Law, Justice, and Law, Justice, and Society: Society: A Sociolegal A Sociolegal Introduction Introduction Chapter 1 Law: Its Function and Purpose
May 11, 2015
Law, Justice, and Society:Law, Justice, and Society:A Sociolegal IntroductionA Sociolegal Introduction
Chapter 1
Law: Its Function and Purpose
Law: Its Function and PurposeLaw: Its Function and Purpose
In the making of the human world, nothing has been more important than what we call law. Law is the intermediary between human power and human ideas. Law transforms our national power into social power, transforms our self-interest into
social interest, and transforms social interest into self-interest.
Allott (2001:19)
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• written body of general rules of conduct• applicable to all members of community,
society, or culture• emanates from a governing authority• reinforced by its agents by imposition of
penalties for violations• binds people of a common culture
What Is Law?
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Culture is the totality of learned socially transmitted behaviors, ideas, values, customs, artifacts, and technology of groups of people
Six elements are beliefs, values, norms, symbols, technology, and language
What are these elements, and how do they relate to law?
Six Elements of Culture
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Folkways/ mores/norms
LAW
Values and beliefs
Discouraged behavior
Encouraged behavior
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• ideas about how the world operates• what is true and what is false• can be about tangible phenomena (empirical
knowledge)• can be about intangible phenomena (religion,
philosophy)
Beliefs
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• laws are enacted to support deeply held beliefs• as beliefs change, so do the laws that support them
– prescientific astronomy
– slavery
Beliefs (cont.)
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• normative standards about what is good and bad, correct and incorrect, moral and immoral, normal and deviant
• more general and abstract than beliefs• American values are transplanted and modified
western European values
Values
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• can be either general or more specific• examples of general, “core” values:
– the Golden Rule, justice, equality, liberty, and the sanctity of life
• examples of more-specific values:– achievement and success, individualism,
progress, self-reliance, and hard work
Values (cont.)
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• a norm is the action component of a value or a belief
• it patterns social behavior in ways consistent with those values and beliefs
Norms
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• mores– norms with serious moral connotations
– become codified into law
• folkways– Less-serious norms
– habits that many conform to automatically
Norms (cont.)
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• laws always reflect core values and mores of culture
• Western core values are generally from Judeo-Christian heritage
• law is a social tool by which norms are passed on between generations
Norms and the Law
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Positive law: Laws that arise from the norms and customs of a given culture
Natural law: Hypothesized universal set of moral standards – legal realism: 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
Norms and the Law (cont.)
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• concrete physical signs that signify abstractions • can be specific
– little man or woman on a restroom door• or can be suffused with broad, emotional meaning
– a flag
Symbols
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• symbolism surrounding the law helps those who observe it feel its majesty
• symbolism helps legitimize and sustain the law• examples:
– imposing courtroom– robed and bewigged judges– elevated stages– old-fashioned terminology
Symbols and the Law
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• the totality of the knowledge and techniques a people employ to create the material objects of their sustenance and comfort
• technology employed by a culture creates different physical, social, and psychological environments
Technology
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1. Supplies technical inventions and refinements that change ways criminal investigations are made and the law is applied
2. Advances in the media may change the intellectual climate in which the legal process is executed
3. Presents the law with new conditions with which it must wrestle
Three Ways Technology Affects Law (Vago, 1991)
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• a vast repository of information about culture: the storehouse of culture
• provides the ability to formulate, articulate, and understand rules of conduct, i.e., the law
• written language allows everyone to be warned in advance of what is forbidden and what is not
Language
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Legal Philosophers and Scholars• Hammurabi• Plato• Aristotle• St. Thomas Aquinas• Thomas Hobbes
• John Locke
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• king of Babylonia (2123-2081 BCE)• set of judgments originally pronounced to solve
particular cases• administration of law in the hands of the
priesthood• scribes kept records of decided cases• elders acted as official witnesses at trial • any citizen could appeal decision directly to king
Code of Hammurabi
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• governed sexual behaviors, property rights, and acts of violence
• introduced the concept of lex talionis• used third parties to settle disputes• demanded humane treatment of those accused of
wrongdoing
Code of Hammurabi (cont.)
