Law and Justice Chapter 1 power point

Law: Its Function and

PurposeChapter 1

What is Law?

• Written body of general rules of conduct• Applicable to all members of community,

society, or culture• Emanates from governing authority• Reinforced by its agents• Binds people of common culture

Six Primary Characteristics of Culture and Their Relationship to Law

• Culture• Totality of learned socially transmitted behaviors, ideas,

values, customs, artifacts, and technology of groups of people

• Six Elements• Beliefs• Values • Norms• Symbols• Technology• Language

Beliefs

• Ideas about how world operates• What is true and what is false• Can be about tangible phenomena

• Empirical knowledge

• Can be about intangible phenomena• Religion, philosophy

• Laws enacted to support deeply held beliefs• As beliefs change, so do laws that support them

Values

• Normative standards• More general and abstract than beliefs• American values transplanted and

modified• Either general or more specific

• General “core” values• More-specific values

Norms

• Action component of value or belief• Patterns social behavior in ways

consistent with those values and beliefs• Mores

• Norms with serious moral connotations

• Folkways• Less serious norms

Norms

• Laws always reflect core values and mores of culture

• Western core values generally from Judeo-Christian heritage

• Law is social tool by which norms are passed on between generations

• Legal scholars differentiate between two types of law

Norms

• Positive law• Laws arising from norms and customs of given culture

• Natural law• Hypothesized universal set of moral standards

• Legal positivism• All law is morally relative and must be judged

according to its cultural context

• Essential feature of law is its coerciveness, not its moral quality

Symbols

• Concrete physical signs that signify abstractions

• Can be specific• Can be suffused with broad, emotional

meaning• Symbolism surrounding law helps those

around feel its majesty• Help to legitimize and sustain the law

Technology

• Totality of knowledge and techniques a people employ to create material objects of sustenance and comfort

• Creates different psychical, social, and psychological environments

Three Ways Technology Affect Law (Vago, 1991)

1. Supplies technical inventions and refinements that change ways criminal investigations are made and law is applied

2. Advances in media may change intellectual climate in which legal process is executed

3. Present law with new conditions with which it must wrestle

Language

• Vast repository of information about culture• Storehouse of culture

• Provides ability to formulate, articulate, and understand rules of conduct

• Written language allows everyone to be warned in advance of what is forbidden and what is not

Legal Philosophers and Scholars

• Hammurabi• Plato• Aristotle• Thomas Hobbes• John Locke• John Rawls

The Code of Hammurabi

• King of Babylonia (2123–2081 BC)• Set of judgments originally pronounced to

solve particular cases• Administration of law in hands of priesthood• Scribes kept records of detailed cases• Elders acted as official witnesses at trial• Any citizen could appeal decision directly to

king

The Code of Hammurabi

• Governed sexual behaviors, property rights, theft, and acts of violence

• Introduced concept of lex talionis• Used third parties to settle disputes• Demanded humane treatment of those

accused of wrongdoing

Plato (427-347 BCE)

• Theory of forms• Defined

• We can perceive them only imperfectly• Law is one of these forms• Lawmakers must gain understanding of form of

law• Try to create best resemblance of it

• Human beings are imperfect copies of idea of humanness

Plato (427-347 BCE)

• Law is necessary to regulate self-interest

• State is superior to individual• Only through state can citizenry be

regulated• Without law, human nature would run

amok• Humans lack power to distinguish good

from evil

Aristotle (384-322 BCE)

• State exists so that people can not only live together, but also live well

• Favored an egalitarian system• Legislatures must provide for greatest

good for greatest number• Popularized later by Jeremy Bentham

• Equated law with justice• Goal of law

Thomas Hobbes (1588-1679)

• Humans are selfish and concerned only with their own interests

• Life prior to civilized society• “War of all against all”• “Nasty, brutish, and short”

• Due to this, humans create a social contract• Argued for strong sovereign to enforce

• Disavowed any notion of natural law• No laws exist without government

John Locke (1632-1704)

• Held more optimistic view of human nature• Pre-civilized society only inferior because it

lacked law• Individuals born as “blank slates”• State of nature governed by natural laws

• Based on moral obligations

• Believed in social contract • It should be there to provide individual freedoms

John Rawls (1921-2002)

