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

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)

The Importance of LawThe 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


• 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?


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


• 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


• Laws are enacted to support deeply held beliefs• As beliefs change, so do the laws which support

them change– Prescientific Astronomy

– Slavery

Beliefs (cont.)


• 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


• 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.)


• 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


• Mores– norms with serious moral connotations

– become codified into law

• Folkways– less serious norms

– habits that many conform to automatically

Norms (cont.)


• 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


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.)


• Norms and the Law (cont.)

Natural law (cont.) Philosophize about the law as it ought to be


• 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


• 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


Symbols and the Law (cont.)

Discouraged behavior Encouraged behavior

Values and beliefs

Folkways/mores/norms

LAW


• 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


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)


• 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


Legal Philosophers and Scholars• Hammurabi• Plato• Aristotle• St. Thomas Aquinas• Thomas Hobbes

• John Locke


• 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

The Code of Hammurabi


• 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.)

Law: Its Function and NatureLaw: 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 (427-347 BCE)


• 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.)


• The state is virtuous• Only through the state can citizenry behavior be

regulated• Favored “philosopher king”

Plato (cont.)


• 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 (384-322 BCE)


• 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.)


• 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)


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).


• 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 (1588-1679; Leviathan)


• 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.)


• 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 (1632-1704; Second Treatise on Government)


• 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.)


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).


• 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.)


Sociological Perspective of Law• Max Weber• Émile Durkheim


• 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 (1864-1920; Economy and Society)


• Not concerned with natural law• Focused on the rationalization of the world

– how world changed from feudal system to capitalism.

Max Weber (cont.)


Four-fold typology of legal decision making based on rationality, irrationality and formal and substantive procedures

Max Weber (cont.)


• 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


• 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


Formal Irrationality


• 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


Substantive 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


Formal Rationality


Irrational Rational

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.


• 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 (1858-1917; Division of Labor in Society)


• 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


• 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


• 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


Two Opposing Perspectives:

Conflict and Consensus


• 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


• 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


Ideal TypesThese 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


• 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


• 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.)


• 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


• 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.)


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