Download From Law to Order: The Theory and Practice of Law and Justice

Law, Justice, and Society:
A Sociolegal Introduction
Chapter 1
Law: Its Function and Purpose
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)
The 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
Law: Its Function and Purpose
What Is Law?
• 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
Law: Its Function and Purpose
Six Elements of Culture
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?
Law: Its Function and Purpose
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)
Law: Its Function and Purpose
Beliefs (cont.)
• Laws are enacted to support deeply held beliefs
• As beliefs change, so do the laws which support
them change
– 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 Purpose
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
Law: Its Function and Purpose
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
Law: Its Function and Purpose
Norms (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 Purpose
Norms and the Law
• Laws always reflect core values and mores of
culture
• Western core values are generally from JudeoChristian heritage
• Law is a social tool where norms are passed on
between generations
Law: Its Function and Purpose
Norms and the Law (cont.)
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
Law: Its Function and Purpose
• Norms and the Law (cont.)
Natural law (cont.) Philosophize about the
law as it ought to be
Law: Its Function and Purpose
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
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 Purpose
Symbols and the Law (cont.)
Discouraged behavior
Encouraged behavior
Values and beliefs
Folkways/mores/norms
LAW
Law: Its Function and Purpose
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 create different
physical, social, and psychological environments
• Evolved into a risk society that is preoccupied
with the future
Law: Its Function and Purpose
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
Law: Its Function and Purpose
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
Law: Its Function and Purpose
Legal Philosophers and Scholars
•
•
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Hammurabi
Plato
Aristotle
St. Thomas Aquinas
Thomas Hobbes
• John Locke
Law: Its Function and Purpose
The 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 Purpose
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 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
Law: Its Function and Purpose
Plato (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).
Law: Its Function and Purpose
Plato (cont.)
• The state is virtuous
• Only through the state can citizenry behavior be
regulated
• Favored “philosopher king”
Law: Its Function and Purpose
Aristotle (384-322 BCE)
• 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
Law: Its Function and Purpose
Aristotle (cont.)
• 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).
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 Purpose
Thomas Hobbes (1588-1679; Leviathan)
• 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
Law: Its Function and Purpose
Thomas Hobbes (cont.)
• 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).
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
– Glorious (English) Revolution of 1688
– American Revolution of 1776
– French Revolution of 1789 (Lavine 1989)
Law: Its Function and Purpose
John Locke (cont.)
• 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?
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 them 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 (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 Purpose
Sociological Perspective of Law
• Max Weber
• Émile Durkheim
Law: Its Function and Purpose
Max Weber (1864-1920; Economy and
Society)
• 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
Law: Its Function and Purpose
Max Weber (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 Purpose
Max Weber (cont.)
Four-fold typology of legal decision making based
on rationality, irrationality and formal and
substantive procedures
Law: Its Function and Purpose
Weber’s Four-Fold Typology of Legal Decision Making
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 Purpose
Weber’s Four-Fold Typology of Legal Decision Making
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 Four-Fold Typology of Legal Decision Making
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 Purpose
Weber’s Four-Fold Typology of Legal Decision Making
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
Irrational
Rational
Substantive
Decisions made subjectively
by non-legally trained
individuals on a case-by case
basis.
Decisions made on a caseby-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.
Law: Its Function and Purpose
Émile 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 felt an emotional
sense of belonging to others and to a group
Law: Its Function and Purpose
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
Law: Its Function and Purpose
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
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 created harsh penalties, or
retributive or repressive justice
• Organic solidarity created 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 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
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 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
Law: Its Function and Purpose
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
Law: Its Function and Purpose
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
Law: Its Function and Purpose
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
Law: Its Function and Purpose
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.
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).