Law and Social Exam one

Quinney

Argues that law in capitalist society gives political recognition to powerful social and economic interests. The state and the legal system serve the needs of the ruling class.

Critical Race Theory—what is the concern of CRT and the basic premise.

Concern with questions of discrimination, oppression, difference, equality and the lack of diversity in the legal profession. Basic premise is that persons of color in the United States are oppressed and being oppressed creates fundamental disadvantages for those who are so treated.

Feminist Legal Theory—What is it concerned with?;.

Concerned with issues that are central to a broader intellectual and political feminist movement, sex-based equality at the work place, reproductive rights, domestic violence, sexual harassment and rape.

Formal Rationality:

Consistent, logical rules as in modern American or Western law.

Particular attention should be given to sections-- Eugen Ehrlich and I.D. Willock's positions, difficulty between sociologists and lawyers, how legal thinking differs from scientific thinking.

Difficulty between sociologist and lawyers. The study of law by sociologist is hampered by difficulties of interactions between sociologist and lawyers.

Mechanical solidarity is associated with Repressive and Penal Law.

In a homogeneous, undifferentiated society, a criminal act offends the collective conscience, and punishment is meant to protect and preserve social solidarity. Punishment is a mechanical reaction. The deviant is punish as an example that this behavior is not tolerated. There is no concern with the rehabilitation of the offender.

Rational procedures

involve the use of logic and scientific methods to attain specific objectives.

Administrative law

is a body of law created by administrative agencies in the from of regulations, orders and decisions.

organic solidarity:

is characteristic of modern societies that are heterogeneous and differentiated by a complex divisions of labor. In a contemporary heterogeneous societies, Repressive Law tends to give way to Restitutive law with emphasis on compensation. Punishment deals with restitution and reparations for harm done to the victim

Private law

is concerned with both substantive and procedural rules governing relationships between individuals.(ex: the law of torts or private injuries, contracts, property, wills, inheritance, marriage, divorce, adoption and the like).

Criminal law .

is concerned with the definition of crime and the prosecution and penal treatment of offenders. It is the state, not the harmed individual , that takes action against the offender

Public law

is concerned with the structure of government, the duties and powers of officials, and the relationship between the individual and the state (ex: constitutional law, administrative law, regulation of public utilities, criminal law).

Case law

is enacted by judges in cases that are decided in the appellate courts.

Statutory law

is legislated law -law made by legislatures.

The paramount function of law :

is to regulate and constrain the behavior of individuals in their relationships with one another when other formal or informal methods of social control fail to operate or are inadequate for the job.

Modern Legal Systems—basic characteristics:

it's a more complex subsystems. Courts, in modern legal system, have an important role in mediating and mitigating conflict, disputes, deviance, and other sources of malintegration. The roles of lawyers and judges become highly professionalized, with licensing requirements and sanctions.

Emile Durkheim—He was born in France. Professor of sociology. .

know all of this section, two types of solidarity and type of law most associated with each type and why, Durkheim's position. Founder of first social science journal" L'Annee Sociologique".

Sociolegal Theorists Dicey—

know his major contribution to the understanding of law and society; Most crucial contribution to law and society is te recognition of the importance of public opinion in legal development.

Irrational procedures

rely on ethical or mystical considerations such as magic or faith in the supernatural.

Customary

rules of conduct are called usages, and there is no sense of duty or obligation to follow them.

Dispute settlement:

settling disputes through an authoritative allocation of legal rights and obligations.

Substantive law . ).

takes the circumstances of individual cases into consideration along with the prevailing notion of justice

Basic assumptions:

that social behavior can best be understood in terms of tension and conflict between groups and individuals. Struggles over scarce commodities take place. The idea of conflict in society is the Marxism notion of economic determination. The ruling class and those that rule. The ruling class that owns the means of productions and a subservient class that works for wages

Four styles of law: penal, compensatory, therapeutic, and conciliatory. 1. Penal style :

the deviant is viewed as a violator of a prohibition and an offender to be subjected to condemnation and punishment. (Ex: Drug Pusher).

:3. Therapeutic style: .

the deviant's conduct is defined as abnormal, the person needs help, such as treatment by a psychiatrist

Chambliss/vagrancy laws example:

use "to force laborers to accept employment at a low wage in order to insure the landowner an adequate supply of labor at a price he could afford to pay. Use to serve the interests of the wealthy. (ex: Agricultural states enforced vagrancy laws during harvest time to push the poor into farm work.

