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Chapter 1
Administrative law: A body of law created by administrative agencies in the form of regulations, orders, and decisions.
Case law: Law that is enacted by judges in cases that are decided in the appellate courts.
Civil law: A form of private law that consists of a body of rules and procedures intended to govern the conduct of individuals in their relationships with others.
Code: A body of law (statutes) enacted by national parliaments that arrange entire fields of law in an orderly, comprehensive, cumulative and logical way. Codes are based on the Romano-Germanic system.
Compensatory style of social control: According to legal theorist Donald Black, in this form of social control a person who has broken the law is considered to have a contractual obligation and, therefore, owes the victim restitution (for example, a debtor failing to pay a creditor).
Conciliatory style of social control: In this form of social control deviant behaviour represents one side of a social conflict in need of resolution, without consideration as to who is right or who is wrong (for example, marital disputes).
Conflict perspective: A sociological perspective which views conflict as the needless struggle among individuals and groups who have not yet attained sufficient understanding of their common interests and basic interdependence.
Consensus perspective: This sociological perspective describes society as a functionally integrated, relatively stable system held together by a basic consensus of values. Social order is considered as more or less permanent, and individuals can best achieve their interests through cooperation.
Customs and Conventions: Weber contends that customs and convention can be distinguished from law. Customs are rules of conduct in defined situations that are of relatively long duration and are generally observed without deliberation and “without thinking.” Conventions are rules for conduct that involve a sense of duty and obligation.
Criminal law: Wrongs against the state, the community, and the public or “the people.” A crime is a “public,” as opposed to an “individual” or “private,” wrong.
Dialectical perspective: Sociologists who claim to be dialectical and critical in their orientation do not seek merely to describe and explain social events. They, as scientists, also assert their right to criticize.
Penal style of social control: According to Black, in this form of social control the deviant is viewed as a violator of a prohibition and an offender, who is to be subjected to condemnation and punishment (for example, a drug pusher).
Praxis: the wedding of theory and action.
Private law: This form of law is concerned with both substantive and procedural rules governing relationships between individuals.
Public law: This form of law is concerned with the structure of government, the duties and powers of officials, and the relationship between the individual and the state. “It includes such subjects as constitutional law, administrative law, regulation of public utilities, criminal law and procedure, and law relating to the proprietary powers of the state and its political subdivisions” (Davis).
Royal prerogative or prerogative powers: The residue of discretionary authority which is legally left in the hands of the Crown.
Shari’a: Islamic religion states what Muslims must believe, and includes the Shari’a (“the way to follow”), which specifies the rules for believers based on divine command and revelation.
Sociological jurisprudence: The study of law and legal philosophy, and the use of its ideas in law to regulate conduct
Statutory law: Legislation passed by elected officials in legislative assemblies.
Substantive laws: The rights, duties, and prohibitions administered by courts—which behaviours are to be allowed and which are prohibited (such as prohibitions against murder or the sale of narcotics).
Therapeutic style of social control: According to Black, in this form of social control the deviant’s conduct is defined as abnormal; the person needs help, such as treatment by a psychiatrist.
Torts: Laws pertaining to private wrongs of parties against each other rather than against the state or the public. The injured individual may seek redress in the courts for the harm he or she experienced. In most cases, some form of payment is required from the offender to compensate for the injury he or she has caused.
Chapter 2
Consciousness-raising: An opportunity to test the validity of legal principles through the personal experiences of those who have been affected by those principles.
Culture: According to Black, this can be measured by the volume, complexity, and diversity of ideas, and by the degree of conformity to the mainstream of culture.
Direct influences: Constituent pressures that offer rewards or sanctions to lawmakers. Rewards for compliance and sanctions for noncompliance may be votes in an election or re-election campaign or financial contributions, for example.
Economic determinism: The Marxian idea that economic organization, especially the ownership of property, determines the organization of the rest of society.
Empirical justice: The deciding of cases by referring to analogies and by relying on and interpreting precedents.
Functionalism: Functionalist analysis examines social phenomena with respect to their consequences for the broader society. Manifest functions are those that are built into a social system by design. Latent functions are, by contrast, unintentional, unanticipated consequences of a system that has been set up to achieve other ends.