• Law is comparable to scientific theory• Original position

• Hypothetical situation of pre-political times• Individuals were equal, rational, and self-

interested

• Strongly favored equality over meritocracy

• Envisioned arranged social institutions in just society

John Rawls (1921-2002)

• Believed equal opportunity had to be somewhat discriminatory• Preferred equality of outcome

• If given choice to rewrite societal social contract, individuals would do so under veil of ignorance• They would be “everyone”• They would want help for “everyone”

Sociological Perspectives of Law

• Law is one of six social institutions• All make rules involving conduct

• Only law enjoys enforcement power of state

• Two influential thinkers:• Max Weber• Emile Durkheim

Max Weber (1864-1920)

• Law different from other rules in three ways:1. Regardless of whether persons want to obey law, they

face external pressures and threats to do so2. External pressures and threats involve use of

coercion and force3. External pressures and treats carried out by agents

of state

• Not concerned with natural law• Focused on rationalization of world• Increase of predictability and progress in society

Weber’s Fourfold Typology of Legal Decision-Making• Interested in how authorities make decisions

when confronted with issues of contention• Fundamentals are

• Rationality• Irrationality

• Rational or irrational procedures may be either• Formal• Substantive

1. Substantive Irrationality

• Least rational• Based on case-by-case political,

religious, or emotional reactions• Non-legally trained person acting

without set of legal principles

• Example: King Solomon in the Bible

2. Formal Irrationality

• Based on religious dogma, magic, oath-swearing, and trial by combat or ordeal

• Formal rules followed, but are not based on reason or logic

• Example: Settling cases in some Islamic countries

3. Substantive Rationality

• Guided by set of internally consistent principles other than law

• Decision-making applied on case-by-case basis

• Use of logic of some religious, ideological, or bureaucratic sets of rules

• Example: Code of Hammurabi

4. Formal Rationality

• Most rational and ideal• Combines high degree of independence

of legal institutions with set of general rules

• Decision makers monitored by others

• Example: Western legal systems

Emile Durkheim (1858-1917)

• Interested in relationship between types of law and types of society

• All societies exist on basis of common moral order

• Examined effects of division of labor on social solidarity• Social solidarity defined• Two types

Mechanical Solidarity

• Relations based on primary group interactions

• Strong emotional bonds• Simple and limited division of labor• Strong behavioral norms• Solidarity grows out of sameness

• Results in collective conscience

Organic Solidarity

• Broad division of labor• Characterized by secondary relationships• Goal-oriented interactions

• Results in weakened collective conscience

• Grows out of diversity and sense of social interdependence

• Creates tolerance among minor rule breakers• Restitutive justice

Two Opposing Perspectives: Consensus Perspective

• View society as basically good, just, and more or less provides equal opportunity

• Structured to maintain stability• Society is integrated network of institutions

that function to maintain social order• Stability achieved through cooperation,

shared values, and cohesive solidarity• Conflicts arise, but only temporary


• Fits all legal theorists discussed thus far• Law is neutral framework

• Patches up conflicts between groups who share fundamental values

• Is both just and necessary to control socially harmful behavior

• Legal codes express compromises between various interest groups


• If coercion is used• Individual’s fault, not flaw in law

• Law is obeyed out of respect, not fear• Law is willingly supported by all good

people

Two Opposing Perspectives: Conflict Perspective

• View society as basically unjust, unequal, and discriminatory

• Characterized by conflict and dissention between groups with sharply different interests

• Limited resources• Conflict is inevitable

• Order maintained purely by coercion• Law functions to preserve power of most

exploitive individual

Two Opposing Perspectives: Conflict Perspective

• Karl Marx and Frederich Engels• Society best understood in terms of struggles and

conflicts between groups over scarce resources• Society composed of two classes

• Rulers and ruled

• Conflicts always settled in favor of ruling class• Defined as those who control means of production

• Ruled accept due to false consciousness• Rulers create false consciousness because they are in

control

Conflict Perspective: Critical Legal Studies (CLS)

• Emerging legal theory in late 1960s to early 1970s

• Challenge status quo and rejected much of positive and natural law

• Law is politics by other means• Legal rules are series of statuses that

legitimize exploitation• Done to detriment of workers

Ideal Types

• Perspectives merely ideals to discuss social phenomena

• All societies characterized both by consensus and by conflict

• Conflict necessary as consensus to maintain viability of free society• Conflict may form very foundation of later

consensus in pluralistic societies