Law and Society Exam 1

hoebel

- "trend of the law" his descriptions of trends in legal development is based on the assumption that cultures of contemporary primitive societies exhibit characteristics that are similar "to those that presumably prevailed in the early cultures of the infancy of mankind". - he considers law and the legal system as a property of specific community or subgroup of a society, and states "without the sense of community there can be no law"

chambliss/vagrancy law

- Development of vagrancy laws paralleled the need of landowners for cheap labor during the period in England when the system of serfdom was collapsing. - The first: threatened criminal punishment for those who were able-bodied and yet unemployed

sociology

In ___________ the emphasis is on description, on understanding the reasons why certain groups of people act in certain ways in specific situations

ID willock

"in so far as jurisprudence seeks to give law a location in the whole span of human affairs it is from sociology that it stands to gain most"

eugen ehrlich

"the center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself"

Sharia (islamic)

"the way to follow" - specifies the rules for believers based on divine command and revelation

rational procedures

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

feminist legal theory

it is 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, sexual preferences, and rape

dahrendorf's view on law

it is impossible to choose empirically between theses two sets of assumptions: "stability and change, integration and conflict, function and dysfunction, consensus and constraint are, it would seem, two equally valid aspects of every imaginable society

traditional societies

rely on custom as the source of legal rules and resolve disputes through conciliation or mediation by village elders, or by some other moral or divine authority - more homogenous than industrial societies - social relations are more direct and intimate - interests shared by everyone - fewer things to quarrel about

irrational procedures

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

substantive law

rights, duties, promotions administered by courts- which behaviors are to be allowed and which are prohibited

procedural law

rules concerning just how substantive laws are to administered, enforced, changed and used by players in the legal system

substantive law

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

legal culture

the attributes of behavior and attitudes that make the law of one society different from that of another

conciliatory style

the complainants are socially connected and there's no consideration of who is right and who is wrong (situation is seen as a bad social situation in which resolution is needed)

social solidarity (durkheim)

the glue that holds society together; 2 components = regulation and integration - society must provide meaningful connections and a sense of morality and social understanding - if a society can't provide moral regulation that society is said to be in a state of anomie (deregulation/normlessness) - regulation = the rules for a group's benefit - integration = making people care about the rules

compensatory style

the rule-breaker is considered to have a contractual obligation and therefore owes the victim restitution; accusatory, relies on someone being found right and wrong; in the court room (ex: breaking a contract)

penal style

the rule-breaker is seen as a violator of a prohibition and an offender to be subjugated to punishment; accusatory, winner and loser; in the court room and stigmatizing (ex: murder)

therapeutic style

the rule-breaker's conduct is seen as wrong but sick and in need of help (ex: mental illness); sometimes court-ordered therapy; stigmatizing

Sunna (islamic)

the sayings, acts, and allowances of the Prophet as recorded by reliable sources in the Tradition (Hadith)

sociological jurisprudence

the study of law and legal philosophy, and the use of its ideas in law to regulate conduct - based on a comparative study of legal systems, legal doctrine, and legal institutions as social phenomena and considers law as it actually is - the "law in action" as distinguished from the law as it appears in books

Koran (islamic)

the word of God as given to the Prophet

substantive irrationality

this exists when a case is decided on some unique religious, ethical, emotional, or political bias instead of by general rules (ex: when a religious judge makes a decision without any recourse to explicit rules or legal principles)

formal irrationality

this involves rules based on supernatural forces. it is irrational because no one tries to understand or clarify why it works and formal because strict adherence is required to the procedures.

formal rationality

this involves the use of consistent, logical rules independent of moral, religious, or other normative criteria that are applied equally to all cases

substantive rationality

this is based on the application of rules from nonlegal sources such as religion, ideology, and science. it is rational because rules are derived from specific and accepted sources and substantive because there is a concern for justness of outcomes in individual cases

paramount function of law (donald black)

to regulate and constrain the behavior in their relationships with others; law is to be employed only when other formal and informal methods of social control fail to operate or are inadequate for the job

analogical reasoning (islamic)

used in circumstances not provided for in the Koran or in other sources

positive law

view law as human made and law is plagued with all of the problems and trouble that characterize humans

torts

violations of civil statutes; private wrongs for which the injured individual may seek redress in the courts for the harm he or she experienced

when law emerges

when the social structure of a given society becomes so complex that regulatory mechanisms and methods of dispute settlement can no longer be dependent on informal customs and social, religious, or moral sanctions

