instead of the interests of society individuals were compelled to question law its origins and above all its creators Marc Galanter in his article Why the Haves Come Out Ahead implies that proximity to the law and the legal system grants individuals the power to frame the law to serve their interests Galanter focuses on the role of repeat players or generally large units constantly involved in litigation that usually have the advantages of experience expertise and resources to promote their longterm interests A significant advantage of these units is their ability to choose which cases to adjudicate because of their constant involvement in the legal system Galanter 82 This allows them to subtly shift the law over time in a way that will best promote their interests thereby continually reinforcing their advantageous position Galanter notes those with other advantages tend to occupy this position of advantage and to have other advantages reinforced and augmented thereby 83 The ability to affect the law re ects power those in the inferior position are then forced to become involved in a system in which they benefit the most by having the least in uence on the law As a result oneshotters or units who infrequently become involved in the legal system are generally compelled to prefer a settlement in order to maximize their tangible gain 82 Oneshotters often lack the access to the legal system and the resources necessary to have the same relative power in constructing the law as the repeat players This unequal distribution of advantage is problematic because the law becomes slowly skewed towards the interests of the more powerful most often the repeat players Although the one shotters are compelled to prefer the options that will maximize their immediate gain they will simultaneously maintain a system of law that re ects the position of the more powerful Galanter claims that in order to equalize the advantage of both parties involved access to the system and the necessary resources must be made available to those who have not had them thus allowing repeat players and oneshotters alike to shape a law that encompasses all interests In her speech A Rally Against Rape Catherine MacKinnon understands rape as an issue of both sexism and racism as she describes a cultural perception of rape that protects the position of white men Historically the white male in American society has held more power culturally socially and economically and their superior position has given them the ability to shape the law to protect themselves With regards to rape this is most clearly seen in the societal misunderstanding of rape As MacKinnon notes the kind of rapes that are most commonly reported are those in which the perpetrator is a stranger an African American or both In reality though the most common rape experience is intraracial and is committed by a man the victim knows MacKinnon 81 Because women have been restricted to a position of disadvantage they have been forced to be silent about their experiences as a result of the cultural misinterpretation of what rape actually constitutes MacKinnon states part of the culture of sexual inequality that makes women not report rape is that the de nition of rape is not based on our sense of violation as she de nes rape as any time a woman has sex and feels violated 82 This misunderstanding of rape protects men by leading women to often not label their experience as rape because it does not agree with what society dictates is or is not rape in turn women have no other option but to remain silent When women are dissuaded from reporting instances of rape the misconception of rape is reinforced and the superior position of men and whites is protected by preserving a definition of rape that allows for their dominance over women Though not all of these authors offer alternatives to the problematic methods less powerful groups have been forced to perform they all make apparent the need to more fairly distribute the power implicit in the construction of the law Those groups that have tended to be more powerful in society have had the ability to shape the law to conform to their interests whether in terms of the meaning of the law or its understanding As long as only the interests of select groups of individuals are protected by the law disadvantaged individuals will continually be compelled to seek out other ineffective means in order to ensure that their needs are met In order for the structure of inequality to be destroyed access to the law and the ability to shape it must be given to all Works Cited MLA Citation Darrow Clarence Address to the Prisoners in the Cook County Jail Before the Law An Introduction to the Legal Process Ed John J Bonsignore et al Boston Houghton Mif in Company 2006 pp 225232 Galanter Marc Why the Haves Come Out Ahead Speculations on the Limits of Legal Change Before the Law An Introduction to the Legal Process Ed John J Bonsignore et al Boston Houghton Mif in Company 2006 pp 8189 Kropoktin Peter Law and Authority Before the Law An Introduction to the Legal Process Ed John J Bonsignore et al Boston Houghton Mif in Company 2006 pp 158167 MacKinnon Katherine A Rally Against Rape White Plaza Stanford University 16 Nov 1981
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