Law and Society Midterm Unit 1

Kidder - origins of law: custom

"...customs are taught by one generation to the next..." Custom... depicts people as programmed carriers of demonstrably irrational cultural lessons which restrain their ability and willingness to adopt 'progressive' changes."

Bohannon Definition of law

"Laws are customs that have been created—or reinstitutionalized—in institutions that are legal in character and distinct from all others."

Sumner

"Lawways cannot change folkways." Any law that conflicts with custom is doomed to fail (at least in the long run). customs more powerful... law < custom

Holmes

"The law embodies the story of a nation's development." Homes sociolegal approach views the law's development as being contigent on what a discordant society, at any given point in time, determines to be its most pressing political and economic needs and interests. refutes law as being linked to moral standards and that law is derived through logic and legal rules can be worked out like mathematics from some general axioms of conduct

Austin Turk

( a conflict theorist) calls the consensus perspective a moral functionalist perspective because it sees law as reflecting a shared morality and it sees law as being functional or beneficial to society.

Durkheim - Restitutive Law

(or cooperative) law was more common in advanced and complex societies, which have large, heterogeneous populations, and a complex division of labor. In complex societies, greater specialization produces functional interdependence among members of society. People don't share common experiences because of specialization and interdependence, no common customs/norms, so in these types of societies, social order is maintained through organic solidarity

Durkheim - Repressive Law

(or punitive law): more common in primitive societies in which groups are small, homogenous, and have a low degree of division of labor. mechanical law

Rationalism and the Enlightenment

18th &19th Century Enlightenment thought turned away from tradition and religion and toward a focus on reason, logic, and science. Law becomes secularized, or disconnected from religious sources of authority. source of all human misery is ignorance/superstition

Sociological Challenges to Legal Formalism

1900-1930s: Push back against against legal formalism in favor of Sociological Jurisprudence (Pound) or American Legal Realism (Holmes & Llewellyn) Holmes, Pound, & Llewellyn's (HPL) collective efforts called "sociological movement in law" HPL argued for replacing legal formalism with alternative legal philosophies that were "predictive, pragmatic, and positivistic" (pp. 55) Based on empirical sociological observations Practical and action-oriented in application Legal Formalism → the law is neutral. Law is like a slot machine. "Each case falls within a rule. The facts are simply put into the appropriate slot; the judge pulls the lever and the 'logically compelled' decision comes out." Morris on pages 64& 65 of Trevino Sociologist → whoa, no. it isn't neutral because it's designed and experienced by people. The law is not neutral.

Functionalism

A school of structuralism that sees existing social conditions as serving a useful and beneficial role in society. Functionalists are a particular breed of structuralists who see existing social conditions as serving a useful and beneficial role in society - durkheim

Second view of conflict

A second view of conflict sees legal conflicts as primarily being fights about beliefs, values, and customs. In these conflicts, dominant groups use law to force their beliefs, values and customs onto less powerful groups. Problem for conflict theorists, esp. material: some laws seem to be in conflict w ruling class. Cultural conflict theorists have a better way of experiencing this than the material ones.

Conflict Theory and Marxism

According to Marx, legal institutions were created to protect and reproduce capitalist relations (NOT to promote social solidarity and cohesion). Difference between strcuturalist - emphasis on conflict rather than consensus. Example: property law - protects private property/fruits of labor, from economic base of capitalism.

Cultural Model: Bronislaw Malinowski

Anthropologist who studied cultures that lacked the structures of modern states. People organized their lives in these cultures according to implicit rules of behavior accepted—and reinforced—by everyone. consisting of widely practiced behavior example of ppl waiting in line

Extreme position among culturalists:

Any law that conflicts with custom is doomed to fail (at least in the long run). Graham Sumner: "law-ways cannot change folk-ways"

Durkheim 2

As population increases → need for coordination increases Two types of societies (primitive and modern); two types of laws (repressive, restitutive) To understand legal development structuralists may study: Population size Role structure (e.g. simplex vs. multiplex) Property rights Structuralists see custom as less relevant to law (p.64) Durkheim - as population grew, existing resources and ways of using them became inadquate. Land became scarce, food and water couldn't keep pace. To compensate, people began to specialize. This created the division of labor As populations' need for coordination increases, the demand for law in place of custom will also increase in order to coordinate the populous (p. 65)

Structuralist Population Size

As populations grow, interactions between individual members become more complicated and more anonymous. An increase in population size increases potential for conflict, which means a greater need for coordination & conflict resolution A structuralist might predict that more population leads to more complex legal systems.

Conflict Theory: Turk

Austin Turk criticizes the assumption that everyone agrees to the rules that govern society. We have law precisely because people don't agree. Turk identifies five ways that law enhances a dominant group's power. Consensus perspective ignores law and power.

Cultural Lag Theory (Bohannon)

Bohannon acknowledges that law is sometimes out of step with culture. He attributes this to a time lag between when something is institutionalized as custom and when it is reinstitutionalized as law. "Cultural lag" theory: The process of double institutionalization takes time. Legal institutions need to: Recognize cultural changes Come to agreement about their desirability Mesh them with pre-existing legal rules And communicate them throughout the law.

Kidder (1983): Custom & Law?

