Soc 641 Exam 1

What is law according to customary theory?

Codified folkways and mores; law crystallizes custom

What is law according to Durkheim?

Expression of collective conscience and social solidairty

What is law according to structural-functionalism?

Instrument to maintain order and meet system needs

What is law according to Marx/conflict theory?

Instrument of class domination

What is law according to Weber?

System of formally rational rules

What is law according to Bourdieu?

Relatively autonomous field structured by struggles over legal capital

Folkways

Unconscious, repetitive group habits and customs that develop spontaneously to satisfy basic human needs

Mores

Occurs when folkways evolve to include a philosophical or ethical doctrine of societal welfare

Juridical/legal field

Structured social space or arena where legal professionals compete for the monopoly to interpret what the law is

Capital

Resources that confer power and advantage, which must be:

• Convertible

• Field specific

• Unevenly distributed and scarce

Fields

Organized social spaces

Habitus

Durable, embodied disposition/way of thinking

Legal habitus

Disposition/ways of thinking  acquired through socialization related to the legal field

• Legal education reframes social conflicts as legal questions

View of society according to customary theory

Integrated, tradition-bound community

• Social order as organic

View of society according to Durkheim

Morally integrated, consensus-based society

• Increasingly complex division of labor

View of society according to structural-functionalism

Complex system of interdependent parts needing equilibrium

View of society according to Marx/conflict theory

Structured by class conflict and domination

Society according to Weber

Differentiated, rationalizing modern society

Society according to Bourdieu

Stratified fields with structures hierarchies and power struggles

Change and conflict in society according to customary theory

Slow cultural evolution

Change and conflict in society according to Durkheim

Form moral change

Change and conflict in society according to structural-funcitonalism

Triggered by strain or shock

• Aims to restore balance

Change and conflict in society according to Marx/conflict theory

From class struggle

• Dialectal materialism

Dialectal materialism

Marx theory of social change, requires:

• Thesis

• Antithesis

• Synthesis

Change and conflict in society according to Weber

From rationalization

Rationalization

Historical shift in society from traditional, emotional, and mystical ways of thinking to a focus on logic, efficiency, calculability, and practical reason

Change and conflict in society according to Bourdieu

From shifts in capital distributions within and beyond the field

Origin of law according to customary theory

Evolves gradually from long-standing social customs

Origin of law according to Durkheim

Arises as society differentiates

Origin of law according to structural-functionalism

Generated when informal norms fail in complex societies

Origin of law according to Marx/conflict theory

Produced by ruling class control of the state

Origin of law according to Weber

Emerges from bureaucratic rationalization

Bureaucratic rationalization

Historical shift in socieOty from values based on tradition, emotion, and religion to a system governed by instrumental logic, calculability, and formal rules

Origin of law according to Bourdieu

Constructed by jurists competing in a field, shaped by state power

Source of law’s authority according to customary theory

Community consensus and tradition

Source of law’s authority according to Durkheim

Shared moral values

Source of law’s authority according to structural-funcitonalism

Systematic necessity; social consensus

Source of law’s authority according to Marx/conflict theory

Economic power of ruling class

Source of law’s authority according to Weber

Rational-legal legitimacy

Source of law’s authority according to Bourdieu

Symbolic power based on legal capital and state authorization

Law’s relation to society according to customary theory

Direct reflection of social culture

Law’s relation to society according to Durkheim

Law mirrors moral solidarity

Law’s relation to society according to structural-funcitonalism

Law adapts to social change to restore balance

Law’s relation to society according to Marx/conflict theory

Law reflects class structure

Law’s relation to society according to Bourdieu

Law embodies rationalization

View of legal actors according to customary theory

Passive conduits of tradition

View of legal actors according to Durkheim

Moral agents enforcing norms

View of legal actors according to structural-functionalism

Role-holders maintaining order

View of legal actors according to Marx/conflict theory

Class agents

View of legal actors according to Weber

Bureaucratic functionaries (operate within a rational-legal authority structure to execute administrative tasks)

View of legal actors according to Bourdieu

Strategic competitors over legal capital

Autonomy of law according to customary theory

Very low— embedded in custom

Autonomy of law according to Durkheim

Low

Autonomy of law according to structural-functionalism

Low

Autonomy of law according to Marx/conflict theory

Low in instrumental version

Medium in symbolic version

Instrumental view of law

Law is a reflection of economic/material relationships

Symbolic view of law

1. Relax assumptions that law is a simple reflection of the mode of production

2. Emphasize law as a symbolic system (ideology) that fosters obedience

Autonomy of law according to Weber

Medium-high

Autonomy of law according to Bourdieu

Relatively autonomous, yet nested in the field of state power

Role of the state according to customary theory

Minimal; codifies preexisting norms

• “Lawyers cannot change folkways”