Types of Law

—know all the italicized definitions of types of law; substantive/procedural, public/private, civil/criminal, torts, civil law/common law, branches of law in the US—constitutional, case, statutory, executive, and administrative.

Latent functions:

are , by contrast, unintentional and often unrecognized. They are unanticipated consequences of a system that has been set up to achieve other ends.

Functions of Law: Social control:

are explicit rules of conduct. Norms

Executive orders

are regulations issued by the executive branch of the government at the federal and state levels.

Procedural laws

are rules concerning just how substantive laws are to be administered, enforced, changed, and used by players in the legal system. Ex; such as filing, charges, selecting a jury, presenting evidence in court, or drawing up a will).

Customs

are rules of conduct in defined situations that are of relatively long duration and are generally observed without deliberation and "without thinking".

Manifest function:

are those that are built into a social system by design. They are well understood by group members.

Chambliss & Seidman

argues that "the state becomes a weapon of a particular class

Social change:

as per Pound, a social institution to satisfy social wants.

Civil law

as private law consists of a body of rules and procedures intended to govern the conduct of individuals in their relationships with others. Violations of civil statutes , called torts are private wrongs for which the injured individual may seek redress in the courts for the harm he or she experienced. Some sort of payment is required from the offended to compensate for the injury he or she has caused.

Substantive Rationality:

based on the application of rules from non-legal sources. (ex: Ayatollah Khomeini in Iran decisions based on Koran)

Conflict/Marxist Approach—.."

basic assumptions, What do Quinney and Chambliss & Seidman say about law; C.Ray Jeffrey;

Conventions,

by contrasts are rules for conduct and they involve a sense of duty and obligation. Pressures, which usually include expressions of disapproval, are exerted on individuals who do not conform to conventions. The two issues are: he places to mush emphasis on coercion and ignores other consideration that may induce individuals to obey the law. Ex: many laws are obeyed because people feel it is their duty to obey. Second, use of special staff.

Substantive Irrationality:

case is decided on religious, ethical, emotional or political bases instead of general rules. (ex: a religious judge decision

Contemporary Law and Society Theorists Know Donald Black's basic ideas and conclusions—he is really important

. He is a professional of the social sciences at Harvard University. He went to law school. He considers law "governmental social control". It makes use of legislation, litigation, adjudication. Donald's conclusions: the quality of law varies directly with stratification rank, integration, culture, organization and respectability and inversely with other forms of social control. (ex. Stratified societies have more law than simple ones, wealthy people have more law among themselves than poor people.

Three predominant themes:

1. Women's struggle with equality in a male dominant legal profession and in the broader society. 2. Feminist legal scholarship. The argument of male bias is extended to include practically every feature of law. 3. Challenges the very concepts law invokes to support its contention that it is a just and fair institution.

Hoebel—his approach and what does he see as the trend in law—really are trends in law—know in general changes, divergences etc.?????????????

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Classical Sociological Theorists—(don't forget you have lecture material that enhances these sections) Karl Marx, know all of this section--his basic thinking about society and basis for society (mode of production and its elements) what is law according to Marx and what are his three principle assumptions.

Born in Germany, middle class family. Marx and his ideology of Marxism may have caused more social change than any other force in the modern world, both in developed and developing societies. Marx postulates that every society, whatever its stage of historical development, rests on an economic foundation. He calls this "mode of production" of commodities. It has two elements 1. the physical or technological arrangement of economic activity. 2. social relations of productions or the indispensable human attachments that people must form with one another when engaged in economic activity. Marx theory of law 3 principal: 1. Law is a product of evolving economic forces. 2. Law is a tool used by a ruling class to maintain its power over the lower classes and 3. In the communist society of the future, law as an instrument of social control will "wither away" and finally disappear.

Common-law system:

English speaking countries. Is characteristic of the English system, which develop after the Norman Conquest in 1066.The law of England and the English law such a the laws of the United States, Canada, Ireland and India who resisted codification.. Thus, it is judge made law as distinguished from legislation or enacted law.

—Romano-Germanic system:

Europe - France, Germany, Italy, Spain, Portugal, and Belgium. Romano-Germanic or civil law refers to legal science that has developed on the basis of Roman or civil law. Rules made in the sixth century under the Roman Emperor Justinian. They have a codified system based on blend of customary and Roman law.