Bohannon's argument: Law = ritualized custom that takes place in legal institutions. "cultural lag" (laws can't keep up!) Kidder's examples of the relationship between custom & law: Prohibition Mormon Polygamy Speeding

Consensus v. Conflict Perspectives

Both the cultural and structural models see law as: a mechanism for integrating people's activities so they can live in harmony socially beneficial a product of collective consensus Clarify shared norms, expectations, arriving at a consensus in problem situations where custom is ambiguous/unclear Structuralists argue that law let us regulate our coordinated activities, regulate our points of friction, so society can operate smoothly. Allows us to each do a different task, exhibit different skills, without pitting us against each other. Individual interests protected for collective good. Both see law as bringing society together. Laws reflect what is appropriate and good for society. The conflict perspective (a.k.a. critical perspective) disagrees with the claim that law is neutral or objective, and beneficial to everyone. Sees law as being linked to social struggles over who gets to define society's cultural values and who gets to benefit from society's material wealth. Challenge to claim that law is neutral and objective. Conflict theorists see law as inherently political - linked to social struggles over who gets to define society's values, who gets to benefit from society's material wealth.

Chambliss Conflict Theory Take Away

By tying the changes in vagrancy statutes to the changing structure of society, Chambliss argues that the laws served the interests of the ruling class.

Conflict Theory: Chambliss

Chambliss argues that these new vagrancy statutes emerged as a result of changes in other parts of the social structure. new market economy the Black plague B4 plague, landowners depended on surfs to maintain their land. Bound to their landowners by feudalism, landowners protected surfs. Surfs started to want freedom, wanted to seek employment in towns. Then plague hits. Plague of 1340s killed half of England's population. Work force decimated. Wages go up. Chambliss argues the new vagrancy statutes in 1349 were designed to prevent serfs from fleeing their feudal obligations to landowners and to force even free laborers to accept employment at a low pre-plague wage. Prohibited travel to other towns for employment. Made workers accept a set low wage. Criminalizing any other means of survival. Reinforce ideas of feudalism when there was an acute shortage of labor. Way for ruling class to enforce its interests on the subordinate class. A second change in the statute occurred around the middle of the 16th century, when the statutes began to focus on criminal activities. New definition of "vagrant" included those who could not explain how they made a living, whether or not they were actually begging (i.e., if you have no visible means of support, you must be a thief). Chambliss again connects the statutory change to changes in the social structure: The concern of the new merchant class wasn't in enforcing land labor, but in protecting the transport of commercial goods from robbery. Ruling class no longer land owners, new merchant class - new concerns were no longer enforcing land labor, but transporting goods from one place to another. Change in vagrancy statutes -> change in society. Not focusing on harmony of society as a whole (structuralist), focusing on interests on ruling class. School of thought - material conflict. Chambliss - material conflict theory. Conflicts over how we distribute wealth, material rewards, healthcare etc.

Common Law Reasoning

Common law reasoning involves identifying common principles in cases involving very different factual scenarios. - find a common principle and apply it from one system to the next. The United States legal system today has elements of both the civil and common law traditions. - written, statutory law. civil + common law = means of systematizing law

Structural Model Conflict Resolution

Conflict Resolution: Law provides society with a way of resolving conflict E.g. Courts, mediation Law meets this need by solving disputes before they disrupt society

Conflict Perspective

Conflict theorists view law as operating to promote the interests of dominant social groups at the expense of oppressed or subordinate social groups. Law is not neutral or objective and beneficial to everyone; rather law operates to promote the interests of dominant classes or social groups at the expense of oppressed classes or social groups.

Paradigm #2: Sociological Jurisprudence - Roscoe Pound

Considered legal formalism impractical & irrelevant e.g. legal formalism understates the role of judges' biases, ignorance, and possible corruption in determining legal outcomes Regarded law as an institution of social control with the goal of preserving "civilized" society's interests. Laws should produce "just" outcomes and serve "social interests." Legal scholars should study effect of laws; judges should consider socioeconomic data. To make good law you need to know the social context. US becoming increasingly urbanized at this time (first quarter of 20th c); result of massive immigration and industrialization; rapid social change triggered by enormous economic growth → immense social problems "characterizd by new and sharper levels of tension and conflict: poor working conditions in factors, political corruption, crowded city slums, the growth of impoverished masses, the cartelization of American economy" (pp. 63)

Rationalization of law (making it more predictable, systematic) took different courses in Continental Europe than in England and the United States:

Continental Europe Civil Law Tradition (make a written law for everything) written rule for everything in a legal code. England and U.S. - Common Law Tradition (Judge made law, case by case judges in a series of precedents) based on underlying principles - apply the principle to the case

Structural Model Coordination

Coordination: Law provides society with a way of coordinating people & production in a complex social system. E.g., traffic laws, contract laws Every society has to have a way of coordinating all of the people and activities in a complex social system. Law helps coordinate activities of moving people from one place to another.

Conflict Model Theorists

Cultural Theorists: Fights over beliefs and customs (gabe and feinman) Material Conflict: (chambliss) Fights over society's productive activities, wealth and other activities.

METATHEORETICAL MODELS REGARDING THE RELATIONSHIP BETWEEN LAW & SOCIETY (why do we have law?)

Cultural model, Structuralist Model, Conflict Model - lenses that effect what people see when they look at law

Cultural vs. Structural Models

Cultural models view that the only constraint on law is that it has to coincide with society's customs - customs change, laws can change. Structural models more look at "in order to survive, all societies must have a way of resolving conflict.." less malleable because needs don't change that much What people believe is secondary to material production - what society neeeeeds. Structural view - law exists because it helps society get its work done. Structuralists agree that laws derive because of material needs in society Cultural Models See law as malleable Emphasizes beliefs Structural Models See law as more deterministic Emphasizes material resources & distribution

cultural model - what if law and custom disagree? which will people follow?

Custom

Malinowski

Customs = Laws Law is... "a body of binding obligations... kept in force by reciprocity and publicity inherent in the structure of society."

Why re-institutionalize? Why isn't custom good enough?

