Law and Society chpt 1-5

Informal legal system

Informal legal system

Legal system based on tradition, custom, or divine authority

Max Weber's definition of law

External pressure, force, and enforcement by individuals

Categorization of law

Substantive, procedural, public, private, civil, criminal

Legal systems

Romano-Germanic, common-law, socialist, Islamic

Social conflict and stratification

Prominent during industrialization, urbanization, modernization, globalization

Developmental models

Primitive, traditional, modern societies

Natural law

Early European legal theory based on nature

Positive law

Analysis of actual laws

Interrelation of legal institutions and social order

understanding its meaning for the individual

and its reciprocal

System of law

Formal rules that govern a society

Formal legal system

Legal system that becomes more complex as society grows

Law and sociology similarities

-Study of values, norms, and social processes in society

-· Law is more objective and sociology is more subjective

-interpersonal relations

Difficulties in interaction

Challenges in terminology, methodology, and professional culture

Donald Black's definition of law

Governmental social control with penal, compensatory, therapeutic, and conciliatory styles

Functions of law

Social control, dispute settlement, social change

Dysfunctions of law

Conservatism, rigidity, restriction, discrimination

Consensus perspective

Stable system solving conflict and maintaining social order

Conflict perspective

Disharmonious system with ruling class control

Roles of sociologists

Understanding, critical analysis, praxis

Formal codified law

Informal controls aren't good enough

Regulatory systems aren't good enough

law systems become more complex

Karl Marx's theory of law

Law as a tool of ruling class control

Max Weber's typology of legal systems

Rational/irrational, formal/substantive

Sociolegal analysis

Understanding law in the context of social life

Contemporary approaches to law and society

Functionalism, conflict theory, critical legal studies, feminist theory, critical race theory

Dispute resolution

Primary function of courts

Types of disputes

Private, public-initiated, public defendant

Court system

Dual hierarchies with trial courts, appeals courts, and supreme court

Participants in the court system

Litigants, lawyers, judges, juries

Legislative bodies

Lawmaking, conflict management, integrative functions

Administrative agencies

Powers of investigation, rulemaking, adjudication

Law enforcement

Decentralized, bureaucratic, high discretion

Lawmaking perspectives

Rationalistic, functional, conflict, moral entrepreneur

Stages of legislative plan

Instigation, information gathering, formulation, interests-aggregation, mobilization, modification

Administrative rulemaking

Laws, rules, procedures created by administrative agencies

Judicial lawmaking

By precedent, interpretation of statutes, interpretation of the Constitution

Influences on lawmaking

Interest groups, public opinion, social science, social discord, scholarly research, mass media, social movements, artistic works

During which period did social conflict and social stratification become most prominent?

19th century

Sociological Jurisprudence

the study of law and legal philosophy

Substantive Law

group of laws that define rights and duties

Procedural Law

group of laws that define the methods for enforcing legal rights and duties

Private Law

law that involves suits between private individuals or groups

Torts

legal wrongs committed against a person

Crimminal Law

the portion of the law that defines public wrongs and provides for their punishment

code

an organized list of laws and rules

What is the principal function of law

maintains status quo by taking any ambiguity and balance in society

consensus perspective

A view of crime that sees laws as the product of social agreement or consensus about what criminal behavior is

primitive societies

-No well-developed political subsystems

-kin leader

-Council elders or chiefs and various religious leaders

Transitional Legal Systems

the law found in advanced agrarian and early industrial societies

Modern Legal Systems

legal systems marked by the rise and widespread use of administrative, constitutional, and statutory law

Barron de Montesquieu is best known for

separation of powers

Webbers 3 types of administration

class, status, power

Legal Realism

based on the idea that law is just one of many institutions in society and that it is shaped by social forces and needs

Emilie Durkheim

sociologist who used the terms organic solidarity and mechanical solidarity to describe different types of societies (author of the division of labor in society)

Oliver Wendell Holmes

-often considered one of the greatest justices in Supreme Court history

-Argued that current necessity rather than precedent should determine the rules by which people are governed;

-that experience, not logic, should be the basis of law.

donald black believes that law can be measured by

• Statutes

•Complaints

•Offenses

• Regulations

• Punishment

• Damages

Adjudication

the process of determining whether the defendant is guilty

private disputes

involve two individuals, neither of whom is part of the government

Public-initiated dispute

Occurs when the government seeks to enforce norms of conduct or to punish individuals who breach such norms.

what are judges responsible for

-interpreting the law

-assess evidence

presented

-impartial decision makers

shadow jury

An unofficial jury, provided by a jury selection firm, that sits in during the actual trial and deliberates at the end of each day to evaluate for the attorneys how each side is doing.

Jury Selection Process

An assembly room clerk will randomly select a certain number of people and then they go through the process of voir dire.

voir dire

Jury selection process of questioning prospective jurors, to ascertain their qualifications and determine any basis for challenge.

what ways legislation is generated

social unrest, particular incident, written recommendation

what triggers legislative response

a decision by the government to transform a policy initiative into a legislative proposal

administrative adjudication

the process by which agencies resolve disputes over the implementation of their administrative rules

ruling making vs. adjudication

-rulemaking means the agency process for formulating, amending, or repealing a rule

-adjudication is the formulation of an order which is seen as the final dispostion of an agency in anything not concerning rule making

What has happened to the rate of law making

getting faster due to how fast society is evolving

What are some difficulties that hamper communication between lawyers and sociologists

-language

-rhetoric law

-uncertainty about the involvement of other discipline

the cultural differences between sociologists and attorneys are mostly based on the methods each use in searching for

truth

What are some levels of society described by developmental models

psychological maturity, community, social institution

What are some public initiated disputes

criminal case, civil traffic offense, tax case

what increases the likelihood of legislative response

mobilized interest groups, the concern of unorganized public, no pressure to maintain status quo

Social Control

A method used by societal members to maintain order and predictability of behaviour

Internalization of group norms

process of adopting and accepting societal norms

socialization

process of learning and internalizing societal norms

negative sanctions

punishments or penalties for deviant behavior

positive sanctions

rewards or incentives for conforming behavior

informal social controls

unwritten rules and norms that guide behavior

folkways

customary norms of common practices that are learned as you age

homogeneous societies

societies with a similar or uniform population

formal social controls

institutionalized systems and agencies for maintaining social order

specialized agencies

organizations dedicated to enforcing formal social controls

retributions

punishment as a form of payback or revenge

incapacitation

punishment to prevent further harm by removing the offender from society

Deterrence

punishment to discourage criminal behavior

Civil commitment

noncriminal process of involuntary institutionalized for treatment

victimless crime

criminalized acts where harm occurs primarily to the participating indivduals

crimes mala in se

crimes that are inherently immoral or wrong

crimes mala prohibita

crimes that are prohibited by law but aren’t inherently immoral

white collar crime

economic crimes committed by individuals in business settings

intelligence gathering agencies

government organizations responsible for collecting and analyzing information

institutionalized social control

systematic control of dissent through government intelligence systems

administrative law

control of behavior through licensing, inspection, and publicity

licensing

official permit to engage in a specified activity

inspection

regular monitoring of activities by relevant agencies

threat of publicity

using negative publicity to deter undesirable behavior

Examples of folkway

manners, dressing appropriately, proper eating behavior

Mores

moral norms that are often linked to religious rules and if broken are seen as immoral

Example of mores

lying, cheating, substance abuse , plagiarism

Mores vs. Folkway

folkways are more customary norms that are instilled as you grow up

mores are more stricter

mores are more likely to be culturally universal