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Law, Justice, and Society: A Sociolegal Introduction

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Title: Law, Justice, and Society: A Sociolegal Introduction


1
Law, Justice, and Society A Sociolegal
Introduction
  • Chapter 1
  • Law Its Function and Purpose

2
Law 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)

3
The Importance of Law
  • Let reverence for the laws, be breathed by every
    American mother, to the lisping babe, that
    prattles on her laplet it be taught in schools,
    in seminaries, and in colleges let it be written
    in Primers, spelling books, and in Almanacslet
    it be preached from the pulpit, proclaimed in
    legislative halls, and enforced in courts of
    justice. And, in short, let it become the
    political religion of the nation and let the old
    and the young, the rich and the poor, the grave
    and the gay, of all sexes and tongues, and colors
    and conditions, sacrifice unceasingly upon its
    altars (Basler 2007, 6)
  • Abraham Lincoln,1838

4
Law Its Function and Purpose
What Is Law?
  • Written body of general rules of conduct
  • Applicable to all members of community, society,
    or culture
  • Emanate from a governing authority
  • Enforced by its agents by imposition of penalties
    for violations
  • Binds people of a common culture

5
Law Its Function and Purpose
Six Elements of Culture
  • Culture is the totality of learned socially
    transmitted behaviors, ideas, values, customs,
    artifacts, and technology of groups of people
  • 6 elements are beliefs, values, norms, symbols,
    technology, and language
  • What are these elements, and how do they relate
    to law?

6
Law Its Function and Purpose
  • 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
7
Law Its Function and Purpose
Beliefs (cont.)
  • Laws are enacted to support deeply held beliefs
  • As beliefs change, so do the laws which support
    them change
  • Prescientific Astronomy
  • Slavery

8
Law Its Function and Purpose
  • 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
9
Law Its Function and Purpose
Values (cont.)
  • 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

10
Law Its Function and Purpose
Norms
  • A norm is the action component of a value or a
    belief
  • It patterns social behavior in ways consistent
    with those values and beliefs

11
Law Its Function and Purpose
Norms (cont.)
  • Mores
  • norms with serious moral connotations
  • become codified into law
  • Folkways
  • less serious norms
  • habits that many conform to automatically

12
Law Its Function and Purpose
Norms and the Law
  • Laws always reflect core values and mores of
    culture
  • Western core values are generally from
    Judeo-Christian heritage
  • Law is a social tool where norms are passed on
    between generations

13
Law Its Function and Purpose
Norms and the Law (cont.)
  • Positive law Laws that arise from the norms and
    customs of a given culture
  • Legal positivism A theory of law that explains
    law by examining its cultural context and views
    law as socially constructed, Furthermore law is
    considered morally relative
  • 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

14
Law Its Function and Purpose
  • Norms and the Law (cont.)
  • Natural law (cont.) Philosophize about the law as
    it ought to be

15
Law Its Function and Purpose
Symbols
  • 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

16
Law Its Function and Purpose
Symbols and the Law
  • 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

17
Law Its Function and Purpose
  • Symbols and the Law (cont.)

Discouraged behavior
Encouraged behavior
Values and beliefs
Folkways/mores/norms
LAW
18
Law Its Function and Purpose
Technology
  • 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 create different
    physical, social, and psychological environments
  • Evolved into a risk society that is preoccupied
    with the future

19
Law Its Function and Purpose
Three Ways Technology Affects law (Vago 1991)
  • 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

20
Law Its Function and Purpose
Language
  • 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

21
Law Its Function and Purpose
  • Legal Philosophers and Scholars
  • Hammurabi
  • Plato
  • Aristotle
  • St. Thomas Aquinas
  • Thomas Hobbes
  • John Locke

22
Law Its Function and Purpose
The Code of Hammurabi
  • 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

23
Law Its Function and Purpose
Code of Hammurabi (cont.)
  • 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

24
Law Its Function and Nature
Plato (427-347 BCE)
  • Theory of Forms
  • forms are immaterial essences independent of our
    knowledge about them they are the ultimate
    realities of existence
  • we can only perceive them imperfectly
  • law is one of these forms
  • lawmakers must gain an understanding of the form
    of law to create best resemblance of it

25
Law Its Function and Purpose
Plato (cont.)
  • 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).
26
Law Its Function and Purpose
Plato (cont.)
  • The state is virtuous
  • Only through the state can citizenry behavior be
    regulated
  • Favored philosopher king