Customs often need to be reinstated to extend to new situations - texting and driving Customs can conflict in complex societies -polygamy, french ban on headscarves Custom can be ambiguous - doesn't cover al contexts/ situations, reading example: borrowing the horse

Bohannon, Legal Institutions

Difference between law and custom is that law takes place in legal institutions that are separate from other social institutions. Legal institutions take disputes out of nonlegal life, resolve them according to specialized legal rules, and then put the resolution back into the nonlegal realm. Legal institutions: Specialized social structures That provide a regularized way of dealing with problem situations That arise in connection with the workings of other social institutions.

Paradigm #3 - American Legal Realism -Karl Llewellyn

Distinguished between "paper rules" versus "real rules" Law = what legal officials do about legal disputes To understand the law, we need to empirically study the social behavior of judges, lawyers, defendants, and plaintiffs Law as a "social institution" (consider its cultural values, social practices, and socialization techniques) - law is socially constructed and serves a social function - social control,

Legal Analysis Paradigm #1: Legal Formalism

Dominant from late 1800s to 1940s Law = fixed, complete, morally neutral principles from which judges logically deduce case outcomes "slot machine jurisprudence" (pp. 64) "mathematical theorem" social & economic data were not considered, focused on abstract principles Sociological thinkers later pointed out... law served mercantile and entrepreneurial interests social function of the law (i.e promoting the free market) hidden behind neutral facade "The best manner of hiding the fact that the law promoted and legitimated economic self-interest, cutthroat competition, and similar essential practices of a liberal, market oriented society was by creating a system of law that gave the appearance of being self-contained, apolitical, and made legal reasoning seem like mathematics" (pp. 58) legal formalism as "slot-machine jurisprudence" (pp. 64); law as machine > social process "... judges derive legal rules from abstract principles, then mechanically apply those rules, through logical and deductive reasoning, in deciding the outcome of a case" (pp. 58)

Structural model

Durkheim & Simmel in Kidder; Schwartz

Durkheim

Durkheim viewed law as serving a particular need of society: promoting and preserving social cohesion. Argued there are two types of laws, and they correspond to different levels of social structure and social development. - law serves a particular function for society: promoting and preserving social cohesion Social structure (i.e. the size of society, the degree of diversity in experiences, the degree of specialization) determines law

Structural/functional imperatives

Examples of ways in which law helps society meets functional imperatives: coordination, conflict resolution, social control

Conflict Theory: Hegemony

Hegemony refers to the ability of certain dominant ideas and practices to structure social life so thoroughly and so fundamentally that they hide or invalidate the possibility of alternative forms of social organization. Property law etc have aspects that are taking for granted and it's like we can't think of doing it in any different way. When an ideology is hegemonic, we take it for granted, can't think of doing something another way, and there is power in that. Hegemony helps explain why subordinate groups seems to consent to being controlled and exploited by dominant groups. The idea is that members of subordinate groups can't imagine that life could be run any differently. "it's just the way it is" ideology - set of ideas, hegemony - particular set of ideas that have structured our lives so completely we cannot imagine things being any other way

Conflict Theory: Ideology

Ideology is a set of cultural values and beliefs that affect political and social behavior by shaping how people understand their interests, obligations, and their identities. To claim that law exerts an ideological effect, is to argue that something about the law makes it more likely they will adopt certain world views, political postures, and behavior rather than others. E.g., Surrogate motherhood Something about the law influences the likelihood that people will adopt a position or ascribe to one behavior over another. Surrogate motherhood - support it or demonize it? One view is that it's a service contract - infertile couple willing to pay for a baby, in exchange a woman gives birth to them. Freedom of contract + human behavior. Baby selling? Seems more problematic. Seems to violate principle that ppl should not be bought and sold. Underlying behavior is the same. But part of how we deem it acceptable or not is the legal ideas we ascribe to it.

Structural Model Property Ownership

Is property held privately or collectively? Private property: creates possessions that people need to protect from one another gives people privacy (which means less communication of expectations) makes people less dependent on the community (fewer levers for informal social control). A structuralist might predict that societies with private property will have more elaborate legal regimes than societies with collective property

Llewellyn's Six Tenant of Legal Realism

Judicial decision-making involved in making laws Jurists involved in implementing laws that help society achieve ends Jurists ensure that law keeps pace with social changes Jurists put aside what "ought to be" (moral) so they can deal with what "is" (realist) Paper rules of legal formalism do not reflect court's real rules or predict court's outcome Paper rules do not determine court's outcome

Schwartz Kibbutz v. Moshav

Kibbutz - more collective social organization. No private property, limited privacy etc. lots of opportunities for surveillance in this community - social observation, many opportunities for social interaction, and thus many opportunities for social control. No need for formal legal system because informal means fit this community's needs. Moshav - members have much more autonomy. Fewer day to day/ face to face interactions/common activities, fewer opportunities for informal social control. Less surveillance. In absence of tools for informal social control, moshav needed formal legal system.

Pound's Theory of Social Interests

Law = recognition of a group's collective protection of prevalent claims, desires, demands, or expectations "... a right is a legally protected social interest" (pp. 66) Social interests = predominant claims that people want satisfied and that society must legally protect (pp.74) Types of social interests: general security, security of social institutions, general morals, conservation of social resources, general progress, individual life

Conflict Theory Law mystifies and distorts existing social relations.

Law can misrepresent social reality in ways that make it harder for subordinate classes to formulate a competing model for how social life should be organized. E.g., System of individual rights Legal system based on idea of individual rights, individual lawsuits, individual remedy. This system prevents people from seeing their problems as collective grievances and taking collective action against them.

Turk - cultural or ideological power

Law gives the dominant group cultural or ideological power. Law provides frames of reference that tell us how to think about the world. Examples: private property, contracts, citizenship Makes these laws seem normal and natural. Idea that citizens have more civil liberties than non-citizens, idea that seems natural, normal.

