Intro to law and justice ch 1 ppt

Law, Justice, and Society:Law, Justice, and Society:A Sociolegal IntroductionA Sociolegal Introduction

Chapter 1

Law: Its Function and Purpose

Law: Its Function and PurposeLaw: 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?


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


• 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


• 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


• 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


• 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


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.)


• 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


• 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


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)


• 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


Legal Philosophers and Scholars• Hammurabi• Plato• Aristotle• Thomas Hobbes

• John Locke • John Rawls


• 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


• 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.)

Law: Its Function and NatureLaw: 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)


• 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.)


• 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)


• 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)


• 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)


• 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)


Sociological Perspective of Law• Max Weber• Emile Durkheim


• 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)


• 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.)


• 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


• 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


Formal Irrationality


• 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


Substantive 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


Formal Rationality


• 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)


• 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


• 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.)


Two Opposing Perspectives:

Conflict and Consensus


• 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


• 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


• 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.)


• 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


• 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.)


• 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.)


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.

Intro to law and justice ch 1 ppt

Law

Transcript of Intro to law and justice ch 1 ppt