Group influence: The influence of organized interest groups representing a special constituency. Political parties, interest groups, and citizen action groups are continually influencing the lawmaking process.
Impetus: a fundamental prerequisite for setting the mechanism of lawmaking in motion.
Indeterminacy: The law’s inability to cover all situations (Trubek).
Indirect influence: The form of influence that which impacts the lawmaking process indirectly. Here a lawmaker acts in the capacity of an "instructed delegate." Decisions made are on behalf of the desires of a particular constituency; for example, residents living around an airport who oppose expansion of facilities.
Intersectionalism: A term used in Critical Legal Studies to “capture some of the unique dimensions and circumstances of being both a woman and a person of colour” (Friedrichs).
Kahdi justice: The justice that is dispensed by the judge of the Islamic Shari’a court. (See Chapter 1).
Legal positivism: Historical and evolutionary interpretations of law that consider the legal and the moral to constitute two quite separate realms (as opposed to natural law).
Mechanical solidarity: According to Durkheim, this form of solidarity prevails in relatively simple and homogeneous societies where unity is ensured by close interpersonal ties and similarity of habits, ideas, and attitudes.
Morphology: Those aspects of social life that can be measured by social differentiation or the degree of interdependence (for example, the extent of division of labour).
Organic solidarity: According to Durkheim, this form of solidarity is characteristic of modern societies that are heterogeneous and differentiated by a complex division of labour.
Organization: According to Black, organization can be measured by the degree to which the administration of collective action in political and economic spheres is centralized.
Procedural laws: Rules regarding how substantive law is to be administered, enforced, changed, and used in the mediation of disputes.
Rational justice: Weber argues that rational justice is based on bureaucratic principles. Rationality can be further based on adherence to “eternal characteristics” (observable, concrete features) of the facts of the case.
Repressive and penal law: In a homogeneous, undifferentiated society, a criminal act offends the collective conscience (i.e., the “totality of social likenesses” as Durkheim wrote) and punishment is meant to protect and preserve social solidarity.
Restitutive law: In modern heterogeneous societies, repressive law tends to give way to restitutive law, where restitution (sometimes called “damages”) is awarded based on a lawbreaker’s wrongs committed.
Social control: Social control is the nonlegal control to which people are subjected is a measure of their respectability, and differences between people indicate normative distance from each other.
Stratification: Inequality of wealth.
Substantive laws: These laws consist of rights, duties, and prohibitions concerning what is right, wrong, permissible, and impermissible.
The woman question: An overarching question designed to probe into the gender implications of a social practice or rule (see, for example, Lamarche). Asking the “woman question” compensates for law’s failure to take into account experiences and values that are more typical of women than of men.
Chapter 3
Accident Defence: This is a legitimate defence when, for example, a driver swerves to avoid hitting a small dog that has wandered out onto the road and subsequently drives over a freshly planted garden. The driver cannot be held liable for negligent operation of the motor vehicle, because the presence of the dog on the road was not foreseeable, and hence the destruction of the garden was truly an accident (Fridman, 2002).
Adjudication: When a judge renders the official judgment of the trial court in a civil or a criminal case as to the defendant's guilt or innocence, the process is called adjudication.
Crime: A crime is a public wrong, an offence that has been committed against the public.
Defense of consent: The “consent” defense is based on the argument that the wronged or injured party consented to be part of an activity or practice that they knew could result in an injury.
Defence of property: This defence is based on the idea that the owner of a property is allowed to take reasonable measures (fences, barbed wire) to deter others from entering the property without permission (Osborne, 2003).
Defence of legal authority: The “legal authority” defense is most often based on a series of statutes found in the Canadian Criminal Code that pertain to the rights of police officers and other law enforcement officials to detain persons, make arrests or use force against a person.
Dispute: A dispute is a conflict of claims or rights—an assertion of right, claim, or demand on one side, met by contrary claims on the other. When courts hear disputes, they attempt to decide (adjudicate) between or among those who have some disagreement, misunderstanding, or competing claims.
Drug Treatment Court (DTCs): A program that was first introduced into this country in 1998. DTCs attempt to address the needs of non-violent individuals who are charged with criminal offences that are motivated by their addictions.
General deterrence: The goal of state-administered punishment to deter members of the general public from committing offences by “making an example”.
