LS308: Law and Society Unit 2 Seminar Unit 2 Review of Unit 1

LS308: Law and SocietyUnit 2 Seminar

Unit 2

Review of Unit 1

Confidential & Proprietary • Internal Kaplan Use Only.

Review of Unit 1

The Social Nature and Significance of LawMajor Themes•Law is to be understood as a social phenomenon that is a very significant part of society and our personal lives.

•Law is an essential part of society and how our society works can only be understood if the role law plays is taken carefully into account.

•Traditional v. social science approach

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Unit 2

By the end of Unit 2, you should be able to:•Examine the definitions of law and the existence of law

•Assess the reasons people obey the law

•Assess the various explanations proposed by scholars for the existence of law

•Evaluate the various contemporary perspectives on law and its implications for society

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Terminology

•Official (p. 22) This is a term referring to governmental social control.

• Unofficial (p. 22) This is a term referring to nongovernmental social control.

• Formal (p. 22) Social control involving rules and regulations that are written and enforced according to written guidelines.

• Informal (p. 22) Enforcement of rules using discretion.

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Terminology

•Legality (p. 26) The rule of law.• Legal Formalism (p. 31) The belief that law is a self-contained system of logic that is independent of social and moral considerations (also known as legal positivism or analytical jurisprudence).

• Natural Law (pp. 31-32) Legal principles derived from nature and thought to be binding on human society.

•Deviance (p. 43) Any behavior that violates social norms and arouses negative social reactions.

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How do we define Law?

Law is extremely difficult to define. A major problem is determining the distinction between law and custom. For example, issues of formal versus informal and official versus unofficial complicate the process of precisely determining when laws exist. The definitions of law we adopt affects decisions concerning the existence or nonexistence of law in any particular society.

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How do we define law?

Whether a rule (custom) reaches the status of a law involves three characteristics: (1) the pressure to comply with the rule is external to the individual, (2) this pressure involves coercion and force and especially physical force, and (3) the party that applies such force is socially authorized to do so.

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Many scholars feel that such definitions of law focus too much attention on coercion as the reason for obedience. They suggest there are other reasons why people conform, including morality, obligation, concern for peer pressure, harm to themselves, and habit.

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Besides the issues of coercion and obedience, the definitions of law provided to this point in the chapter are positivistic definitions, meaning they describe what law is but not what it should be. In contrast, natural law definitions incorporate principles derived from nature and thought to be binding on human law. Sociologist Philip Selznick argues that the essence of law is legality, or rule of law.

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According to Ron Fuller, rules or commands constitute law only if they adhere to the “inner morality” of the law. To do so, they must satisfy several criteria, including:

-Rules must be general.-Rules must be generally known.-Rules must not be retroactive.-Rules must be reasonably clear.-Rules must not be contradictory.-Rules must not require the impossible or unreasonable.-Rules should be relatively stable through time.

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Why does law exist?

Scholars have offered several perspectives over the years, including legal formalism, utilitarianism, the historical school, legal realism, sociological jurisprudence, and the early law and society movement. More contemporary perspectives include functionalist theory, conflict theory, critical legal studies, critical race theory, and feminist legal theory.

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Legal Formalism

Legal formalism is based on the central belief that law is a self-contained system of logic that is independent of social and moral considerations.

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Utilitarianism

The central belief of utilitarianism is that people act rationally and with free will and are chiefly concerned with maximizing their pleasure and reducing their pain. So, the reasoning is that the criminal justice system needs to be punitive only to the degree that it deters people from committing crime.

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The Historical School

The historical school is a name given to the work of several nineteenth and early twentieth- century scholars who discussed how law and legal systems changed over the centuries as societies developed from ancient times. Important scholars involved in this work included Friedrich Karl von Savigny, Sir Henry Maine, Emile Durkheim, Max Weber, and Karl Marx.

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Legal Realism

Legal realism argues that how law really works can be very different from how it is supposed to work in theory. Important legal realists were Karl Llewellyn and Jerome Frank.

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School of Sociological Jurisprudence

The school of sociological jurisprudence argued that law has social underpinnings and impact. Proponents of this perspective included Eugen Ehrlich and Roscoe Pound.

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Early law and society movement

A basic argument of proponents of this movement is that law exists in traditional societies that do not have formal criminal justice systems such as found in modern societies.

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Inequalities in court

After World War II many social scientists shifted focus on inequalities in how law and criminal justice characterized U.S. society. Several empirical studies clearly identified socioeconomic backgrounds, religious upbringing, and political leanings of justices influenced their decisions on various cases. By the 1960s sociologists published several accounts that emphasized the lack of justice in the criminal courts for the poor and people of color.