Turk - economic power

Law gives the dominant group economic power. Law can enhance or erode people's economic power by affecting how material rewards get distributed throughout the social system. Examples: tax laws and bankruptcy laws Bankruptcy laws determine who can get out of their debt, congress made it harder to get out from under credit card debt, change serves the interest of big banks who benefit from having credit card debt maintained

Turk -political power

Law gives the dominant group political power. Law can affect people's political power by giving elites control over the decisionmaking process. Examples: congressional districts and voting restrictions Gerrymandering. - making sure certain social groups, african americans, latinos, fall outside of certain geographical areas, making sure certain people stay in power and get elected. Voter ID laws. These laws have the effect of preserving the power of certain political parties, certain political officials.

Agreement across all three theorists...

Law is a social product (e.g. historically specific) Law is made to appear as "natural" and "neutral" (but it's not) That's really it. On almost every other point, critical theorists charge their opponents with naiveté

Legal Formalism Essential Principles

Law is an autonomous system, separate from politics Based on general principles That are accessible to reason And that enable judges to reach uniform and definitive decisions in contested cases. Supposed to be seen as politically neutral law = abstract legal positions applied through interpretation

Austin Turk law definition

Law is... ... a mechanism that powerful groups use to secure dominance of their interests in the face of disagreement or opposition

Conflict Model, Kidder

Law is... developed by elites to establish and maintain dominance over other classes (rather than restore balance)

All structuralists view the law as reflecting and supporting society's efforts to meet the material challenges of day-to-day survival.

Law is... reflecting and supporting society's efforts to meet everyday, material challenges (e.g. coordination, conflict resolution, social control) Social body is like the human body, everything is there to make it work. law is like an organ

Turk - diversionary power

Law offers a forum for addressing one's grievances—file a claim in court. But in doing so, law may distract attention from other ways of addressing grievances that might be more effective. E.g., Collective protest Provides the idea that law is the best way to solve a problem, when in reality something like a strike might better solve specific problem.

a. Natural Law Tradition

Law ought to be rooted in rules that are intrinsic to human behavior - or laws of nature. Unchangeable laws of nature, certain moral attitudes present in all societies. human law should be based on laws of nature. Natural law takes a moralist approach to seeing the world. It sees some things as inherently right or wrong, often from a religious perspective. i.e. murder is wrong because god says so. declaration of independent

Conflict Theory The law constructs and reinforces hegemonic social forms.

Law provides key categories and ground rules that become the basis for entire taken-for-granted systems of social relations. E.g., private property, labor contracts, the corporation

Structural Model Social Control

Law provides society with a way of making sure that people don't do things that go against the common good. E.g., drunk driving laws Drunk driving laws are intended to punish ppl who insist on drinking and driving, thus putting others at risk for harm. Law can be an effective way to meet these needs of society, but not the only means

Bohannon

Laws are... "customs that have been created—or reinstitutionalized —in institutions that are legal in character and distinct from all others." Law is produced and related to custom, but not equivalent

Conflict Theory Law legitimates the exercise of elite power.

Laws must be arrived at by seemingly fair procedures, so when something is "the law" it seems to carry public support. E.g., Labor injunctions Hard for ppl to disobey law without looking disrespectful to democratic authority. No difference really between employers hiring thugs to beat up strikers vs. the law that made striking illegal - same effect, just that law seems legitimate

Marx - superstructure

Legal & Political institutions Science, art, music Forms of social consciousness (ideology) Everything that is not the "base"

why did legal formalism fall by the wayside of legal theorizing in the early twentieth century?

Legal formalism fell due to things happening in the economic sphere, i.e. capitalism developing. The way that we viewed the law doesn't fit anymore.

Cultural Model: Paul Bohannon

Makes a distinction between customs, which resemble Malinowski's "body of binding obligation," and law, which Bohannon sees as requiring something more. Doesn't think law can exist w/o legal institutions

Malinowski definition of law

Malinowski defined these social rules as "laws" because they functioned similarly to the way that law functions in our society: they maintained social order. Law: "a body of binding obligations... kept in force by reciprocity and publicity inherent in the structure of society."

Cultural model

Malinowski, Bohannon, Sumner

Conflict or Critical Theorists

Marx, Turk, Chambliss in Kidder; Gabel & Feinman

Conflict Theory: Two Schools

Material conflict, cultural conflict

Marx - base

Means of production (machinery, materials, etc.) Forces of production (technological knowledge) Relations of production (social structures of domination in the workplace)

Metaphors for legal formalism

Metaphors for legal formalism: Law is "slot machine" justice Law is a mathematical theorem Courts refused to consider any social or economic data and focused only on abstract legal principles. eventually ppl became uncomfy with focus on leal books with no mention of social context, law + social sciences come about

Durkheim, ancient society to more complex society

More from mechanical to organic solidarity as they evolve. Mechanical - common experience promotes social order. Organic - solidarity based on common experience not possible, so maintained through connections between diverse ppl w diverse experience.

Structuralist Role Structure

Multiplex relationship, simplex relationship

Foundational Schools of Thought

Natural Law Tradition, Rationalism and the Enlightenment

4 schools of thought leading up to the sociological movement in the legal academy, all still exist

Natural Law, Enlightenment and Rationalization, Legal Formalism, Sociological Jurisprudence and Legal Realism

Legal Formalism

New economic interests of the industrial era demanded from the judiciary generality and logic. economic interest transforms legal system. free market, enlightenment, end of civil war 1865, turn of 20th century -golden age for entrepreneurship Generality ensured business owners that the courts would not interfere too specifically in their business transactions. Logic gave greater predictability to the legal outcome of these business transactions. Can't have legal system that blatantly supports the wealthy - no one would go for it. child labor law example

Structural Model Structural Equivalents

Nonlegal structures or institutions that accomplish the same things as law. Structuralists argue that the laws of a society will reflect both the nature of that society's material needs and also the nature of structural equivalents. In communist countries, all means of production are managed through the state - no need for contract law. Informal means of social control -shunning, gossip, angry looks, etc.