Generic prejudice: Beliefs about certain groups of people or certain types of crime (e.g., judging a person as guilty or innocent based on his or her race, sex or sexual orientation rather than on the facts of the case).
Intentional torts: Actions taken by an individual or organization that are deliberately meant to cause harm.
Interest prejudice: Biases that jurors may hold due to a direct interest in the case (e.g., a relationship to the accused or a witness).
Legalistic style of policing: As opposed to the watchman style, agencies characterized by this style tend to treat all situations, even commonplace problems of maintaining order, as if they were serious infractions of the law. Members of such agencies issue a high rate of traffic tickets and arrest a high proportion of young offenders.
Market deterrence: Tort law can serve to reduce accidental injuries through market deterrence. By making activities that are accident prone more expensive, tort law serves to deter individuals from engaging in these activities, decreasing the likelihood of injuries.
Negligence: Actions that cause an unintentional harm because a person or organization has failed to take reasonable precautions to ensure that their actions do not endanger others.
Normative prejudice: Biases that occur when a juror perceives that there is such strong community interest in a particular outcome of a trial that he or she is influenced in reaching a verdict that is consistent with community sentiment rather than one based on an impartial evaluation of the trial evidence" (Vidmar and Schuller).
Specific deterrence: The goal of state administered punishment is to deter the specific offender from committing further crimes (specific deterrence).
Specific prejudice: Attitudes or beliefs about the particular case that may affect one's ability to decide the case in a way that is fair.
Shadow jury: Simulated or "shadow" juries are used to gain feedback for lawyers on how to try their cases. Most of these mock trials are conducted by jury consulting or market research firms.
Service style of policing: This style combines law enforcement and maintenance of order. An emphasis is placed on community relations, the police on patrol work out of specialized units, and command is decentralized.
Watchman style of policing: This style emphasizes the responsibility for maintaining public order, as contrasted with traditional law enforcement. The police officer in such an agency is viewed as a peace officer, ignoring or handling informally many violations of the law and paying much greater attention to local variations in maintaining order.
Chapter 4
Administrative adjudication: The process by which an administrative agency issues an order. Adjudication is the administrative equivalent of a judicial trial.
Conflict perspective: This theory cites value diversity, unequal access to economic goods and the resulting structural cleavages of a society as the basic determinant of laws. Specifically, the origin of law is traced to the emergence of an elite class.
Functionalistic model: This view of lawmaking, as formulated by Paul Bohannan (1973), argues that lawmaking is the restatement of some customs (for example, those dealing with economic transactions and contractual relations, property rights in marriage, or deviant behaviour) so that they can be enforced by legal institutions.
The “golden rule”: This premise of statutes specifies that in cases where the literal interpretation of a statute would lead to a "logical absurdity, an inconsistency or a repugnancy," the court can move from the literal interpretation-but "only so far as is necessary to remove the conflicting construction".
Interest group thesis: This idea contends that laws are created because of the special interests of certain groups in the population (Mahood). The image of society reflected by this view stresses cultural differences, value clashes, inequities and social conflict (Hajnal and Clark).
The “literal rule” (sometimes called the "plain meaning rule"): This rule of statutes sets out that the statute should be applied literally, regardless of whether or not the judge approves or disapproves of its result.
The mischief rule: This rule of statutes addresses ambiguous legislation. It addresses the problem the statute was created to solve or "what mischief ... the statute [was] designed to suppressed, or what remedy is being advanced by it" (Yates et al.).
Moral entrepreneur theory: This theory attributes the precipitation of key events to the presence of an enterprising individual or group.
Rationalistic model: A theory of the sociology of law that proposes that laws (in particular, criminal laws) are created as rational means of protecting the members of society from social harm. In this perspective, crimes are considered socially injurious.
Chapter 5
Corporate crime: Corporate crime is distinguished from ordinary crime in two respects: the nature of the violation and the fact that administrative and civil law are more likely to be used as punishment than criminal law.
Crimes mala prohibita: Behaviours made criminal by statute, but there is no consensus as to whether these acts are criminal of themselves.
Deterrence: Individual or specific crime deterrence may be achieved by intimidation of the person, frightening him or her against further deviance, or it may be affected through reformation, in that the lawbreaker changes his or her deviant behaviour. General deterrence results from the warning offered to potential criminals by the example of punishment directed at a specific wrongdoer.