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Functionalist theory

Two contemporary perspectives in the study of law and society are functionalist and conflict theories. Functionalist theory developed as an intellectual reaction to the French Revolution of 1789 and to the Industrial Revolution of the nineteenth century. Early functionalists were concerned about social order and stability in the wake of these two revolutions. Their emphasis is on the need of society to have effective rules and socialization and strong social bonds to survive.

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Conflict theory

Conflict theory suggests that law is characterized by inequality and also contributes to inequality in the larger society. Proponents of this theory further suggest that major sociodemographic groups disagree on important legal issues in ways that reflect their life experiences and different positions on the socioeconomic ladder. Finally, they suggest that law generally sides with the more powerful, established interests of society.

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Instrumental view

The instrumental view is a Marxist approach that assumes that law and the state are tools that can fairly easily be used by the ruling class to oppress the working class and in other respects to maintain its own superior status.

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Structuralist view

The structuralist view concedes that the state and its legal system are relatively autonomous from the ruling class but that any victories by the working class are sham victories that ultimately reinforce ruling-class dominance. Proponents of the dialectical view argue that legal and political victories by the have-nots can be real and consequential and not just sham.

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Critical legal studies movement

The critical legal studies movement began in the 1970s and aroused much controversy. Its basic beliefs are that law is political, that law is indeterminate, that law is ideological, and that legal education contributes to law students’ passivity and to social inequality in the larger society.

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Critical race theory

Critical race theory draws on social science disciplines to argue the racialized nature and impact of law in the United States and other modern societies. Its main argument is that the United States is a racist society and that the law both manifests this racism and contributes to this racism.

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Feminist legal theory

Feminist legal theory arose as a reaction to the neglect in the critical legal studies movement to gender issues. It argues that law both reflects and contributes to fundamental sexism in larger society.

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Unit 2

Discussion Scenario:• Several recent cases have highlighted what some believe to be abuses in the legal system, and racial inequity in the way the laws are administered. An example of this is the trial that surrounded the police beating of Los Angeles native Rodney King in the year 1991.

• How much discretionary power should police, prosecutors, and judges have in terms of applying the law in specific cases?

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PRACTICE QUESTIONS

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Practice Question # 1

For many scholars, laws are official rules and ____.• regulations•values•customs•attitudes

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Answer to Practice Question # 1

•Correct Answer: a (p. 22)

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•Many of the definitions for law are ____ definitions, meaning that they describe what law is but not what it should be.

- autocratic- relativistic- residual- positivistic

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•Correct Answer: d (p. 26)

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•Which of the following is not one of the criteria for establishing something as a law using the “inner morality of law” view?

- Rules must be specific.- Rules must be generally known.- Rules must be reasonably clear.- Rules should be relatively stable through time.

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•Correct Answer: a (pp. 26-27)

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•The central assumption of __________ is the belief that law is a self-contained system of logic that is independent of social and moral considerations.

- the neutral law model- structural jurisprudence- legal formalism- critical legalism

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•Correct Answer: c (p. 31)

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•The _______ view argues that people wish to maximize their pleasure and reduce their pain.

- traditionalist- utilitarian- Reformist- critical

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•Correct Answer: b (p. 33)

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•The main effort of _______ is to understand how law really works as opposed to how it is supposed to work in theory.

- legal equity- legal structuralism- legal realism- legal relativism

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•The early law and society movement encompassed several academic disciplines and was spearheaded by __________.

- economics- anthropology- sociology- politics

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•Correct Answer: b (p. 39)

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•__________ theory is derived from the work of Karl Marx and Friedrich Engels.

- Developmental- Ecological - Conflict- Constructionist

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•Which of the following statements does not reflect the thinking of critical legal studies?

- Law is politics.- Law is indeterminate.- Law is ideology.- Law is functional.

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•_______ theory has made a significant methodological contribution to law and society scholarship in that is pro-narravtive.

- Tradition- Feminist- Cultural bias- Critical race

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WHAT QUESTIONS DO YOU HAVE?

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Unit 2

Understanding Law & SocietyExtra! Extra!

•U.S. Department of Justice Bureau of Justice Statistics• http://bjs.ojp.usdoj.gov/

•Learn more about the legal theorist Emile Durkheim• http://www.emile-durkheim.com/

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Documents

LS308: Law and Society Unit 2 Seminar Unit 2 Review of Unit 1