Legal Realism

Oliver Wendell Holmes, Jr. and Karl Llewellyn. Criticized both legal formalists and practitioners of sociological jurisprudence for thinking that laws do what they say they do. Less concerned with the content of laws, and instead wanted to know how laws actually worked. first scholars to study law in action, second critique of formalism. (first being sociological jurisprudence)

Turk - coercive power

Only the state can legitimately use force (whether by arrest, imprisonment, or declaration of war) to make people do things. Example: labor injunctions against unions in the late 19th century. Example: 19th century court orders that prohibited union workers from striking. Could be arrested for striking. Took away power from unions, put full power of government behind employers. Favors ruling class.

With the person next to you, consider Schwartz's example of the Kvutza (or Kibbutz) vs. Moshav. What methods of social control were used in each community? What kinds of sanctions were used to promote social cohesion? What social structures facilitated different regulatory outcomes?

Opinion was the control system - those in the kvutza cared, those in the moshav did not care about opinion Exchange of information - continuous interaction and observation in the kuvutza, not in the moshav Sanctions - public opinion manifested often switfly, subtly with varying degrees of intensity - kinds of interactions in the kuvutza but not in the moshav; moshav flouted public opinion

Roscoe Pound

Pound's jurisprudence is undoubtedly sociological because it treats law not as a conceptual and logical system of formal rules, but as an institution operating within a larger societal context that functions to regulate social processes with the objective of securing and protecting society's interests. theory of social interests.

Conflict Theory Free Contract Example

Prior to industrialization, courts evaluating a contract would consider whether the bargain itself was fair. Example: whether you paid a fair price for the stove. If you paid too much, court would rewrite contract to reflect fairness. Traditional views rather than market principles. This was not such a good thing for commerce. Sellers could never be sure if they'd get the price they bargained for, bc courts could step in and change it. The doctrine of free contract developed in the 19th century. Courts eventually refused to consider challenges to the substantive fairness of contractual agreements. Serves interest of capitalist class - lack of inquiry into the subsequent fairness benefits seller. A conflict theorist would argue that the law's formal representation of contract as a voluntary exchange between free and equal parties has ideological effects on society. Obscures the power differences. Corporations are treated as individuals. Are corporations and people equal when entering into a contract? Walmart and employees. Doctrine of free contract causes people to accept that bargain is fair and we have no grounds to challenge it in the future. Things are hard to get things outside context of contract - apartment leases, bank loans. Ritual of signing lease/I agree button, obscures power differences, makes it seem like it was a choice, no one made you sign the lease, click the button etc. makes the power seem normal, natural, fair. Conflict - hard to even see the social arrangement as problematic because the law is hegemonic. Idea that property owners can control property how they want natural, normal, we take this process for granted. How contract law used to be is useful for seeing how law works now. There were alternatives back in the day.

What about laws that seem to conflict with culture?

Prohibition, Problematizes that law comes from norms/customs, speed limits... cultural lag theory

Sociological Jurisprudence and Legal Realists

Rejects law is separate from politics, rejection that law in books and law in action are the same, calls for empirical application of the law

Sociological Jurisprudence (Roscoe Pound)

Roscoe Pound: To make good law you need to know the social context. Laws should be designed to produce "just" outcomes and to serve lofty "social interests." E.g., child labor laws Lochner vs. New York (1905) - kids can work, labor laws would violate free contract, this ignored social context more than abstract rules, look at social reality. Pound argued that legal reasoning should be concerned not only with logical consistency, but also with the making of public policy. Legal scholars should study the effects of laws, and not just legal principles. Judges should consider sociological and economic data, and other evidence about the social context of laws. argued that legal scholars should care about if laws are serving society - take in societal factors, not just based on precedents.

Schwartz Kibbutz

Social Organization - Daily, face-to-face interaction, economic organization - no private property, informal social control, no formal legal system

Schwartz - Moshav

Social Organization - Private, family-based interactions, economic organization - some forms of private property, no informal social control, formal legal system

Durkheim - Mechanical Solidarity

Social order in these societies is maintained through mechanical solidarity, or the cohesive bond that comes from learning the same sets of rules and customs, performing the same work, and living and working side by side. The purpose of law in these societies is repressive: law punishes those who violate the collective rules and customs. Punishment helps maintain social order

Durkheim - organic solidarity

Social order in these societies is maintained through organic solidarity, a form of cohesiveness that is based on interaction and inter-dependence rather than on homogeneity and a uniform set of values. Facilitating agreements, cooperation, management. Contract law helps me buy from you what I can't buy myself. The purpose of law in these societies is to coordinate activity.

Paradigm #3: American Legal Realism - Oliver Wendell Holmes

Society (not judicial system) determines which legal rules survive and how they will be used Law develops according to what society determines to be most pressing "Fluid rules" based on social conflict (pp. 59-60) Critique of legal formalism (1) in practice, law is not moral (2) law ≠ logic proof Pragmatism: lawyer's job is to predict the outcome

Structural Model

Society should be viewed as a complex machine/system where everything has a purpose, everything is linked to everything else. The structure of this overall system determines the form of law. Emphasize material conditions of our society rather than the ideas in people's heads. Concept of a system implies that everything has a purpose, and everything is linked to everything else. If you change one element in society, other things are gonna change in response. Law, as one of the elements in society, reflects relationship w other elements

Restitutive Law, Organic Solidarity

Society: Is large Is diverse Has high degree of specialization & division of labor Has no or few common customs

Repressive Law, Mechanical Solidarity

Society: Is small Is homogenous has minimal division of labor Has common customs

Double institutionalization, Bohannon

Some pattern of behavior becomes institutionalized (i.e., widely accepted), taken for granted, and valued as a custom. This custom then gets restated, formalized, and given a special status as a law. Andrew Martinez example - naked to class, then university mandate that you have to wear clothes. Custom needs to be reinforced by legal methods as law. need to reinstitutionalize because competing values, customs are ambiguous, as society becomes more complex, need to have customs / rules adapt.