Folkways: Established norms of common practices such as those that specify modes of dress, etiquette, and language use.
Incapacitation: A frequent element of juridicial punishment that involves, for example, a prison term, which prevents a violator from misbehaving during the time he or she is being punished.
Legalization: The process by which norms are moved from the social to the legal level. Not all social norms become laws; in fact, only certain norms are translated into legal norms.
Mores: Societal norms associated with intense feelings of right or wrong and definite rules of conduct that are simply not to be violated.
Retribution: Social retaliation against an offender. This means punishment of the offender for the crime that has been committed and, to an extent, punishment that (in principle) matches the impact of the crime upon its victim (for instance, a person or an organization).
Chapter 6
Adjudication: A public and formal method of conflict resolution, best exemplified by courts (Fiss and Resnick). Courts have the authority to intervene in disputes whether or not the parties desire it and to render a decision and to enforce compliance with that decision. In adjudication, the emphasis is on the legal rights and duties of disputants, rather than on compromises or on the mutual satisfaction of the parties.
Arbitration: Unlike mediation, in which a third party assists the disputants to reach their own solution, arbitration requires a final and binding decision to be made for the disputants by a third party. Disputants agree beforehand both to the intervention of a neutral third party and to the finality of the third party’s decision.
Avoidance: This method of dispute resolution refers to limiting the relationship with other disputants sufficiently so that the dispute no longer remains salient (Felstiner). Hirschman calls this kind of behaviour “exit,” which entails withdrawing from a situation or terminating or curtailing a relationship.
Challenge for cause: In the jury selection process, a challenge for cause can be made on the grounds that, for example, a prospective juror fails to meet the requirements of the provincial statute that governs juries (e.g., the person's occupation places him/her within an exempted category).
Contingency fees: When a lawyer agrees to be paid for his or her services only if he or she wins an award or settlement in the case, any money the lawyer gets is called a contingency fee.
Doctrine of paramountcy: The doctrine that when laws conflict, the national laws hold sway.
Domestic Violence Courts: Courts which specifically address domestic violence cases, and are designed to decrease court processing time; increase conviction rates; provide a focal point for victim services; and enable specialization within law enforcement and investigation. (Department of Justice, 2005).
Feuding: A state of recurring hostilities between families or groups, instigated by a desire to avenge an offence (insult, injury, death, or deprivation of some sort) against a member of the group.
Garnishment: A court order directing someone who owes or possesses money due to the debtor (such as an employer) to pay all or some of that money to the court, which then turns it over to the creditor.
Grade inflation: The assignment of higher grades than the work warrants.
Justiciability: This term is used to indicate that a conflict is viable to trial and courts. The court must be mandated to provide a remedy. In Canada, most disputes are justiciable in one court or another, although the jurisdiction of particular courts varies.
Lien: A lien establishes a creditor’s claim on property (such as a house or a car).
Litigation explosion: Walter Olson’s controversial book by the same title contends that there is a “revolution” in civil litigation which he views as a “civil war in very, very slow motion.” But is there really such an “explosion,” or is it a myth? It depends on whom one asks.
Lumping it: This method of dispute resolution refers simply to inaction, to not making a claim or a complaint. Galanter says: “This is done all the time by ‘claimants’ who lack information or access or who knowingly decide gain is too low, cost too high (including psychic cost of litigating where such activity is repugnant).”
Mediation: A dispute resolution method that interposes a disinterested and non-coercive third party, the mediator, between the disputants.
Med-arb: A hybrid method of dispute resolution in which the issues that were not solved by mediation are submitted to arbitration, with the same person serving first as mediator, then as arbitrator.
Mini-trial: A hybrid dispute-resolution method in which lawyers for each disputant are given a short time (not more than a day) in which to present the basic elements of their case to senior executives of both parties. After the presentation, the senior executives try to negotiate a settlement of the case, usually with the aid of a neutral adviser. If there is no settlement, the adviser gives the parties his or her opinion of the likely outcome if the dispute were litigated.
Negotiations: Negotiations take place when disputants seek to resolve their disagreements without the help of neutral third parties.
