MAJOR ISSUE: RELATION OF LAW

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MAJOR ISSUE RELATION OF LAW MORALITY

• Major Authorities
• Lon Fuller (Jurist)
• Oliver Wendell Holmes (Jurist)
• Robert Cooley Angel (Sociologist)

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Q WHAT IS LAW? MORALITY?

• Morality
• Basic Beliefs of a Society Re Appropriate
  Behavior
• Law
• The Official Rules of Society Which Are
  Enforced
• How Do Should They Relate to Each Other?

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OLIVER WENDELL HOLMES

• 2 Approaches to Law/Morality Connection
• POSITIVISM
• Law Is an Entity in Itself
• NATURAL LAW
• Laws ARE SHOULD BE Based on a PRE-EXISTING
  Code of Morality

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NATURAL LAW

• Emphasizes Connection Between Law Morality
• Based on Pre-Existing Code of Morals
• EX 10 Commandments Koran etc.
• Is This True? How? What Circumstances?
• When Might It NOT Be True?

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POSITIVIST APPROACH TO LAW

• Law Viewed as Entity in Itself
• Apart from Morality
• Societies esp. Modern Societies Make Laws
• To Ensure Smooth Interpersonal Relations
• Among Persons Who May Not Agree on the Basic
  Moral Code
• Is This True? When? What Kinds of Cases?
• (Traffic Laws, Interstate Commerce, Sex, etc.)
• Max Webers View of Law in Modern Societies

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Q WHAT CONSEQUENCES FLOW FROM THIS CONTROVERSY?

• Does It Matter Which Approach We Take?
• What Happens If We Disagree Over the Basis?
• What Different Kinds of Laws Would We Have?
• EX Sex ? Drugs Alcohol ?
• EX Murder ? Stealing ?
• EX Suits Filed by ACLU, Amer. United for
  Separation of Church State ? Force Removal of
  Religious Symbols
• EX Southern Poverty Law Center re Hate Crimes

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LON FULLEREXPANDS LAW-MORALITY ISSUE

• Fuller Former Harvard Law Professor
• 2 Moralities on Which to Base Law
• Natural Law
• Humanitys Basest Nature

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FULLER MORALITY OF DUTY

• Law Based on "Humanity's Basest Nature"
• Assumption People Will Always Have Nasty
  Habits!
• Law Can't (Shouldnt) Do Much About That!
• Contrast Some Things People MUST Do (Or Avoid)
• Many Issues Individual Behavior Doesn't Matter
  for Society
• Law Should Only Force Whats Absolutely
  Necessary!
• Law Should NOT Try To Force People To Be Good!
• Fuller Terms "MORALITY OF DUTY Clearly Prefers!

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FULLER MORALITY OF ASPIRATION

• Based Upon Assumption That "Nature's God" Has Set
  Immutable Foundations of Morality
• Law Should Be Based on This Foundation.
• Tells Everyone What S/He Ought to Do
• Law Should Aim To Force Everyone to Do It!
• Fuller Calls It "MORALITY OF ASPIRATION" E.G.,
  Law Should Encourage (Force?) People to Aspire to
  Be The Best They Can Be

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SUMMARY Morality of Aspiration vs. Duty

• What Behaviors Would Be Banned Under Morality of
  Aspiration?
• Under Morality of Duty?
• Which Is Preferable?
• Which Would Be More Enforceable?
• Is Morality of Aspiration Possible In a Modern,
  Complex, Multicultural Society?
• Cf. Max Weber, Lon Fuller

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APPLYING THE MORALITY OF DUTYMORRIS HAWKINS
(c. 1970S)

• The Honest Politicians Guide to Crime Control
• They Basically Accept Fullers Notion of Morality
  of Duty (Though Do Not Quote Him)
• As the Basis for Law
• Book Outlines How to Implement this Idea in
  Modern U.S. Society

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MORRIS HAWKINS (ctd)

• Every Man Has An Inalienable Right To Go To Hell
  In His Own Fashion (p. 2)
• Therefore Remove Non-Essential Acts from
  Criminal Law All Victimless Crimes (7)
• Drunkenness (NOT Drunk Driving)
• Narcotics Drug Abuse Abortion
  
• Gambling Disorderly
  Conduct
• Sex Offenses Between Consenting Adults
• Juvenile Status Offenses
• Have a Standing Law Revision Committee
• Periodic Corrections to Delete Non-Essential Items

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MORRIS HAWKINS CONSEQUENCES

• Think About Consequences of Proposal
• Would It Be Accepted? By Whom?
• What Would People Disagree About?
• Who Would be Likely to Disagree?

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. DISAGREEMENT IN PRINCIPLE WITH POSITIVIST BASIS

• Some People Likely to Disagree with the
  Positivist Principle
• Have a Preference for a Natural Law Approach
• Particularly Among Religious Leaders
• Also Among Very Religious People

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DISAGREEMENT WITH SPECIFIC ISSUES AS "VICTIMLESS"

• Even People Who Agree In Principle That the
  Criminal Law Should Not Include Private Behavior
• Might NOT Agree With One Item or Another
• EX Abortion Not Victimless (Baby as Victim)
• Gambling And Drug Abuse Victimize Families
• Considerable Disagreement Over Which Items to
  Include in Law

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FEASIBILITY OF MORRIS HAWKINS

• How Likely Is It That Such a Program Would Be
  Accepted?
• THEY Recognize It Has Little Chance (1970s!)
• Politicians Could NOT Espouse It Unpopular
• Removal of Sanctions Support for Behavior
• Politicians LIKE the POWER Criminal Law Gives
  Them! (cf. Marx, Quinney, Chambliss!)