Herbert Spencer know his basic ideas on law and human progress and what his work did for does for theory of unregulated economic competition, laissez faire capitalism, second stage of human progress law increases in liberty etc. His view on attempts to achieve greater socio-economic equality between peoples.

He believed that there not be any governmental programs designed to alleviate the plight of the economically weaker groups in society.

Donald Black, def of law and what he says about it being the normative life of.....also know his styles of law; paramount function of law, how law can be distinguished from other forms of social control.

He contends that law is essentially governmental social control.. He state law is "the normative life of a state and its citizens, such as legislation, litigation, and adjudication"

Schur's conclusion about lawyers and sociologists. Legal thinking, how different from scientific thinking?

He states that lawyers and sociologists "don't talk the same language" causing problems in the others domain. Lawyers characteristic needs to make decisions, sociologist unlimited willingness to suspend final judgment on the issue.

Holmes—know he was Supreme Court Judge who also helped found school of legal realism and what that means, how he was connected historically to Darwinism and how that played out in his ideas and goals as a judge, Path of the Law. .

He was born in Boston, became supreme court judge for 30 years. Oliver Wendell founder of the "legal realism " school, where judges are responsible for formulating law, rather them merely finding it in law books

Max Weber—know all of this section, central position among law and society theorists, know his typology based on (and know) Rational/Irrational, Formal/Substantive, importance of rationalization: .

He was born in Germany, and became a professor of economics. Weber played a crucial role in the development of contemporary sociology. He occupies a central position among law and society theorists and remains among the most influential social thinkers of our time. Legal system is base on two fundamental distinctions, 1. Legal procedure are rational or irrational.

Sumner Maine—his contributions and oft quoted dictum and what it means.

His dictum "the movement of the progressive societies has hitherto been a movement from status to contract"

Know basic notions of evolution concerning law; developmental models -how common why used, basically what do they say;

Informal mechanisms of social control such as shaming and open disapproval can work in small, homogeneous, face to face communities. In modern, heterogeneous, and complex society with high division of labor, formal norms and sanctions are necessary to control behavior so that society can continue to function.

How law can be distinguished from other forms of social control?

It is a formal system embodying explicit rules of conduct, the planned use of sanctions to ensure compliance with the rules and a group of authorized officials designated to interpret the rules and apply sanctions to violators.

What is sociology of law concerned with?

It is concerned with values, interaction patterns, and ideologies that under lie the basic structural arrangement in a society. Rules that prescribe the appropriate behavior for people in a given situation.

what is Sociological Jurisprudence?

It is the study of law and legal philosophy and the use of its ideas in law to regulate conduct. It is law in action according to "Roscoe Pound".

Major Legal Systems

Know definitions and most basic characteristics of Romano-Germanic, common, socialist and Islamic—again, know the basic characteristics/principles and origins of each and italicized concepts in each section (no need for memorizing dates but you should know general chronology).

Chapter Two Evolution of law/legal systems—when does law emerge?

Law emerges when the social structure of a given society becomes so complex that regulatory mechanisms and method of dispute settlement no longer can be dependent on.

Definitions/Conceptualizations of Law—Max Weber, def and how law is distinguished from other forms of normative orders (custom and convention and law, three basic features, two issues with Weber's definition what are they specifically,

Law has three basic features: 1. Pressures to comply with the law must come externally in the form of actions or threats of actions by others. 2. These external actions or threats always involve coercion or force. 3.Those who instrument the coercive threats are individuals whose official role is to enforce the law.

Functionalist Approach—

Manifest and latent functions, basic tenets of functionalism; Major criticisms of this approach.

Islamic legal system:

Middle Eastern countries .Law is integral to Islamic religion, which defines the character of the social order of the faithful who create laws in the name of God. Islan menas submission or surrender and implies that individuals should submit to the will of God. Islamic law id derived from four sources. 1) the Koran, the word of God as given to the Prophet. 2). Sunna, which are the sayings, acts, and allowances of the Prophet . 3). Judicial consensus, of qualified legal scholars 4). Analogical reasoning, not provided for in the Koran or other sources.

Positive Law; Montesquieu (know what he challenged and his central thesis from Spirit of Laws;

Montesquieu challenges the underlying assumptions of natural law by presenting a radically different conceptualization of law and society. The central thesis of his spirit of laws, is that laws are the result of a number of factors in society such as customs, physical environment, and antecedents.

Theories of Law and Society—Why did changes in legal systems take place? And what factors contributed to legal development historically speaking?