Ombudsman process: Related to mediation, it combines mediatory and investigatory functions in dispute resolution. In a traditional sense, ombudsmen are independent agents of the legislature and they can criticize, publicize and make recommendations, but they cannot reverse administrative actions.
One-juror verdict theory: A significant number of lawyers look for a "key juror" who will be sympathetic to their case and able to influence the decision of the entire group of jurors. Adopting the premise that, "In general, an individual's status and power within the jury group will mirror his [sic] status and power in the external world" (Keeton).
One-shotter: A type of litigant who use the courts only occasionally. Illustrations of one-shotters include an author suing his or her publisher for breach of contract, and a professor filing charges against a university for sexual or racial discrimination in promotion (Galanter).
Phases in the dispute process: Nader and Todd contend that there are three distinct phases or stages in the disputing process: the grievance or preconflict stage, the conflict stage, and the dispute stage. The grievance or preconflict stage refers to situations that an individual or a group perceives to be unjust and considers grounds for resentment or complaint. If it is not resolved, it enters into the conflict stage, in which the aggrieved party confronts the offending party and communicates his or her resentment or feelings of injustice to the person or group. The conflict phase is dyadic; that is, it involves only two parties. If it is not de-escalated or resolved at this stage, it enters into the final, dispute stage when the conflict is made public. The dispute stage is characterized by the involvement of a third party in the disagreement.
Plea bargaining: A form of negotiation that can be traced back to the earliest days of common law. The term "plea bargain" has been defined by the Law Reform Commission of Canada as "an agreement by the accused to plead guilty in return for the prosecutor's agreeing to take or refrain from taking a particular course of action" (Verdun-Jones and Tijerino).
Private dispute: This kind of dispute before the courts is characterized by the absence of any initial participation by public authorities. For example, when a husband and wife quarrel, when two businesspersons debate the terms of a contract, or when two automobiles collide, these events are likely to give rise to private disputes (Goldman and Sarat).
Public defendant dispute: In this type of dispute, the government participates as a defendant. Such disputes involve challenges to the authority of some government agency or questions about the propriety of some government action that may be initiated by an individual or by an organization (Goldman and Sarat).
Public-initiated dispute: This type of dispute occurs when the government seeks to enforce norms of conduct or to punish individuals who breach such norms. These kinds of public disputes emerge when society attempts to control and channel social behaviour through the promulgation of binding legal norms (Goldman and Sarat).
Public-interest law: This the term is frequently used to describe the activities of law firms that represent environmentalists and consumer and like groups, as well as test-case litigation in civil rights and poverty controversies. It is generally oriented toward causes and interests of groups, classes, or organizations, rather than individuals.
Regulatory disputes: These disputes frequently involve difficult technical questions, whereas social-policy disputes raise difficult political and value questions.
Repeat players: Litigants who engage in many similar litigations over a period of time. Whereas one-shotters are usually individuals, repeat players are organizations, such as finance companies, moving companies, or insurance companies.
Rights-based mediation: Sometimes referred to as “early neutral evaluation” or “evaluative mediation,” it involves a mediator’s evaluation of the case in the context of formal rules (e.g., the law or accepted principles of accounting).
Scientific jury selection: This method consists of three steps. First, a random sample is drawn from the population, and the demographic profile of this sample is compared with that of the prospective jurors. If the jurors were randomly selected, the profile should match. If there is substantial over- or under-representation of particular characteristics (ethnic groups, age, occupation, and so forth), the jury pool can be challenged. Second, after it is established that the prospective jurors represent the population at large, a random sample is drawn from the jury pool to determine the demographic, personal, and attitudinal characteristics considered to be favourable to one's own side. Third, after establishing the psychological and demographic profile of a "favourable" juror, the social scientist can make recommendations for selection of individual jurors (Loh).
Sentencing circles: In circle sentencing, the court typically invites interested members of the community to join the judge, prosecutor, defence counsel, police, social service providers, community elders, along with the offender, the victim and their families and supporters to meet and, within a circle, discuss the crime, factors that may have impacted upon its commission, sentencing options and strategies through which the offender may be reintegrated into the community. In Canada, sentencing circles seldom hear cases which carry a minimum punishment of over two years imprisonment.