Richard Schwartz article - conclusion/thesis Two Israeli Settlements

Studied two communities similar in many ways: Founded at the same time. Similar in size, culture, and political orientation. Both based on mixed farming and located in the same local climate and topography. Empirical evidence told differently by culturalists. Structuralists would look at these communities at face value and think they'd have similar legal systems. Structuralist might predict that both of these societies would have similar legal systems. But they don't. Schwartz explains the differences in the two legal systems by looking at social and economic structure.

The Enlightenment

The Enlightenment helped separate law from the religious foundations of earlier natural law traditions. But it still emphasized abstract general principles as a central feature of the legal order.

Structuralists argue...

The behavior of social systems is determined by "structural imperatives," or material needs that a society must satisfy in order to survive It is therefore it should be. "...legal forms are the result of the structure of relationships existing in the larger society and within the legal system itself." (p. 59) Structuralists see society as a complex engine or a biological organism. If one part fails, that part will need to be repaired or replaced by some other working part

Structural Model Needs

The behavior of social systems is determined by certain material needs or challenges that a society must satisfy in order to survive. a.k.a. "structural imperatives" or "functional imperatives" needs ppl need to survive. Need for coordination, conflict resolution, social control

Conflict Model: Turk

The law enhances dominant group power Coercive power (legitimate use of force, Weber) Economic power (material rewards) Political power (decision-making) Cultural power (frames of reference for thinking about world) Diversionary power (addressing grievances) P. 88 Austin Turk criticizes the assumption that everyone agrees to the rules that govern society. We have law precisely because people don't agree. Turk identifies five ways that law enhances a dominant group's power. 1)Law gives the dominant group coercive power. Only the state can legitimately use force (whether by arrest, imprisonment, or declaration of war) to make people do things. Example: labor injunctions against unions in the late 19th century. 2)Law gives the dominant group economic power. Law can enhance or erode people's economic power by affecting how material rewards get distributed throughout the social system. Examples: tax laws and bankruptcy laws 3)Law gives the dominant group political power. Law can affect people's political power by giving elites control over the decisionmaking process. Examples: congressional districts and voting restrictions 4)Law gives the dominant group cultural or ideological power. Law provides frames of reference that tell us how to think about the world. Examples: private property, contracts, citizenship 5)Law gives the dominant group diversionary power. Law offers a forum for addressing one's grievances—file a claim in court. But in doing so, law may distract attention from other ways of addressing grievances that might be more effective. E.g., Collective protest

1349 Vagrancy Law - A Structural Perspective

The new vagrancy laws arise from changes in the social structure that threaten social solidarity. New economy + plague threaten to pull the traditional social relationships of feudalism apart and cause society to disintegrate. The law helps society solve the problem of coordinating labor power and paying for it in the face of changes brought about by the new market economy and the plague. Law made it possible to continue profitable activities, helped keep people in same place where labor was needed. Cannot prove that any of these are better/more accurate - our own views will make us think one theory better than other

Durkheim v Cultural Model

Unlike the custom models, Durkheim argued that in modern societies it is the lack of common norms that gives rise to law. Functionalist because he sees law as providing function of solidarity. as societies evolve, laws change

1349 Vagrancy Law - A Cultural Perspective

Vagrancy laws reflect the customs and values of the community—in this case, the traditional norms of the feudal system. As society became more complex, customs had to then be reinstitutionalized as law to reinforce cultural norms about feudalism or help re-socialize those groups who had not accepted those norms. These laws had to be put in place to make feudal norms still relevant. Took time for reinstitutionalization, cultural lag, by the time it was implemented, society already on the way to market economy.

But if laws that are contrary to custom are doomed to fail, what about: Anti-discrimination laws? No smoking laws? Anti-pollution laws?

Why it matters - public statement about what this society values. Law can reflect values, law can change customs and values. Typically, custom disagreed with these aforementioned laws at the time. These laws were meant to create change. Could accelerate change in custom? - if you make it harder to do something, reduce prevalence of that behavior.

Conflict Theory: Chambliss + Vagrancy background

William Chambliss studied the development and use of vagrancy statutes in England beginning in the Middle Ages and continuing through the 18th century. During this period, there was a major historical transition in England from an economic system based on feudalism to a market-based economy that relied heavily on wage labor. When vagrancy laws were first enacted (in 1274), they were intended to relieve religious organizations from the burden of providing food and shelter to travelers, so that church resources could go to the poor. In 1349, the vagrancy statute was changed to make it a crime for anyone to give food or shelter to people who were unemployed but of "sound mind and body." Chambliss asked why these laws changed

CRITIQUES OF THE CULTURAL MODEL

a. Custom and Law often seem out of sync (but see "cultural lag") b. Empirical Challenge - Can find examples of different legal structures in societies with similar cultures and vice versa. Kidder's example of Japanese & American norms about litigation. c. Cultural theories tend to justify existing legal systems (assumes cultural consensus without considering whether there really is consensus) Whose culture is represented in law? Doesn't consider differences in power. One social group can pass laws claiming they reflect everybody's culture, when in fact they reflect only the specific culture of those in power. E.g., Blue Laws -Example: can't buy alcohol before noon on Sunday - blue law - type of law to protect certain moral standards, i.e. Sunday morning worship - this doesn't reflect cultural beliefs of everybody d. Suggests that there is no point in attempting to change society through legal reform because laws that go too far from custom will fail