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SUM MORRIS HAWKINS 2 AREAS OF
DISAGREEMENTWITH THEIR VIEWS

• 1. DISAGREEMENT IN PRINCIPLE WITH POSITIVIST
  BASIS ? PREFERENCE FOR NATURAL LAW APPROACH
• 2. DISAGREEMENT WITH SPECIFIC ISSUES AS
  "VICTIMLESS"

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LON FULLER HOW TO MAKE BAD LAW

• The Experience of King Rex
• Tries to Make Good Law
• 8 Successive Mistakes
• Not Unlike Mistakes Made Today in U.S.!

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FULLER BAD LAW (1,2)

• 1. AD HOC LAW - Law Based On Decisions Day To
  Day, Case By Case. - No Guiding Principles On
  Which Law Is Based.
• 2. FAILURE TO PUBLICIZE - King Rex Then
  Established A Set Of Principles
• - Didn't Tell Anybody What They Were. - How
  Can An Unknown Law Guide Behavior?

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FULLER BAD LAW (3,4)

• 3. RETROACTIVITY - King Rex Getting Hang Of This
  
• - Tells People What Law Is AFTER Deviance
• - Then Explains How They Broke The Law.
• 4. NON-INTELLIGIBLE (OBSCURE) - Finally Sets Up
  Code Of Laws
• - And Publicizes It
• - But Nobody Can Understand It!

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FULLER BAD LAW (5,6)

• 5. CONTRADICTORY - People Finally Find Out What
  Law Means
• - Discover Many Rules Contradicted Each Other.
• 6. IMPOSSIBLE TO FULFILL - Sometimes Laws Were
  Impossible to Follow
• EX 1 Mile Stretch of Highway, St. Louis County,
  MO - Speed Limit Changed 5 Times - From 25 To
  40 To 30 To 65
• - No One Could Drive Without Breaking Law.

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FULLER BAD LAW (7,8)

• 7. EXTREMELY CHANGEABLE - King Rex Changed Law a
  Lot
• - People Couldn't Keep Up With New Codes.
• 8. INCONGRUITY OF LAW AND ADMINISTRATION -
  Didn't Always Use His Laws On Regular Basis
• - Sometimes He Enforced Them- Sometimes He
  Didnt
• EX Irritating Problems in Many Communities
• - Law Used When Police Want To Use It
• - Ignored When Not Useful
• - EX Use of Anti-Sodomy Laws Only Against Gay
  Men
• - Not Against Heterosexual Married Couples

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SUMMARY OF LON FULLER

• Espouses Morality of Duty as Basis for Law
• Disagrees with Morality of Aspiration
• Believes States Should Make Law Which Is
• Based On Guiding Principles
• Will Publicized Intelligible
• Well Publicized Prior To Enforcement
• Absent Of Contradictions
• Reasonable To Fulfill Doesnt Change Much
• Is Enforced On A Regular Basis

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ROBERT COOLEY ANGEL (c. 1940)ON SOCIOLOGY OF LAW

• Sees LAW as One of a Network of Interrelating
  Social Structures in a Society
• Sociology Can Contribute to Legal Education
• By Understanding Milieu in which Law Operates
• Law These Units Are Interdependent
• There Are Other Means of Social Control (School,
  Family, Religion, Community Opinion)
• Lawyers, Police, Courts Should Recognize These
• Q Should Everything Be Enforced by Law? (Sex?)

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R.C. ANGELL (ctd)

• Socio- Legal Research is Useful Difficult
• Rules Are Difficult to Define
• Courts Vary Much in Enforcement
• Law Administration Often Vary (cf. Fuller?)
• Claims There is Little Variation in Acceptance of
  Laws Sociologist Cant Study Constants
• NOTE Is This True? Or Did He Simply Miss the
  Variation?

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RESEARCH IN SOCIOLOGY OF LAW (Angell)

• Social Causes of Legal Rules
• Compare Law with Custom
• Analyze Rules v. Administration
• Social Effects of Legal Rules
• On the People on the Administrators
• How Knowledge of Law Is Diffused
• How Much People Know about Law
• Where They Get Their Knowledge
• Differential Use Law v. Informal Social Control

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LAURA NADER (Anthopologist)

• Law Belongs in a Social Context
• Law Is Only One Social Control Mechanism
• Law Does 2 Things
• Settles Disputes (Resolve Social Messes)
• Maintains Order
• Dispute Settlement Easier ?Maintain Order
• Laws Courts Perform Many Other Functions
• Scare Spouse Embarrass Increase City Treasury
• Important Parts of Anthro (Sociology) of Law
• Her Research Letters to Ralph Nader

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CONCLUSION WHAT SOCIOLOGY OF LAW DOES

• Analyzes Law Legal System
• From Perspective of Society
• Sees Law As a Component of Society
• Which Performs Important Social Functions
• Is Established Influenced by Founding Society
• In Turn, Has a Great Impact on the Society
• Can Have Unintended Impacts on Society
• We Will Be Examining These Issues This Term