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• theory of forms– forms are immaterial essences independent of our
knowledge about them; they are the ultimate realities of existence
– we can perceive them only imperfectly– law is one of these forms– lawmakers must gain an understanding of the form of
law to create the best resemblance of it
Plato (427-347 BCE)
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• law is necessary to regulate self-interest
When men have done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither,
hence there arise laws and mutual covenants; and that which is ordained by law is termed by them
lawful and just (Plato, 1952:311).
Plato (427-347 BCE) (cont.)
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• the state is virtuous• only through the state can citizenry behavior be
regulated• favored “philosopher king”
Plato (427-347 BCE) (cont.)
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• state exists so that people can not only live together but also live well
• favored egalitarian system where rulers are subservient to the law
• legislatures must provide for the greatest happiness of the greatest number of citizens
Aristotle (384-322 BCE)
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• equates law with justice• the goal of law is to ensure that persons receive what they
justly deserve by their actions
Since the lawless man was seen to be unjust and the lawful man just, evidently all lawful acts are in a
sense just acts; for the acts laid down by the legislative art are lawful, and each of these we say is
just (Aristotle, 1952:377).
Aristotle (384-322 BCE) (cont.)
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• personal relations are governed by utilitarian principle of the common good
• primary objective of the law is to bind one to act to achieve the common good for all society
• distinguished between natural and positivist law and related natural law to the divine
• coercion must exist as a tool to achieve the common good
St. Thomas Aquinas (1225-1274)
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Law is the rule and measure of acts, whereby man is induced to act or is
restrained from acting; for lex (law) is derived from ligare (to bind) because it binds one to act (Aquinas, 1952:205).
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• humans are vicious and concerned only with their own interests
• prior to civilized communities, life was a “war of all against all” and was “nasty, brutish, and short”
• due to this state, humans created a social contract with one another
Thomas Hobbes (1588-1679, Leviathan)
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• preferred a strong sovereign capable of enforcing the social contract
• disavowed any notion of natural law• the ultimate end of government is security; the end
justifies the means When a Commonwealth is once settled, then are there actually
laws, and not before; as being then the commands of the Commonwealth; and therefore also civil laws; for it is the
sovereign power that obliges men to obey (Hobbes, 1952:131).
Thomas Hobbes (1588-1679, Leviathan) (cont.)
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• held a more optimistic view of human nature than Hobbes
• credited with providing the justification for– England’s Glorious Revolution of 1688
– American Revolution of 1776
– French Revolution of 1789 (Lavine, 1989)
John Locke (1632-1704, Second Treatise on Government)
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• individuals are born as “blank slates”• pre-civilized society was inferior to an organized
political state only because it lacked law• it was governed by natural laws based on moral
obligations • this society was harmonious• why would such a society move to a political
system with law to govern it?
John Locke (1632-1704, Second Treatise on Government) (cont.)
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Men being, as has been said, by nature all free, equal, and independent, no one can be put out of this estate and
subjected to the political power of another without his own consent. The only way whereby any one divests himself of his natural liberty and puts on the bonds of civil society is
by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable
living one amongst another, in a secure enjoyment of their properties and a greater security against any that are not of it. This any number of men may do, because it injures
not the freedom of the rest; they are left as they were in the liberty of the state of nature (Locke, 1952:54).
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• government exists to protect individual freedoms• if a government does not maintain its part of the
social contract, the governed can break it
John Locke (1632-1704, Second Treatise on Government) (cont.)
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Sociological Perspective of Law• Max Weber• Emile Durkheim
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• law is different from other rules in three ways:1. Regardless of whether persons want to obey the
law, they face external pressures and threats to do so
2. The external pressures and threats involve the use of coercion and force
3. These external pressures and threats are carried out by agents of the state
Max Weber (1864-1920, Economy and Society)
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• not concerned with natural law• focused on the rationalization of the world
– how world changed from feudal system to capitalism
Max Weber (1864-1920, Economy and Society) (cont.)