CRITIQUES OF THE STRUCTURALIST MODEL

a. Empirical Critique There are different legal institutions in societies with similar sizes, levels of development, etc. (e.g., U.S. and Japan) There are similar legal institutions in societies with different sizes, levels of development, etc. (e.g., England and India). b. Structural models ignore the moral aspects of law . People experience law as having a moral element that goes beyond mere practicalities. Example: we don't outlaw murder because it is impractical/disruptive, but no we outlaw murder because we think it's wrong - moral issue c. Assumes that laws serve the purposes of everyone, without considering differences in power or class divisions. The assumption is that laws serve the purposes of everyone. But law created to preserve order for one segment of society may have adverse effects on another segment of society. Assumes law serves the same purpose for everybody. These theorists don't recognize that law created to preserve order for one aspect of society might have adverse effects for another aspect of society. Contract law, for conflict theorists, do a great job of preserving power for the dominant ppl - owners of Wal-Mart have much more advantage than its employees - law doesn't treat them equally. d. Tends to justify the existing social order: when you assume law is necessary and desirable, you implicitly assume that existing laws are good. When you assume that law is necessary to society, you implicitly assume that existing laws are good. When you do this, you rule out the possibility that things could be arranged in some other way. Structuralisms Legitimizes status quo.

Legal Analysis Paradigms

a. Legal Formalism b. Sociological Jurisprudence (Roscoe Pound) c. Legal Realism (Karl Llewellyn & Oliver Wendell Holmes)

CRITIQUES OF CONFLICT THEORY

a. Theory is vague as to how exactly ruling groups control the law and the courts b. Doesn't completely explain why people seem to go along with the direct manipulation of the legal system Common response: concept of hegemony helps to explain public consent. "it's all we know" c. What about laws that are contrary to the interests of capitalists? Common Response: The ideological role of law would be weakened if the legal system were obviously susceptible to manipulation by those in power. Law needs to appear relatively autonomous from the direct control of any group for its ideological effects to work. Give certain concessions in order to consolidate power. Helpful to have laws that seem to be contrary to ruling class, seems to give law legitimacy, doesn't look explicitly bias. But in long run, legal and political system skewed in a way that supports the dominant class. i. Conflict theorists' response: contrary laws are needed because ideological role of law would be weakened if the legal system were obviously susceptible to manipulation by those in power. ii. Law needs to be appear relatively autonomous from the direct control of any group for ideological effects to work.

Gabel and Feinman - contract law and conflict theory

central point to understand from this is that contract law today constitutes in large part an elaborate attempt to conceal what is going on in the world. Contemporary capitalism is a coercive system of relationships

Turk identifies five ways that law enhances a dominant group's power.

coercive power, economic power, political power, cultural or ideological power, diversionary power.

consensus model - cultural and structural -

cultural theorists - malinowski, bohannon, Sumner. Structural theorists - Schwartz, Durkheim - Durkheim Structural Functionalist. Structuralists argue that the laws of a society will reflect both the nature of that society's material needs and also the nature of structural equivalents. Consensus theorists see law as building collective consensus Structural functionalists are a special kind of structuralists who see who see existing social conditions as serving a useful and beneficial role in society. Unlike cultural theorists -- Durk argued that the lack of cultural common norms gives rise to society.

Critique of Natural Law Tradition

difficult to argue ideas that are rooted in tradition or religion. who says? no way to test these principles. derives authority from moral authority, not authority of state.

Structuralist Multiplex Relations

each individual plays many roles & shares many interactions with each other. When relationships are multiplex, there are many informal opportunities to explain norms, exercise social control, and resolve disputes.

Structuralist Simplex Relations

each individual usually plays only one specialized role with regard to every other individual. When relations are simplex, formal law may be the only recourse that people have for resolving problems A structuralist might predict that the more simplex relationships in a society, the more complex the legal system.

Legal Realists

focused on how laws were administered and applied (law in action rather than law on the books). concerned less with content or judges decisions v. how law is being applied in real world. starts to include social sciences.

Sociological Jurisprudence

focused on the factors judges ought to consider in legal reasoning to make better law. judges and legal scholars.

Karl Marx

i. The economic base determines the form and content of the legal system. society consists of an economic base and a noneconomic superstructure. Base includes means of production, forces of production, relations of production. Economic base determines society's superstructure. Superstructure includes what is not at economic base. Marx - most of what we experience as society derives from economic base, so legal structure in US for example is shaped by capitalism. ii. In the west, legal institutions were not created to promote social solidarity and cohesion but were created to protect and promote capitalism

Treviño - Sociological Movement in Law

is a critique to legal formalism. Sought to replace legal formalism with alternative forms of jurisprudence. Grand style (protecting morality) liberal political theory, legal formalism (protecting rights of wealthy and powerful). Talks about holmes, pound, Llewellyn.

Free Contract

is the idea that contracts are free and voluntary agreements between equal individuals acting without coercion.

Cultural Model

law as a reflection of cultural beliefs, values, norms, and customs. ideas that are in people's heads. how people see the world operating. Law is derived from custom. In more complex societies (with ambiguous or conflicting customs), custom must be reinforced through formal law. Law serves as a public declaration of shared norms, helps socialize the next generation of people, and resocialize those who were socialized differently. The primary source of law is our own cultural consensus about what is right and proper. To the extent that a law departs from that cultural consensus, it is less likely to be effective.