Natural law—define and what is it based on and what does it reflect? (see lecture notes on ecollege for more elaboration of natural and positive law).

Functions of Law and Dysfunctions of Law—know them and understand them /recognize through examples.

Paradigms/Perspectives—two conceptions of society (also know critical perspective from lecture) --Functionalist/Consensus (much more on these in Chapter 2 and lecture) know functions and dysfunctions of law (what does Donald Black say about law and discrimination); Conflict/Marxist perspectives—know basic ideas/and the way each perspective views society and law. What does Dahrendorf say? Know what Pound and Quinney say about law. Chambliss/vagrancy laws example. Two perspectives as ideal types. Don't' forget your lecture notes on perspectives and don't forget the lecture notes on-line with the discussion of positive and natural law as general approaches to understanding law and legal issues.

Formal irrationality:

Rules based on supernatural forces. (ex: the ten commandments).

Basic tenets of functionalism: 1.

Society must be analyzed "holistically as system of interrelated parts". 2. Cause and effect relations are "multiple and reciprocal". 3. Social systems are in a state of "dynamic equilibrium" such that adjustment to forces affecting the system is made with minimal change within the system. 4. Perfect integration is never attained so that every social system has strains and deviations, but the latter tend to be neutralized through institutionalization. 5. Change is fundamentally a slow adaptive process, rather than a revolutionary shift. 6,. Change is the consequence of the adjustment of changes outside the system, growth by differentiation, and internal innovations. 7. The system is integrated through shared values.

Dysfunctions of law:

Status quo is stabilized and perpetuated in a legal system and the courts are the instruments of a legal system. Status quo are the way things are and the courts are in place to enforce the laws.

Primitive legal systems (hunting and gathering and simple agrarian) functions of law in primitive and advanced societies, basic characteristics of law and systems and what is law in these societies and what are functions of law in these societies.

The function of law in primitive societies are essentially the same as those in more advanced societies. The laws preserve important cultural elements, coordinate interaction, settle disputes, check deviance. There is no well developed subsystems, and the polity is composed of kin leaders, councils of elders or chiefs and various religious leaders.

Transitional legal systems (advanced agrarian and early industrial) basic characteristics:

The legal subsystems become more complex and extensive as communities grow and encounter more problems.

Overview—know basic ideas put forth in this section. Know how nature of law differs across the world—third world (traditional) vs' advanced nations, "The Mystery of Capital" 'paperized', law as an indicator of a society's development and connection to interests, goals etc.;

The mystery of capital: 80% of poor people in the developing world cannot identify who owns what, the notion of holding title to property is limited, primarily to a few elites. Their assets are pauperized in the formal documents.

2. Compensatory style:

a person is considered t o have a contractual obligation and, therefore, owes the victim restitution. (ex: a debtor failing to pay the creditor). Both of these styles are accusatory where there is a complainant and a defendant, a winner and a loser.

Conflict perspectives (Marxist):

considers law as a "weapon in social conflict" and an instrument of oppression "employed by the ruling classes for their own benefit". (Believe that law is a tool by which the ruling class exercises its control).

Paradigms of society: Consensus perspectives:

considers law as a neutral framework for maintaining societal integration. (the purpose of law is to control interests and to maintain harmony and social integration as per Roscoe Pound).

Substantive laws

consist of rights, duties, and prohibitions administered by courts - which behaviors are to be allowed and which are prohibited (ex: murder and sale of narcotics)

Constitutional law

consist of the application of fundamental principles of law lased on that documents interpreted by the Supreme Court.

Branches of law in the US—

constitutional, case, statutory, executive, and administrative.

C. Ray Jeffrey:

contends that acts such as murder, theft, trespassing, and robbery - problems that were once resolved in the kinship group-became crimes against the state when Henry II, king of England, centralized political power and declared them wrongs against the crown.

4. Conciliatory style:

deviant behavior represent one side of a social conflict in need of a resolution without consideration as to who is right and who is wrong. (ex: marital disputes). These last two styles are remedial, designed to help people in trouble and ameliorate a bad social situation.

Two types of solidarity:

mechanical solidarity: prevails in relatively simple homogeneous societies where unity is ensured by close interpersonal ties, similarity of habits, ideas, and attitudes

Socialist legal system:

people's republic of China, Vietnam, Cuba and North Korea. Expression of popular will as perceived and interpreted by the Communist party.

Formal Law

refers to making decisions on the basis of establishing rules regardless of the notion of fairness