Law and Justice Chapter 1 PowerPoint

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

2. Law: Its Function and Purpose
• Written body of general rules of conduct
• Applicable to all members of community,
society, or culture
• Emanates from a governing authority
• Reinforced by its agents
• Binds people of a common culture
What Is Law?

3. Law: Its Function and Purpose
Culture is the totality of learned socially transmitted
behaviors, ideas, values, customs, artifacts, and
technology of groups of people.
Six elements are beliefs, values, norms, symbols,
technology, and language.
Six Elements of Culture

4. 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)
• Laws are enacted to support deeply held beliefs.
• As beliefs change, so do the laws that support
them.
Beliefs

5. Law: Its Function and Purpose
• Normative standards
• More general and abstract than beliefs
• American values transplanted and modified
• Either general or more specific
– General, “core” values
– More specific values
Values

6. Law: Its Function and Purpose
• The action component of a value or a belief
• It patterns social behavior in ways consistent with
those values and beliefs.
• Mores
– Norms with serious moral connotations
• Folkways
– Less serious norms
Norms

7. 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 by which norms are passed on
between generations.
Norms and the Law

8. Law: Its Function and Purpose
Positive law: Laws that arise from the norms and
customs of a given culture
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.)

9. Law: Its Function and Purpose
• Concrete physical signs that signify abstractions
• Can be specific
• Can be suffused with broad, emotional meaning
• Symbolism surrounding the law helps those who
observe it feel its majesty.
• Symbolism helps legitimize and sustain the law.
Symbols

10. 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
• Creates different physical, social, and psychological
environments
Technology

11. 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)

12. 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

13. Law: Its Function and Purpose
Legal Philosophers and Scholars
• Hammurabi
• Plato
• Aristotle
• Thomas Hobbes
• John Locke
• John Rawls

14. Law: Its Function and Purpose
• 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.
Code of Hammurabi

15. 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.)

16. 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 perceive them only imperfectly.
– Law is one of these forms.
– Lawmakers must gain an understanding of the form of law
to create the best resemblance of it.
Plato (427–347 BCE)

17. Law: Its Function and Purpose
• Law is necessary to regulate self-interest.
• The state is virtuous.
• Only through the state can citizenry behavior be
regulated.
• Without law, human nature would run amok.
• Humans lack power to distinguish good from evil.
Plato (427–347 BCE) (cont.)

18. Law: Its Function and Purpose
• State exists so that people can not only live
together but also 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.
• Equates law with justice
• The goal of law is to ensure that persons receive
what they justly deserve by their actions.
Aristotle (384–322 BCE)

19. Law: Its Function and Purpose
• Humans are selfish and concerned only 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.
• Argued for strong sovereign to enforce social
contract
• No laws exist without government.
Thomas Hobbes (1588–1679, Leviathan)

20. Law: Its Function and Purpose
• Held a more optimistic view of human nature
than Hobbes
• Pre-civilized society was inferior to an organized
political state only because it lacked law.
• Individuals are born as “blank slates.”
• It was governed by natural laws based on moral
obligations.
• Believed in social contract like Hobbes, but
believed it should be there to provide individual
freedoms
John Locke (1632–1704, Second Treatise on
Government)

21. Law: Its Function and Purpose
• Law is comparable to scientific theory.
• Justice involves a hypothetical situation.
– Original position
• Individuals were equal, rational, and self-
interested.
• Arranged social institutions in a just society
• Equal opportunity has to be somewhat
discriminatory.
• Veil of ignorance existed.
John Rawls (1921–2002)

22. Law: Its Function and Purpose
Sociological Perspective of Law
• Max Weber
• Emile Durkheim

23. Law: Its Function and Purpose
• Law is different from other rules in three ways:
1. Regardless of 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)

24. 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
• Increase of predictability and progress in society
• Fourfold typology of legal decision making
– Based on rationality, irrationality, and formal and
substantive procedures
Max Weber (1864–1920, Economy and Society)
(cont.)

25. 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 Fourfold Typology of Legal Decision Making
(cont.)
Substantive Irrationality

26. Law: Its Function and Purpose
• Based on religious dogma, magic, oath-swearing,
and trial by combat or ordeal
• Formal rules followed, but they are not based on
reason or logic
• Example: settling cases in some Islamic countries
Weber’s Fourfold Typology of Legal Decision Making
(cont.)
Formal Irrationality

27. 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 Fourfold Typology of Legal Decision Making (cont.)
Substantive Rationality

28. 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 Fourfold Typology of Legal Decision Making (cont.)
Formal Rationality

29. Law: Its Function and Purpose
• Relationship between types of law and types of
society
• All societies exist on the basis of a common moral
order.
• Examined effects of division of labor on social
solidarity
– The degree to which people feel an emotional
sense of belonging to others and to a group
Emile Durkheim (1858–1917, Division of
Labor in Society)

30. 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

31. 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
(cont.)

32. Law: Its Function and Purpose
Two Opposing Perspectives:
Conflict and Consensus

33. Law: Its Function and Purpose
• Structured to maintain stability
• Integrated network of institutions that function to
maintain social order
• Stability achieved through cooperation, shared
values, and cohesive solidarity
• Conflicts arise but only temporarily
Consensus View of Society

34. Law: Its Function and Purpose
• All legal theorists so far discussed
• Law is a neutral framework
– Patches 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

35. Law: Its Function and Purpose
• If coercion is used
– 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.)

36. Law: Its Function and Purpose
• Characterized by conflict and dissension between
groups with sharply different interests
• Limited resources
– Conflict is inevitable
• Order maintained purely by coercion
• Law functions to preserve the power of the most
exploitive individuals.
The Conflict Perspective

37. Law: Its Function and Purpose
• Karl Marx & Frederich Engels
– Society is composed of two classes
• The rulers and the ruled
– Conflicts always settled in favor of ruling class
• Defined as those who control the means of
production
– Ruled accept due to a false consciousness
– Rulers can create false consciousness because they are
in control.
The Conflict Perspective (cont.)

38. Law: Its Function and Purpose
• Critical Legal Studies (CLS)
– Emerging legal theory in late 1660s through
early 1970s
– Challenge status quo and rejected much of
positive and natural law
– Law is politics by other means.
– Legal rules are a series of statuses that
legitimize exploitation
• Done to the detriment of workers
The Conflict Perspective (cont.)

39. 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.
– Conflict may form the very foundation of later
consensus in pluralistic societies.