Role of the state according to Durkheim

Moral center of society

Role of the state according to structural-functionalism

Maintains system equilibrium

Role of the state according to Marx/conflict theory

Tool of class rule

Role of the state according to Weber

Monopoly of legitimate violence; Bureaucratic administrator

Role of the state according to Bourdieu

Meta-field that regulates legal capital and authorizes the field

Hierarchy and reproduction according to customary theory

Law emerges from consensus, NOT hierarchy

Hierarchy and reproduction according to Durkheim

Rarely addressed

Hierarchy and reproduction according to structural-functionalism

Maintains order; hierarchy backgrounded

Hierarchy and reproduction according to Marx/conflict theory

Hierarchy imposed from above

• Ideology and hegemony

Hierarchy and reproduction according to Weber

Notes hierarchy but not central

Hierarchy and reproduction according to Bourdieu

Central: fields are hierarchical and reproduce domination

Methodological approach/assumptions according to customary theory

Evolutionary; assumes gradual cultural development

Methodological approach/assumptions according to Durkheim

Positivist; assumes law expresses shared moral facts

Methodological approach/assumptions according to structural-functionalism

Institutions as social sub-systems; assumes law serves functional needs of society

Methodological approach/assumptions according to Marx/conflict theory

Historical-materialist; assumes economic structure determines superstructure

Methodological approach/assumptions according to Weber

Interpretive (Verstehen) and comparative-historical; assumes meaning is produced through social action

Methodological approach/assumptions according to Bourdieu

Relational and reflexive sociology; assumes fields are structured by capital and reproduce themselves through practice

Key concepts of customary theory

Folkways → mores → law

• Double institutionalization (core process where a society takes a custom, reinstitutionalizes it, and gives it a coercive legal backing)

Key concepts of Durkheim

Mechanical vs. organic solidarity

• Mechanical: informal enforcement threats to the collective conscience; simple societies; repressive law

• Organic: formalized law maintains functional interdependence; complex societies; restitutive law

Repressive vs. restitutive law

• Repressive: objective form of a strong collective conscience

• Restitutive: oriented at restoration of social relations among individuals

Collective conscience: totality of beliefs and sentiments common to the average members of a society

Social fact: ways of acting, thinking, and feeling, external to the individual, and endowed with the power of coercion

Key concepts of structural-functionalism

Legal control: official, written, and institutionalized mechanisms enforced by specialized authorities
Informal control: unofficial, written, and institutionalized mechanisms enforced by specialized authorities

Simplex: more likely to leave/exit in response to conflict; no need to preserve the relationship

Multiplex: incentive to work out an issue; value preserving the relationship during a dispute

Interactional density: the more people, the more opportunities for cooperation and conflict, and the weaker informal forms of social control

Key concepts of Marx/conflict theory

Rational legal authority

Bureaucracy

Rational substantive: Law guided by general rules but also values outside of law

Irrational substantive: Concrete factors of the case and ethical values other than contains in law

Rational formal: Standardized procedures and decision-making, impersonality, limitations on discretion and on the particularities of any given case

Irrational formal: Formal procedures; application of principle beyond the control of reason

Key concepts of Bourdieu

Field

Capital(s)

Habitus

Symbolic power: ability to appear neutral, autonomous, and authoritative, even while reproducing social hierarchies

Misrecognition: ability to turn conflict into neutral categories

Field of state power: law is not fully autonomous from the state or market

Key arguments and cases according to customary theory

Sumner v. Bohannan: can law change custom? lag;

critique: whose customs?

history-and-tradition test (Bruen case)

Key arguments and cases according to Durkehim

Why society needs crime;

why crime is normal

Key arguments and cases according to structural-functionalism

Schwartz: kibbutz v. moshav

Shapiro’s critique (lecture)(ideology)

Parsons: law as integrative subsystem; functional for whom? (Gans, lecture)

Key arguments and cases according to Marx/conflict theory

Instrumental v. symbolic versions

Chambliss: vagrancy laws and his later revision

Pashukanis: abstraction and formal equality

Thompson: law must at times be just

Key arguments and cases according to Weber

Principles of bureaucracy;

evolutionary theory of legal change;

elective affinity;

England Problem: law and capitalism (Ewing)

Key arguments and cases according to Bourdieu

Rejects formalism (Kelsen) and instrumentalism;

force of law: relative autonomy plus external entanglement;

hierarchy of the juridical field;

limits of autonomy

What is law according to legal realism?

Prediction of what courts will do (Holmes);

law in action, not law on the books (Pound, Llewellyn)

View of society according to legal realism

Industrializing society of competing interests;

Pound: interests can be reconciled;

Llewellyn: no moral core

How and why law changes according to legal realism

“The life of the law has not been logic; it has been experience”;

adapts to the “felt necessities of the time” (Holmes);

lags behind social conditions (Pound)

Source of law’s authority according to legal realism

Practical consequences and fit with social needs

View of legal actors according to legal realism

Judges as problem-solvers and policymakers;

the “bad man” as the test of law (Holmes)

Autonomy of law according to legal realism

Low; law embedded in society

Role of the state in legal realism

Active, interventionist state (Progressive Era, New Deal)

Methodological approach/assumptions in legal realism

Pragmatist and empirical;

Pound normative (social interests)

Llewellyn descriptive (law as practiced)

Key concepts of legal realism

Legal formalism;

prediction theory, bad man, reasonable man (Holmes);

sociological jurisprudence, social interests, law in books v. law in action (Pound);

paper rules v. real rules (Llewellyn)

Key arguments and cases of legal realism

How realism differs from formalism;

Grand v. Formal Style (MacPherson v. Buick);

formalism and class interests (Lochner v. New York);

Pound v. Llewellyn: social interests v. no moral core;

from formal to substantive rationality