Conflict Model

law as a tool of oppression and exploitation.

Structuralist Model

law as an institution whose function is resolving disputes and building social harmony.

Structural Funcitonalist

law is useful, as it resolves disputes and builds social cohesion. Functionalism ("particular breed of structuralist"). kidder

Conflict Theory Researchers have identified a number of ways in which law can have an ideological impact. Law can:

mystify and distort social relations legitimate elite domination construct and reinforce hegemonic social forms.

Examples of things structuralists might study to understand legal development:

population size, role structure (multiplex v. simplex relations), property ownership. All structuralists view the law as reflecting and supporting society's efforts to meet the material challenges of day-to-day survival.

Material conflict

sees legal conflicts as being fights over material rewards or fights over society's productive activities, wealth, and other rewards. • E.g., Austin Turk - 5 ways that law enhances the dominant group's control • E.g., William Chambliss and laws of vagrancy

Cultural/Ideological conflict

sees legal conflicts as being fights over whose beliefs and customs will prevail • E.g. Gabel & Feinman • Ideology • Hegemony

Schwartz explains the difference in the two legal systems by emphasizing

social structure: integrated living and working conditions vs. family-based living and working conditions economic organization: communal property vs. private property Law arises as a substitute for mechanisms of informal social control. Culturalists would say the fact that one doesn't have private property reflects it's political culture. Different approaches to private property, living arrangements, reflect decisions the residents made based on their moral values. Tea kettle in kibutz - gifts can be private property, but the tea kettle could use the town's limited electric supply. Debating the tea kettle took 3 whole town meetings. In the end, the tea kettle would encourage socially divisive social get together, and if he kept it, it would disrupt the social equality and solidarity that the settlement rests upon. These are hardcore beliefs. People who hold beliefs like this would be shy to set up a legal system where people have more power/control over others. The kibutz settlement did have ways of formally resolving conflict - general assembly solved tea kettle issue. Solved issue of spending money - had norm at beginning of the community dipping into the communal money pot, hardcore members pent less money than others. Public opinion could not resolve this issue. General assembly found amount that each member could spend a year. They primarily relied on informal social control, but they still relied on legal structure in line with their political values. How your perspective/meta theory filters what you see as important. Culturalists explain this one way, structuralists another based on their different perspectives.

During the first three decades of the 1900s, legal formalism came under attack for being too rigid and inflexible to cope with the times. Sociology of law has its roots in the attack on legal formalism from two schools of thought: Sociological Jurisprudence Legal Realism

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Theorists and Researchers Structuralist Model

• Durkheim (functionalist) Repressive v. restitutive laws • Schwartz (Israeli settlements)

Criticisms Conflict Model

• Fails to explain mechanisms of power and how specifically dominant groups control the law, state, and courts • Fails to explain why people go along with unjust system (Response: cultural hegemony) • Fails to explain passage of laws that do not serve dominant groups' interest (Response: these laws appease subordinate majority by masking power relations and injustice)

Criticisms Structuralist Model

• Ignores moral aspects of law (e.g. murder) • Empirical anomalies (different legal institutions in societies with similar sizes and development and vice versa) • Assumes law reflects a collective consensus • Ignores social divisions and assumes law serves everyone equally • Assumes law is socially beneficial • Justifies the existing social order

Principles Cultural Model

• In more complex societies, custom must be reinforced through formal law • The primary source of law is a cultural consensus of what is right and proper. • If a law departs from cultural consensus, it is less likely to be effective • Law is malleable based on changing beliefs, values, norms, and customs.

Criticisms Cultural Model

• Laws conflict with custom (Response: cultural lag theory) • Does not address motivation to change laws that challenge dominant culture if they are doomed to fail • Does not address whose customs become law (assumes consensus) • Does not consider power differences • Assumes laws are socially beneficial • Empirical anomalies of law emerge in societies with similar or dissimilar cultures (e.g. Japanese v. American litigation norms)

Theorists and Researchers Cultural Model

• Malinowski (social rules are laws) • Bohannon (distinguishes customs and law. Laws are formalized customs that are reinstitutionalized)

Principles Structuralist Model

• Society is a complex structure with interrelated and interdependent parts. • Material needs and societal challenges drive behavior of social systems (structural/functional imperatives). • Law reflects society's efforts to meet material challenges of daily survival. • Law is more deterministic and focuses on material resources and distribution. • Law emerges from a lack of common norms.

Principles Conflict Model

• The law is neither neutral nor objective. • Law is linked to social structures over who defines cultural values and who benefits from society's material wealth • Law may exert ideological effects

Purpose of Law Structuralist Model

• To coordinate society (traffic laws) NOTE: Restitutive (cooperative laws) coordinate society • To resolve conflict (courts) • To maintain social control and build social harmony (e.g. drunk driving laws) NOTE: Repressive laws punish people who violate collective rules and customs (helps maintain social control/harmony)

Purpose of Law Conflict Model

• To oppress and exploit • To promote interests of dominant social groups at the expense of oppressed or subordinate social groups • To protect and reproduce capitalist relations (Marx)

Purpose of Law Cultural Model

• To reflect cultural beliefs, values, norms, and customs • To help socialize the next generation of people • To help resocialize people socialized differently from dominant norms

Theorists and Researchers Conflict Model

• Turk (5 ways law increases dominant group: coercive, economic, political, cultural/ideological, diversionary power) • Marx • Chambliss (vagrancy laws)

Cultural Model, Trevino and Kidder

● Law is derived from custom ● In more complex societies (ambiguous or conflicting customs), law reinforces custom ● Law declares shared norms, helps socialize next generation, and resocialize those who were socialized differently ● Laws that diverge too far from custom are doomed to fail