Walsh power point_chapter 1

Law, Justice, and Society:
A Sociolegal Introduction

Chapter 1
Law: 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)

What 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

Six Elements of Culture
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
What are these elements, and how do they relate to
law?


Discouraged Encouraged
behavior behavior

Values and
beliefs

Folkways/
mores/norms

LAW

Beliefs
• 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 (cont.)
• laws are enacted to support deeply held beliefs
• as beliefs change, so do the laws that support them
– prescientific astronomy
– slavery


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

Values (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

Norms
• 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 (cont.)
• mores
– norms with serious moral connotations
– become codified into law
• folkways
– Less-serious norms
– habits that many conform to automatically

Norms 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

Norms and the Law (cont.)
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

Symbols
• 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 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

Technology
• 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

Three Ways Technology Affects Law
(Vago, 1991)
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

Language
• 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


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

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

Code 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 Nature
Plato (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

Plato (427-347 BCE) (cont.)
• 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 (427-347 BCE) (cont.)
• the state is virtuous
• only through the state can citizenry behavior be
regulated
• favored “philosopher king”

Aristotle (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

Aristotle (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 the
legislative art are lawful, and each of these we say is
just (Aristotle, 1952:377).

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 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).

Thomas 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

Thomas 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).

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)

Government) (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?

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).

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


Sociological Perspective of Law
• Max Weber
• Emile Durkheim

Max Weber (1864-1920, Economy and
Society)
• 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)
(cont.)
• not concerned with natural law
• focused on the rationalization of the world
– how world changed from feudal system to
capitalism


Max Weber (1864-1920, Economy and Society)
(cont.)
• fourfold typology of legal decision making based on
rationality, irrationality, and formal and substantive
procedures

Weber’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

(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

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

(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

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


Durkheim’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

Durkheim’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

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


Two Opposing Perspectives:
Conflict and Consensus

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

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


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

The 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

The 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

The 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

The 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.


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).

Walsh power point_chapter 1

Recommended

Recommended

More Related Content

What's hot

What's hot (20)

Similar to Walsh power point_chapter 1

Similar to Walsh power point_chapter 1 (20)

More from sevans-idaho

More from sevans-idaho (20)

Recently uploaded

Recently uploaded (20)

Walsh power point_chapter 1

Editor's Notes