law

The ________ reacts to problems most of the time; the issues and conflicts are brought to its attention by clients outside the legal system

weber's definition of law

an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves especially ready for that purpose

judicial consensus (islamic)

based on historical consensus of qualified legal scholars; limits the discretion of the individual judge

natural law

based on the assumption that the nature of human beings can be known through reason, and that this knowledge can provide the basis for the social and legal ordering of human existence

administrative law

body of law created by administrative agencies in the form of regulations, orders, and decisions

constitutional law

branch of public law - determines the political organization of the state and its powers while also setting certain substantive and procedural limitations on the exercise of governing power - interpreted by U.S. Supreme Court

organic solidarity

characteristic of modern societies that are heterogenous and differentiated by a complex division of labor - associated with restitutive law - modern law is bound by this - social integration is based on interdependence and is loose across society, regulation is based on contracts, reparation, and restitution

kolkhoz (socialist)

collective farm; socialist - collective ownership which is based on nationalized land

sharia legal precepts

1. commanded 2. recommended 3. reprobated 4. forbidden 5. left legally indifferent

branches of law

1. constitutional law 2. case law 3. statutory law 4. executive orders 5. administrative law

dicey

- MOST CRUCIAL CONTRIBUTION TO LAW AND SOCIETY: - is the recognition of the importance of public opinion in legal development (relationship between public opinion and law reform) - known for his famous doctrine of "the rule of law" the doctrine has 3 aspects: 1. no one is punishable except for a distinct breach of law, and therefore, the rule of law is not consistent with arbitrary or even wide discretionary authority on the part of the government 2. the rule of law means total subjection of all classes to the law of the land, as administered by the law courts 3. individual rights derive from court precedents rather than from constitutional codes

karl marx

- ______ postulates that every society, whatever its stage of historical development, rests on an economic foundation - he calls this "mode of production" of commodities, which has 2 elements: 1. physical or technological arrangement of economic activity 2. "the social relations of production" or the indispensable human attachments that people must form with one another when engages in economic activity ______ theory of law three assumptions: 1. law is a product of evolving economic factors 2. law is a tool used by a ruling class to maintain its power over the lower classes 3. in the communist society of the future, law as an instrument of social control will "wither away" and finally disappear - in societies with pronounced class distinctions, the means of production are owned and controlled by the ruling class - his theory of law characterizes law as a form of class rule and dominance - according to his view, there will be no need for law in the future-- a future that will be the final stage of humanity's evolution because stateless and lawless communism shall exist forever

romano germanic system

- civil law. Foundation- 6th century under Roman emperor Justinian. - Code of Justinian has evolved into private law (regulating private relationships between individuals). - Codified systems are basic laws that are set out in codes. A code is simply a body of laws. - These statutes are enacted by national parliaments that arrange entire fields of law in an orderly, comprehensive, cumulative, and logical way. - Most European countries have national codes - mix of Customary and Roman law.

advanced societies

- common interests decrease - face to face relations are less important - access to material goods becomes more indirect, struggle for available goods - need explicit regulatory and enforcement mechanisms - formal and universal legal rules dealing with business organizations and commercial transactions

donald black

- he considers law as governmental social control, which makes use of legislation, litigation, and adjudication - he contends that law is a quantitative variable that can be measured by the frequency by which, in a given social setting, statutes are enacted, regulations are issued, complaints are made, offenses are prosecuted, damages are awarded, and punishment is meted out

max weber

- his typology of legal systems is based on two fundamental distinctions 1. legal procedures are rational or irrational. 2. legal procedures can proceed, rationally, or irrationally, with respect to formal of substantive law - these 2 distinctions create four ideal types, which are seldom, if ever, attainted in their pure form in specific societies 1. substantive irrationality 2. formal irrationality 3. substantive rationality 4. formal rationality - while referring to both formal and substantive rationality, he identifies three types of administration of justice: 1. kahdi justice 2. empirical justice 3. rational justice - formal rationality allows for a society to maximize production: produce more things, more kinds of things, better things, faster, cheaper, accessible

social change

- law is considered "desirable and necessary, if not highly efficient means of inducing change, and that, wherever possible, its institutions and procedures are preferable to others of which we are aware" - law is used as a way of bringing about planned social change by the government

quinney

- law is the state's coercive weapon, which maintains the social and economic order, and supports some interests at the expense of others, even when those interests are that of the majority. - society is characterized by diversity, conflict, coercion, and change - law is created by interests - not all laws are created and operated for the benefit of the powerful ruling groups in society.

