HannahSchwendemanSampleofNotes.pdf LSJ 367
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This 4 page One Day of Notes was uploaded by Hannah Schwendeman on Friday October 31, 2014. The One Day of Notes belongs to LSJ 367 at University of Washington taught by Cichowski in Fall. Since its upload, it has received 188 views. For similar materials see Comparative Law and the Courts in Law, Societies, and Justice at University of Washington.
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Date Created: 10/31/14
Hannah Schwendeman Sample of Notes LSJ 367 Comparative Law and the Courts Taken in OneNote originally Norms Rules Law a Norm o 0 stable patterns of behavior descriptive actual behavior the English shake hands the Japanese bow to meet for ex principled human behavior prescriptive how ought to be behaviors that are encourageddiscouraged in certain social group country etc you should do this shouldn39t do that what prescriptive means do not eat meat on Fridays for ex 2 meanings are interdependent the more people act in certain ways eventually becomes prescriptive More times people take their shoes off when entering home becomes we ought to take our shoes off when entering a home Repeated descriptive behavior becomes prescriptive What produces a norm and normative behavior 0 norms are produced because human beings are social constructivist society is a normative discussion prescriptive behavior regulates society constructivist humans create norms through social interactions because are communicative morally reflexive others view norms as the product of power and interest rationalist each individual decides for themselves how going to act based on own individual interest Individual interests will come into conflict resolution of these conflicts produces a norm either by negotiation or force Development of norm distribution of power rationalist people act upon rational selfinterest 2 are irresolvable social action determined by a norm universal when norms are breachedfound illegitimate conflicts Continuum of Social Norms of Behavior 0 definition of a norm quotnorm exists in a given social setting to the extent individuals usually act in a certain way and are often punished when seen not to be acting in this wayquot implies norms are generally clear generally followed and generally punishable If norm is less clearless respectedless punishable then norm is not as legitimate Continuum rituals gt prescriptive legal norms norms become more detailed more precise more binding but also more general ie apply to larger population as move right across continuum moves from how ought to act gt how must act rituals habits customs Ex mealtimes hygiene prescriptive rules of principled behavior Ex politeness tipping waiters good ex used to be that women weren39t supposed to get jobs supposed to get married Now at certain age people expected to have a job regardless of gender legal norms commands Ex criminal law Norms move through these cycles Rituals become prescriptive and can be enacted into law o What are the social functions of norms and more specifically law o rules enhance social order preventing disputes o rules function to pacfify social or political struggle provide ways for solving disputes when arise o norms express VALUES Compliance and Enforcement of Norms o Why do people obey norms rules law in our interest to comply with norms and laws rules and norms are somewhat interchangable depends on context Rules can be formal or informal Norms are obeyed because one will be penalized for violating a norm Origin of norms and their maintenance is problematic one of most controversial topics in social sciences o Why are some norms in place but not others o Do norms benefit all people in societv eduallv If they express values Dyadic and Triadic Dispute Resolution o norms in terms of conflict o norms and dispute resolution 3 levels the single actor existence of a norm can keep disputes from arising in the first place o Dyadic when dispute has emerged norms provide material to settle it between 2 individuals Norms must be or must be perceived as neutral in order to resolve the dispute Just between 2 parties Triadic what courts do 3 parties 2 disputing parties pull in another party to resolve the issue Norms about resolving o 2 main kinds of conflict resolution Dyadic Conflict Resolution process by which 2 parties resolve the conflict on their own sometimes solved as easily as with an apology sometimes a new norm is created to solve resolution Triadic Conflict Resolution process by which a dyadic dispute is resolved by a 3rd party o Triadic Conflict Resolution this class focuses on Formation of the Triad 2 disputants and an arbitratoradjudicator Zinacantan reading ritualized way of forming a triad that was not involved in formal legal system Why is triadic dispute resolution so widespread Consent of the disputants and neutrality of the adjudicator critical Logic of Courts o What are Courts distinctions between Courts and other dispute resolvers The Judicial Paradigm judge settles disputes brought by at least 1 party parties argue their case according to fixed procedures judge resolves dispute by applying a legal norm functioning of a court resolve disputes neutral party social control court is representing society upholding laws of state courts as policymakers when judges make decisions they often make law o social logic Early Roman example and consent when 2 parties disputing would decide what normslaws to follow and would choose the 3rd party together Mutual consent inherent to system not how courts today works but still mechanisms that harken back to notion of mutual consent o courts legitimacy and the social logic substitution of law and office for mutual consent courts in a very tenuous position of upholding legitimacy what if people no longer believe in general office and law Courts still trying to maintain the concept of mutual consent when its really not there in most raw form can39t choose your judge o understanding the varying court roles courts as dispute resolvers go between gt mediator gt arbitrator gt judge mediating continuum Consentnondichotomous decisions no consentdichotomous decisions less consent as move to the right along continuum dichotomous one person wins one person loses go between pure consent carrying of messages compromise mediator open participation between parties formal or informal Can tell person to leave arbitrator less consent by parties may be in a contract forced to bring in this person if have conflict judge Courts and social control can undermine social legitimacy impose a 3rd interest of the state courts as policymakers can further undermine legitimacy through interpretations they can expand the meaning of law rulings can be general affect large population and prospective affects the future study guide for midterm will be posted a week in advance midterm Oct 29 o The Politics of Judicial Review o review powers critical for courts functions Need review to have politics in court o Traditional European Model of Review Judicial Review none for ordinary judges just applying pre existing law not questioning legislation Separation of Powers judicial inferiority to the legislature Hierarchy of norms statuecode law at the top democratic giving power to the legislature those who people voted in 1920s in Euro what happens when the legislature doesn39t protect the people39s rights New Constitutionalism came out of this o New Constiutionalism Origins Hans Kelsen 1920s Austria modified legal system to the traditional model considered that may be problematic to leave all power to legislature to protect rights didn39t convince Europeans initially Basic Elements written Constitution with rights clearly defined rights Constitution gives power to people Legislative Authority and Constitution legislative authority is only lawful if in line with Constitution rights system Constitutional Court o new type of institution different idea make sure first 3 elements upheld o Euro didn39t want anything to do with judicial review watching American Supreme Court run wild Constitutional Court not the top of the judiciary separate structure outside of judiciary and legislature WWII happened government not accountable to people massive atrocities needed massive reform Kelsenian model comes back have some kind of check on legislature make sure Constitution followed became most used type of legal system not American type of system EXCEPT Kelsen didn39t want human rights enumerated in Constitution which Europe definitely did after WWII Constitutional courts have evolved in unexpected ways ways Kelsen didn39t intend