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

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

2 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 lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;—let 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 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 What Is Law?

5 Law: Its Function and Purpose 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? Six Elements of Culture

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 Laws are enacted to support deeply held beliefs As beliefs change, so do the laws which support them change –Prescientific Astronomy –Slavery Beliefs (cont.)

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 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.)

10 Law: Its Function and Purpose 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

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

12 Law: Its Function and Purpose 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 Norms and the Law

13 Law: Its Function and Purpose 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 Norms and the Law (cont.)

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 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

16 Law: Its Function and Purpose 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

17 Law: Its Function and Purpose Symbols and the Law (cont.) Discouraged behaviorEncouraged behavior Values and beliefs Folkways/mores/norms LAW

18 Law: Its Function and Purpose 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 Technology

19 Law: Its Function and Purpose 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)

20 Law: Its Function and Purpose 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

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 King of Babylonia ( 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 The Code of Hammurabi

23 Law: Its Function and Purpose 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.)

24 Law: Its Function and Nature 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 Plato ( BCE)

25 Law: Its Function and Purpose 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 (cont.)

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

27 Law: Its Function and Purpose 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 Aristotle ( BCE)

28 Law: Its Function and Purpose 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). Aristotle (cont.)

29 Law: Its Function and Purpose 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 ( )

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 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 Thomas Hobbes ( ; Leviathan)

32 Law: Its Function and Purpose 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). Thomas Hobbes (cont.)

33 Law: Its Function and Purpose 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) John Locke ( ; Second Treatise on Government)

34 Law: Its Function and Purpose 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? John Locke (cont.)

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 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 (cont.)

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

38 Law: Its Function and Purpose 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 Max Weber ( ; Economy and Society)

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

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

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

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

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

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

45 Law: Its Function and Purpose IrrationalRational Substantive Decisions made subjectively by non-legally trained individuals on a case-by case basis. Decisions made on a case- by-case basis guided by logically consistent principles (bureaucratic rules, religion, ideology) other than the law. Formal Decisions based on formal rules, but rules not based on logic (superstition, magic, ordeals, oath swearing, etc.). Decisions based on formal logical rules and principles made by legally trained persons bound by those rules, but with a high degree of independence.

46 Law: Its Function and Purpose 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 Émile Durkheim ( ; Division of Labor in Society)

47 Law: Its Function and Purpose 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

48 Law: Its Function and Purpose 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

49 Law: Its Function and Purpose 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 Organic Solidarity and the Law

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

51 Law: Its Function and Purpose 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 Consensus View of Society

52 Law: Its Function and Purpose 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

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 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

55 Law: Its Function and Purpose 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.)

56 Law: Its Function and Purpose 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

57 Law: Its Function and Purpose 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.)

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 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).


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