schur's conclusion

- lawyers and sociologists don't talk the same language, lack of communication creates uncertainty and less cooperation - lawyers need to make decisions here and now while sociologists are willing to suspend final judgment on the issue - there's a special rhetoric of law, its own vocab, and own legal writing

emile durkheim

- legal and moral questions are inseparable - society is orderly and ration and social scientists can develop understandings of the social world - law aspires to express the moral commitments of people living in many different kinds of relationships of community, reflecting the values of those whole life it regulates - foundation of law--foundation uncovered empirically by studying the social phenomena in which they reside, and by understanding - he sets forth a theory of legal development by elucidating the idea that law is a measure of the type of solidarity in a society. there are 2 types: 1. mechanical solidarity 2. organic solidarity

dispute settlement

- settle disputes through an authoritative allocation of legal rights and obligations - let the courts settle matters/disagreements that have been translated into legal disputes - doesn't necessarily result in reduced tension or antagonism

social control

- social norms tend to be consistent with each other/shared (consensus about them) - supported by tradition - dependent upon self-sanctioning - formal and informal punishment (gossip, humiliation)

pound's view on law

- the purpose of law is to control interests and to maintain harmony and social integration law in a heterogeneous and pluralistic society, such as the United States, is best understood as an effort at social compromise with an emphasis on social order and harmony - argues that the historical development of law demonstrates a growing recognition and satisfaction of human wants, claims, and desires through law - law is a form of "social change" directed toward achieving social harmony. - purpose of law is to maintain and to ensure those values and needs essential to social order, not by imposing one group's will on others, but by controlling, reconciling, and mediating the diverse and conflicting interests of individuals and groups within society

why did legal systems change

1. issue of legal development in any society 2. forces that produce or prevent change in the legal system

montesquieu

-Challenges the underlying assumptions of nature law by presenting a radically different conceptualization of law and society. -Central thesis: laws are the result of a number of factors in society, such as customs, physical environment, and antecedents, and that laws can be understood only in the context of particular societies.

modern legal systems

-Laws are extensive networks of local and national statutes, private and public codes, crimes and torts, common and civil laws, and procedural and substantive rules -proliferation of public and procedural laws= ADMINISTRATIVE LAW -increasing proportion of statutory over common law -hierarchies of laws -The roles of lawyers and judges --> professionalized -laws are enforced and court decisions are carried out by clearly differentiated and organized police forces, which are organized at the local, state, and federal levels -greater emphasis on integrative problems and on enacting comprehensive laws

transitional legal systems

-advanced agrarian and early industrial societies -basic legal elements: laws, courts, enforcement agencies, and legislative structures. -Public law:the structure of government, the duties and powers of officials, and the relationships between the individual and the state - Private law: regulates relations among nonpolitical units -Criminal law: denotes wrongs against the community. -Torts: laws pertaining to private wrongs of parties against each other rather than against the state or the public -codified system of laws -a small cluster of statuses can enact laws ----initially, political elite ----later, legislative changes become more comprehensive - Structural differentiation becomes more complex, political development increases, bringing with it inequities in power and wealth. In such situations, civil law tends to legitimize these inequalities.

sumner maine

-certain political, social, and legal forms reappear in seemingly different garb, and if they reappear, the manifest themselves in certain typical ways. -status is a fixed condition in which an individual is without will and without opportunity. - legal history of people shows patterns of evolution, which recur in different societies and in similar historical circumstances - "the movement of the progressive societies has hitherto been a movement from states to contract" -> status is a fixed condition in which an individual is without will and without opportunity

common law system

-characteristic of the English system, developed after the Norman Conquest 1066. - The law of England as well as those laws modeled on English law (US, Canada, Ireland and India) resisted codification. - Law is not based on acts of parliament but on case law, which relies on precedents set by judges in deciding a case. - This is "judge-made" law. Precedental doctrine.