27
Law Its Function and Purpose
Aristotle (384-322 BCE)
  • State exists so that people can not only live
    together, but 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

28
Law Its Function and Purpose
Aristotle (cont.)
  • Equates law with justice
  • The goal of law was 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).
29
Law Its Function and Purpose
St. Thomas Aquinas (1225-1274)
  • 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

30
Law Its Function and Purpose
  • 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).

31
Law Its Function and Purpose
Thomas Hobbes (1588-1679 Leviathan)
  • Humans are viscous and only concerned 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

32
Law Its Function and Purpose
Thomas Hobbes (cont.)
  • preferred a strong sovereign capable of enforcing
    the social contract
  • disavowed any notion of natural law
  • the ultimate end of government was security the
    end justified the means

When a Commonwealth is once settled, then are
there actually law, 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).
33
Law Its Function and Purpose
John Locke (1632-1704 Second Treatise on
Government)
  • Held a more optimistic view of human nature than
    Hobbes
  • Credited with providing the justification for
  • Glorious (English) Revolution of 1688
  • American Revolution of 1776
  • French Revolution of 1789 (Lavine 1989)

34
Law Its Function and Purpose
John Locke (cont.)
  • Individuals are born as blank slates
  • Pre-civilized society was inferior to an
    organized political state only because it lacks
    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?

35
Law Its Function and Purpose
  • 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
    them freedom of the rest they are left as they
    were in the liberty of the state of nature (Locke
    1952, 54).

36
Law Its Function and Purpose
John Locke (cont.)
  • Government exists to protect individual freedoms
  • If a government does not maintain its part of the
    social contract, the governed can break it

37
Law Its Function and Purpose
  • Sociological Perspective of Law
  • Max Weber
  • Émile Durkheim

38
Law Its Function and Purpose
Max Weber (1864-1920 Economy and Society)
  • law was different from other rules in three ways
  • 1. Regardless 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

39
Law Its Function and Purpose
Max Weber (cont.)
  • Not concerned with natural law
  • Focused on the rationalization of the world
  • how world changed from feudal system to
    capitalism.

40
Law Its Function and Purpose
Max Weber (cont.)
  • Four-fold typology of legal decision making based
    on rationality, irrationality and formal and
    substantive procedures

41
Law Its Function and Purpose
Webers Four-Fold Typology of Legal Decision
Making Substantive Irrationality
  • 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

42
Law Its Function and Purpose
Webers Four-Fold Typology of Legal Decision
Making Formal Irrationality
  • 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

43
Law Its Function and Purpose
Webers Four-Fold Typology of Legal Decision
Making Substantive Rationality
  • 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

44
Law Its Function and Purpose
Webers Four-Fold Typology of Legal Decision
Making Formal Rationality
  • 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

45
Law Its Function and Purpose
46
Law Its Function and Purpose
Émile Durkheim (1858-1917 Division of Labor in
Society)
  • 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 felt an emotional
    sense of belonging to others and to a group

47
Law Its Function and Purpose
Durkheims Two Types of Social Solidarity
  • 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

48
Law Its Function and Purpose
Durkheims Two Types of Social Solidarity
  • 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

49
Law Its Function and Purpose
Organic Solidarity and the Law
  • 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 created harsh penalties, or
    retributive or repressive justice
  • Organic solidarity created tolerance among minor
    rule breakers and more humane punishments, called
    restitutive justice

50
Law Its Function and Purpose
  • Two Opposing Perspectives
  • Conflict and Consensus

51
Law Its Function and Purpose
Consensus View of Society
  • Structured to maintain its stability
  • Integrated network of institutions that function
    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

52
Law Its Function and Purpose
Conflict View of Society
  • Characterized by conflict and dissension between
    groups with sharply different interests
  • Limited resources mean that conflict is
    inevitable
  • Order is maintained purely by coercion

53
Law Its Function and Purpose
  • 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

54
Law Its Function and Purpose
The Consensus Perspective
  • 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

55
Law Its Function and Purpose
The Consensus Perspective (cont.)
  • If coercion is used, it is the individuals
    fault, not a flaw in the law
  • Law is obeyed out of respect, not fear
  • Law is willingly supported by all good people

56
Law Its Function and Purpose
The Conflict Perspective
  • 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

57
Law Its Function and Purpose
The Conflict Perspective (cont.)
  • 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.

58
Law Its Function and Purpose
  • 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 unscrupulousSo 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).
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