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• fourfold typology of legal decision making based on rationality, irrationality, and formal and substantive procedures
Max Weber (1864-1920, Economy and Society) (cont.)
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• least rational• based on case-by-case political, religious, or
emotional reactions • non-legally trained person acting without a set of
legal principles• example: King Solomon in the Bible
Weber’s Fourfold Typology of Legal Decision Making (cont.)
Substantive Irrationality
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• based on religious dogma, magic, oath-swearing, and trial by combat or ordeal
• formal rules, but they are not based on reason or logic
• example: settling cases in some Islamic countries
Weber’s Fourfold Typology of Legal Decision Making (cont.)
Formal Irrationality
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• guided by a set of internally consistent principles other than law
• decision making applied on a case-by-case basis using the logic of some religious, ideological, or bureaucratic sets of rules
• example: Code of Hammurabi
Weber’s Fourfold Typology of Legal Decision Making (cont.)
Substantive Rationality
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• most rational and ideal• combines high degree of independence of legal
institutions with a set of general rules • decision makers are monitored by others• example: Western legal systems
Weber’s Fourfold Typology of Legal Decision Making (cont.)
Formal Rationality
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• interested in the relationship between types of law and types of society
• all societies exist on the basis of a common moral order, as opposed to a rational social contract
• examined the effects of the division of labor on social solidarity– the degree to which people feel an emotional
sense of belonging to others and to a group
Emile Durkheim (1858-1917, Division of Labor in Society)
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• 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, resulting in a
collective conscience
Durkheim’s Two Types of Social Solidarity
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• organic solidarity– broad division of labor (result of industrial revolution
and factory system)– characterized by secondary relationships– goal-oriented interactions; results in weakened
collective conscious– grows out of diversity and a sense of social
interdependence
Durkheim’s Two Types of Social Solidarity (cont.)
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• more-complex societies and interactions that are at the secondary level and rely more on economic needs necessitate laws to regulate the different kinds of activities
• mechanical solidarity creates harsh penalties, or retributive or repressive justice
• organic solidarity creates tolerance among minor rule breakers and more humane punishments, called restitutive justice
Organic Solidarity and the Law
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Two Opposing Perspectives:
Conflict and Consensus
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• structured to maintain its stability• integrated network of institutions that functions to
maintain social order• stability is achieved through cooperation, shared
values, and cohesive solidarity• conflicts arise but only temporarily and can be
solved within the framework of shared values as exemplified by a neutral legal system
Consensus View of Society
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• characterized by conflict and dissension between groups with sharply different interests
• limited resources mean that conflict is inevitable• order is maintained purely by coercion
Conflict View of Society
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Ideal Types• these perspectives are merely ideals in order to
discuss social phenomena• all societies are characterized both by consensus
and by conflict• conflict is as necessary as consensus to maintain
the viability of a free society
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• all legal theorists so far discussed• law is a neutral framework for patching up
conflicts between groups who share fundamental values
• it is both just and necessary in order to control socially harmful behavior
• legal codes express compromises between various interest groups
The Consensus Perspective
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• if coercion is used, it is the individual’s fault, not a flaw in the law
• law is obeyed out of respect, not fear• law is willingly supported by all good people
The Consensus Perspective (cont.)
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• law functions to preserve the power of the most exploitive individuals
• Karl Marx – society is composed of two classes: the rulers and the
ruled
– conflicts always settled in favor of ruling class
– ruling class is defined as those who control the means of production
The Conflict Perspective
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• Karl Marx (cont.)– ruled accept such a social system and such laws
because of a false consciousness
– rulers can create this false consciousness because they control politics, religion, education, etc.
The Conflict Perspective (cont.)
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What Is Society Like Without Law?Liberty in the most literal sense is the negation of the
law for law is restraint, and in the absence of restraint is anarchy. On the other hand, anarchy by destroying restraint would leave liberty the
exclusive possession of the strong and unscrupulous . . . So that however it may be
mistaken, the end of the law is not to abolish or restrain, but to preserve and enlarge freedom
(Justice Cardozo in Day, 1968:29).