laissez faire capitalism

-doctrines of courts and legislatures in the US, perhaps consciously unconsciously, reflects the economic and social philosophy of Spencer and Sumner

primitive legal systems

-hunting and gathering and simple agrarian societies. -they are permeated by customs, tradition, religious dogmas, and values. -prim. laws coexist with ancient norms & undifferentiated. -Substantive & Procedural Laws - FUNCTION: Laws preserve important cultural elements; they coordinate interaction, settle disputes, check deviance, and regularize exchanges. Also legitimize existing inequalities. -Kin leaders, councils of elders or chiefs. -Judges and political leaders = elders and chiefs -cout-enacted law (common law) rather than on legislative law enacted by political bodies (statutory law) -Chiefs/elders can enact both substantive and procedural laws. The chief legislator can strike, rescind, or change old laws more easily than the modern legislator. -Courts - temporarily assembled and dispersed

dysfunctions of law

1. Social changes often precede changes in the law. In crisis, the law can break down, providing an opportunity for discontinuous and sometimes cataclysmic adjustments. Ex: first aid legal measures used during an energy crisis, such as the rationing of gasoline purchases. 2. There is a type of rigidity inherent in the law's normative framework. Norms are shared convictions about the patterns of behavior that are appropriate or inappropriate for the members of a group. 3. Norms serve to combat and forestall anomie and social disorganization. Law can overstep its bounds and regulation can turn into overregulation, in which situation control may become transformed into repression. 4. Black's contention that certain kinds of discrimination are inherent in law itself. Rules, in principle, may apply to everyone, but legal authority falls unevenly across social place. He argues that social status (regardless of race), the degree of intimacy, speech, organization, and a number of otter factors all greatly influence the use and application of law.

differences in thinking (legal and scientific)

1. law seems to be more inclined toward the particular than toward the general 2. law doesn't endeavor to establish dramatic connections between means and ends 3. truth for the law is normative and nonprobablistic; either something has happened or it hasn't, law is either valid or invalid 4. law is primarily past and present oriented and is rarely concerned with future events 5. legal consequences may be valid even if they don't occur; their formal validity doesn't inevitably depend on compliance 6. a legal decision is an either-or, all-or-nothing process with little room for a compromise solution

4 styles of social control (donald black)

1. penal 2. compensatory 3. therapeutic 4. conciliatory

weber's 3 features of law

1. pressures to comply with the law must come externally in the form of actions or threats of action by others regardless of whether a person wants to obey the law or does so out of habit 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

2 issues with weber's definition

1. too much emphasis on coercion and ignores other considerations that may induce individuals to obey the law - people could feel like it their duty to obey 2. use of special staff: definition limits the term law in cross cultural and historical context - argue that the world staff implies an organized administrative apparatus that may not exist in certain illiterate societies

socialist legal system

1917 Bolshevik Revolution. 3 objectives: 1. Law must provide for national security 2. Law has the economic task of developing production and distribution of goods on the basis of socialist principles so that everyone will be provided for "according to his needs." 3. Education: to overcome selfish and antisocial tendencies that were brought about by a heritage of centuries of poor economic organization. Source of law: legislation Rejects the idea of the separation of powers. Socialist ownership: (1)collective and (2)state. State ownership: prevails in the industrial sector in the form of installations, equipment buildings, raw materials,a nd products. Collective: nationalized land. Property is not who owns it, but by whom it is owned and how such property is exploited. (China, Cuba, North Korea, and Vietnam)

consensus and conflict

2 conceptions of society (ideal types):

functions of law (that separate it from social control)

Donald Black: 1. Law can be analytically separated from other normative systems in societies with developed political institutions and serialized lawmaking and law-enforcement agencies 2. The paramount function of law is to regulate and constrain the behavior of individuals in their relationships with one another. Ideally law is to be employed only when other formal and informal methods of social control fail to operate or are inadequate for the job. 3. Law can be distinguished from other forms of social control primarily in that it is a formal system embodying explicit rules of conduct, that 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.

consensus/functionalist

FUNCTIONALIST -considers law as a neutral framework for maintaining societal integration. -Pound views society as composed of diverse groups whose interests often conflict with one another but are in basic harmony. He considers certain interests as essential for the well-being of society and maintains that the reconciliation between the conflicting interests of the diverse groups in society is essential to secure and maintain social order. -Law (in a heterogeneous and pluralistic society) is best understood as an effort at social compromise with an emphasis on social order and harmony. Historical development of law demonstrates a growing recognition and satisfaction of human wants, claims and desires through law. -Law is a form of social change directed toward achieving social harmony. -The purpose of law is to control interests and to maintain harmony and social integration.

