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Walsh power point_chapter 1
Law, Justice, and Society:A Sociolegal Introduction Chapter 1 Law: Its Function and Purpose
Law: Its Function and PurposeIn 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)
Law: Its Function and PurposeWhat Is Law?• 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 by imposition of penalties for violations• binds people of a common culture
Law: Its Function and PurposeSix Elements of CultureCulture is the totality of learned socially transmitted behaviors, ideas, values, customs, artifacts, and technology of groups of peopleSix elements are beliefs, values, norms, symbols, technology, and languageWhat are these elements, and how do they relate to law?
Law: Its Function and Purpose Discouraged Encouraged behavior behavior Values and beliefs Folkways/ mores/norms LAW
Law: Its Function and PurposeBeliefs• 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)
Law: Its Function and Purpose Beliefs (cont.)• laws are enacted to support deeply held beliefs• as beliefs change, so do the laws that support them – prescientific astronomy – slavery
Law: Its Function and Purpose Values• 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
Law: Its Function and PurposeValues (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
Law: Its Function and PurposeNorms• a norm is the action component of a value or a belief• it patterns social behavior in ways consistent with those values and beliefs
Law: Its Function and PurposeNorms (cont.)• mores – norms with serious moral connotations – become codified into law• folkways – Less-serious norms – habits that many conform to automatically
Law: Its Function and PurposeNorms 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 by which norms are passed on between generations
Law: Its Function and PurposeNorms and the Law (cont.)Positive law: Laws that arise from the norms and customs of a given cultureNatural 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
Law: Its Function and PurposeSymbols• 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
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
Law: Its Function and PurposeTechnology• 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 creates different physical, social, and psychological environments
Law: Its Function and PurposeThree Ways Technology Affects Law(Vago, 1991)1. Supplies technical inventions and refinements that change ways criminal investigations are made and the law is applied2. Advances in the media may change the intellectual climate in which the legal process is executed3. Presents the law with new conditions with which it must wrestle
Law: Its Function and PurposeLanguage• 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
Law: Its Function and Purpose Legal Philosophers and Scholars• Hammurabi• Plato• Aristotle• St. Thomas Aquinas• Thomas Hobbes• John Locke
Law: Its Function and Purpose 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
Law: Its Function and PurposeCode 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
Law: Its Function and NaturePlato (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 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
Law: Its Function and PurposePlato (427-347 BCE) (cont.)• law is necessary to regulate self-interestWhen 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).
Law: Its Function and Purpose Plato (427-347 BCE) (cont.)• the state is virtuous• only through the state can citizenry behavior be regulated• favored “philosopher king”
Law: Its Function and PurposeAristotle (384-322 BCE)• 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
Law: Its Function and PurposeAristotle (384-322 BCE) (cont.)• equates law with justice• the goal of law is 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 thelegislative art are lawful, and each of these we say is just (Aristotle, 1952:377).
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
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).
Law: Its Function and PurposeThomas Hobbes (1588-1679, Leviathan)• humans are vicious 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
Law: Its Function and PurposeThomas Hobbes (1588-1679, Leviathan) (cont.) • preferred a strong sovereign capable of enforcing the social contract • disavowed any notion of natural law • the ultimate end of government is security; the end justifies the means When a Commonwealth is once settled, then are there actually laws, 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).
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 – England’s Glorious Revolution of 1688 – American Revolution of 1776 – French Revolution of 1789 (Lavine, 1989)
Law: Its Function and PurposeJohn Locke (1632-1704, Second Treatise onGovernment) (cont.)• individuals are born as “blank slates”• pre-civilized society was inferior to an organized political state only because it lacked 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?
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 the freedom of the rest; they are left as they were in the liberty of the state of nature (Locke, 1952:54).
Law: Its Function and Purpose John Locke (1632-1704, Second Treatise on Government) (cont.)• government exists to protect individual freedoms• if a government does not maintain its part of the social contract, the governed can break it
Law: Its Function and PurposeSociological Perspective of Law• Max Weber• Emile Durkheim
Law: Its Function and PurposeMax Weber (1864-1920, Economy andSociety)• 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 so2. The external pressures and threats involve the use of coercion and force3. These external pressures and threats are carried out by agents of the state
Law: Its Function and PurposeMax Weber (1864-1920, Economy and Society)(cont.) • not concerned with natural law • focused on the rationalization of the world – how world changed from feudal system to capitalism
Law: Its Function and PurposeMax Weber (1864-1920, Economy and Society)(cont.)• fourfold typology of legal decision making based on rationality, irrationality, and formal and substantive procedures
Law: Its Function and PurposeWeber’s Fourfold Typology of Legal Decision Making(cont.)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
Law: Its Function and PurposeWeber’s Fourfold Typology of Legal Decision Making(cont.)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
Law: Its Function and Purpose Weber’s Fourfold Typology of Legal Decision Making (cont.) 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
Law: Its Function and PurposeWeber’s Fourfold Typology of Legal Decision Making(cont.)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
Law: Its Function and Purpose Emile 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 feel an emotional sense of belonging to others and to a group
Law: Its Function and PurposeDurkheim’s 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
Law: Its Function and PurposeDurkheim’s Two Types of Social Solidarity(cont.) • 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
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 creates harsh penalties, or retributive or repressive justice• organic solidarity creates tolerance among minor rule breakers and more humane punishments, called restitutive justice
Law: Its Function and Purpose Two Opposing Perspectives: Conflict and Consensus
Law: Its Function and Purpose Consensus View of Society• structured to maintain its stability• integrated network of institutions that functions 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
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
Law: Its Function and PurposeIdeal 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
Law: Its Function and PurposeThe 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
Law: Its Function and PurposeThe Consensus Perspective (cont.)• 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
Law: Its Function and PurposeThe 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
Law: Its Function and PurposeThe 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.
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).