Shaming: In some societies, shaming is used as a form of public reprimand in the disapproval of disputing behaviour. Ridicule directed at those guilty of antisocial conduct is also used to reduce conflict. In reintegrating shaming, disapproval is expressed toward the rule-violating act but the essential value of the offender, him or herself, is reaffirmed along with the prospect of reacceptance.
Social-policy disputes: These disputes develop when the government pursues broad national objectives that may involve or impinge upon many interests and groups, such as equality and economic opportunity, environmental protection, income security, and public health and safety. (Mink and Solinger).
Voir dire: A trial within a trial to decide upon the admissibility of evidence.
Writ of seizure and sale: This order results in a forced sale involving the seizure and sale at an auction of the debtor’s property. The proceeds then are turned over to the creditor to satisfy the judgment.
Youth courts: Courts which specifically address cases in which a young person, aged 12 to 17, is charged with an offence under federal youth justice laws.
Chapter 7
Charismatic authority: According to Max Weber, charismatic authority bases its claim to legitimacy on devotion to the specific and unusual sanctity, heroism, or exemplary character of an individual and the normative patterns that are revealed or ordained. Illustrations of individuals with charismatic authority include Moses, Christ, Mohammed, and Gandhi.
Civil liberties: Fundamental freedoms such as freedom of religion, expression, assembly and association.
Human rights: Encompassing more than the idea of civil liberties, human rights also include such rights as the right to education, accommodation, and employment.
Rational-legal authority: According to Weber, rational-legal authority bases its claims to legitimacy on a belief in the legality of normative rules and in the right of those elevated to authority to issue commands under such rules. In such authority, obedience is owed to a legally established impersonal order.
Sanctions: Related to legal efficacy, sanctions are provided to guarantee the observance and execution of legal mandates, to enforce behaviour. Among the means of coercive law enforcement are punishment by fine or imprisonment and the imposition of damage awards.
Segregation: The separation of groups in residence, workplace and social functions.
Traditional authority: Max Weber defines traditional authority as that which bases its claims to legitimacy on an established belief in the sanctity of traditions and the legitimacy of the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order but, rather, a matter of personal loyalty. The "rule of elders" is illustrative of traditional authority.
Chapter 8
Punitive damages: An extra amount over and above the victim’s proven losses in a civil case, intended to punish defendants where their conduct has been outrageous, grossly negligent and close to criminal.
Chapter 9
Before-and-after research: The study of a group of individuals both before and after exposure to a particular program.
Experiment: Experiments are the prevailing method for testing causal relations by social scientists, especially psychologists, is the experiment. An experiment may be carried out in a laboratory or a field setting, and it ideally begins with two or more equivalent groups, with an experimental variable introduced into only the experimental group. The researcher measures the phenomenon under study before the introduction of the experimental variable and after, thus getting a measure of the change presumably caused by the variable.
Historical research: This research, carried out by sociologists, involves the critical investigation of events, developments, and experiences of the past; a careful weighing of evidence of the validity of sources of information on the past; and the interpretation of the evidence.
Life-histories method: A research technique which requires that the researcher rely solely on a person’s reporting of life experiences relevant to the research interest with minimal commentary. Often life histories are part of ethnographic reports. In such instances, they are referred to as “memory cases” (Nader and Todd).
Observation: This research method, especially participant observation, seems to be the best data collection method for studying a sequence of events and their meaning as interpreted by the participants and other observers before, during, and after the events. In participant observation, the researcher directly observes and participates in the study system with which he or she has established a meaningful and durable relationship.
Observational methods: Observational methods can be divided into two types: those utilizing either human observers (participant observers or judges) or mechanical observers (cameras, tape recorders, and the like) and those directly eliciting responses from subjects by questioning (questionnaires, schedules, and interview guides). Observational methods can be carried out both in laboratory or controlled situations and in field or natural settings.
One-shot study research: The study of a group of individuals from the target population after it has been exposed to a program developed to cause change.
Social policy: Purposive legal measures that are adopted and pursued by representatives of government who are responsible for dealing with particular social conditions in society.
Survey research: This form of research aims for a systematic and comprehensive collection of information through the collection of data vis a vis methods such as face-to-face interviews, self-administered questionnaires (for example, mail questionnaires), and telephone interviews.
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