holmes

He was a Supreme Court judge who also helped found school of legal realism - "legal realism" is based on the conception of the judicial process whereby judges are responsible for formulating law, rather than merely finding it in law books - his basic philosophy of life is essentially a Darwinian struggle for existence and that the goal of social effort was to "build a race" rather than to strive for the attainment of humanitarian ethical objectives

mystery of the capital

Hernando de Soto - 80% of the poor people in the developing world can't identify who owns what, addresses can't be verified, and the rules that govern property vary from neighborhood to neighborhood or even from street to street

path of the law

Holmes - outlines some of his basic propositions and states that "a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of a court"

paperized

In third world countries, the notion of holding title to property is limited to a handful of elites whose assets are ____________ in the formal documents and legal structures common in the West

herbert spencer

Law and Human Progress: -Civilization is the progress of social life from primitive homogeneity to ultimate heterogeneity. - natural selection and the survival of the fittest are the primary determining factors 2 main stages in dev. of civilization: - 1.a primitive or military form of society with war, compulsion, and status as regulatory mechanisms; - 2. a higher or industrial form of society with peace, freedom, and a contract as the controlling devices. (human progress will be marked by a continual increase in individual liberty and a corresponding decrease in governmental activities)

weber

Law has three basic features that, taken together, distinguish it from other normative orders, such as custom or convention

conflict/radical

MARXIST - The transformation of society from a small, relatively homogeneous social group to a network of specialized groups is brought about by the evolution of both distinct sets of interests and differences in real power between groups. - - When diverse groups come into conflict, they compete to have their interests protected and perpetuated through the formalization of their interests into law. - Law is a tool by which the ruling class exercises its control. - Law both protects the property of those in power and serves to repress political threats to the position of the elite. Quinney - whereas the state is the instrument of the ruling class, "law is the state's coercive weapon, which maintains the social and economic order," and supports some interests at the expense of others, even when those interests are that of the majority.

iue civile (romano germanic)

Roman civil law

concerned

Sociology and law are __________ with: - norms - the nature of legitimate authority - the definition of relationships - mechanisms of social control - issues of human rights - power arrangements - relationship between public and private spheres - formal contractual commitments

third world societies

_______ _______ _________: the formal systems of property rights taken for granted in advanced nations simply do not exist

code (romano germanic)

a body of laws; Romano Germanic

criminal law

concerned with the definition of crime and the prosecution and penal treatment of offenders

public law

concerned with the structure of government, the duties and power of officials and relationship between individuals and the state

civil law

consists of a body of rules and procedures intended to govern the conduct of individuals in their relationships with others

case law

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

private law

governing relationships between individuals

developmental models

have been used and are being used in almost every field of social science; their use is justified by the attempt to make sense of history which requires an appreciation of directionality, growth , and decay - can deal with transformations at various levels in society (individual, group, community) or they may deal with the transformation of entire societies - theme: the identification of forces that, having been set in motion at one stage, produce a characteristic outcome in another stage

islamic legal system

individuals should submit to the will of God. 4 Principle Sources: 1. The Koran (the word of God as given to the Prophet) 2. Sunna (sayings, acts, and allowances of the Prophet as recorded by reliable sources in the Tradition.) 3. Judicial Consensus: based on historical consensus of qualified legal scholars, and it limits the discretion of the individual judge. 4. Analogical Reasoning: used in sources not provided for in the Koran or in other sources. Shari'a legal precepts (5).

black's definition of law

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

common law

law isn't based on acts of parliament but on case law, which relies on precedents set by judges to decide a case; "judge-made" law instead of "enacted law"/legislation

spirit of laws

laws are a result of a number of factors in society, such as customs, physical environment, and antecedents and that laws can be understood only in the context of particular societies

Civil law

legal systems whose development was greatly influenced by Roman law; codified systems and the basic law is found in codes

statutory law

legislated law-- law made by legislatures.

islam (islamic)

means "submission" or "surrender" and implies that individuals should submit to the will of God

importance of rationality

one of the most important characteristics of the development of Western society and modern law; allows for a society to maximize production - efficiency, predictability, calculability, non-human technology, and control over uncertainties

mechanical solidarity

prevails in relatively simple and homogenous societies where unity is ensured by close interpersonal ties and similarity of habits, ideas, and attitudes - associated with repressive and penal law - integration is tight and family based, and regulation/rules and laws are repressive and punitive

formal law

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

executive orders

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