SOC 155 Midterm

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Jurisprudence

the theory or philosophy of law

Formalism arose when, how, and from who….

the 19th century, in relation to the rise of law schools, Christopher Columbus Langdell

Role model for Langdell’s formalist approach to law

Charles Darwin

Conceptualism

the idea that the entire body of legal rules should be grouped in broad categories of types of cases and governed by simple principles derived from from prior case law

Torts

Cases involving a non-criminal wrongdoing

the common law

where judicial decisions or case law create legal “precedents” that guide future rulings

Summarize the “Formalist” Jurisprudence

A legal theory emphasizing strict adherence to established rules and procedures in the application of law, prioritizing logical reasoning and legal precedents over social considerations. Emphasis on “value neutral”.

Who were the critics of Formalism and why?

Oliver Wendell Holmes - he felt that a jurisprudence based exclusively on logic would fail to take account of forms of knowledge coming from human experience.

Roscoe Pound - compared formalists to monks, and states that being closed off and excluding human elements is unpractical

Role of Judges in Formalism

Source of decisions comes from legal precedents set by case law. Must be value neutral. Judges shall declare the law not make law. Judges must act like machines in the sense that they only consider the findings of the case and relevant case law, nothing else.

Relationship between law and society in formalist view.

Law should be autonomous from society, not influenced by fads and fashion.

Must be a strict divide between “law” and “policy”. Policy refers to the outcome of political processes in legislatures and the executive branch, and courts should not make policy. Courts job is to provide a check on whether law squares with established legal principles.

Pragmatism

Based on and real-world applications of law, emphasizing flexibility and adaptability over rigid adherence to rules. Inductive reasoning, views knowledge of bottom up understanding of how world works. Understanding how law works in action, not just in books.

Core Claim of Realism

A call for an understanding of law that is based upon “reality”—the actual way in which law works in society.

What does “indeterminacy of law” mean to realists?

Legal rules are often vague, conflicting, or open to multiple interpretations. This makes it difficult to predict legal outcomes purely based on written laws. Because laws can be interpreted in different ways, the individual traits, experiences, and values of judges inevitably influence their decisions.

For realists, like Karl Llewellyn, the rules of law could not be used in the manner formalists prescribed because they are "indeterminate." What did he mean by that?

 

The rules of law do not compel outcomes in particular cases

The three different types theory in the social sciences are

Processual, Sensitizing concepts, Causal

How can the law vary (legal variables)?

What are some social variables associated with them?

severity of punishment, arrest rates, sentencing guidelines, criminalization of behavior, legal access, rate of civil litigation

race, socioeconomic status, education level, gender, political climate, urban vs. rural

Mechanical Solidarity is associated with

repressive punishment, Collective Conscience (shared moral view)

Organic Solidarity is associated with

Restitutive Punishment, Interdependence (contracts)

What is the multivariate mode of inquiry is centrally concerned with?

Understanding the relations between variables

What is the multivariate mode of inquiry focused on identifying?

Causal relationships

What are Donald Black’s 4 propositions?

Law varies inversely with other forms of social control (Where families or communities regulate behavior strongly, formal law is used less. Ex: Tight-knit religious communities relying on internal mechanisms instead of courts)

More stratification produces more law (Greater social inequality leads to more use of law to regulate and control behavior. Ex: Highly unequal societies often have more policing in disadvantaged areas)

Downward law is greater than upward law (Legal enforcement is more likely against individuals of lower status than against those of higher status

Law increases as intimacy decreases (as people become more distant, the likelihood of legal intervention in conflicts between them increases.)

What did Donald Black mean by saying the law is a form of “government social control”?

law functions as a formal method by which the government enforces norms, resolves disputes, and maintains order

What is the interpretive mode of Inquiry focused on?

Understanding the meanings that individuals attach to their social experiences. Orientation to meaning and generating sensitizing concepts. Originated in Weber’s approach to Sociology.

Sensitizing Concepts

use a general sense or orientation to guide researchers in understanding and exploring social patterns.

Formality

Refers to whether legal decisions follow set procedures or rules (e.g., written laws, codified standards). Defined sequence of steps or procedures applied consistently.

Rationality

Refers to whether decisions are made based on coherent, universal principles rather than personal whims or tradition. Decisions derived from abstract principles of justice applied logically to a case

Substantive

means that the decision of legal problems is influenced by norms different from those obtained through logical generalization of abstract interpretations of (legal) meaning.

Irrational

Decisions rely on ill-logical mystical, unique characteristics of decision- maker. Key: not replicable

“Legality”

Legality is the social experience and cultural meaning of law—how people understand and engage with legal power in everyday life.

Before the Law

Law is seen as majestic, impartial, and authoritative. People feel small but respectful toward it.

With the Law

Law is seen as a game to be played strategically. People use legal rules to their advantage, if they can.

Against the Law

Law is seen as an oppressive force to be resisted or avoided. People feel powerless and use subtle acts of defiance.

Example of Substantive Irrational

King Soloman

Example of Formal Irrational

Oracle

Example of Substantive Rational

Early Accident Industrial Law

Example of Formal Rational

Sentencing Grids (Sentences based on current offense and criminal history)

A judge requesting an assessment by an accounting expert to determine how much Trump Corporation should be fined is employing which of Weber's type of approach to legal decision-making?

 

Substantive Rational

When a researcher uses general theory to guess what the outcome of a multivariate analysis it is called

 

Hypothesis testing

Historical Mode of Inquiry

Intersection of law and the processes that unfold to cause change

Historical Materialism

History is driven by material conditions—especially the organization of economic production and class relations. Human consciousness and ideas are shaped by material life, not the other way around.

Base: The economic foundation of society - how goods are produced and distributed.

Superstructure: Everything built on top of the base, including law, politics, culture, ideology, religion, education, and media.

Commodity Form

Inspired by Marx’s “base,” this refers to the way goods and services are exchanged in a capitalist society.

Pashukani’s View

Challenges the idea that law is neutral; he sees it as deeply connected to capitalist economics and resistant to change without economic transformation. Capitalist law: Guarantees formal equality that is coded in law but masks inequality in society.

Friedman and Ladinsky

Studied the shift from the fellow-servant rule to workmen’s compensation laws in industrial societies. Show how specific legal doctrines changed due to multiple pressures—not just ideology, but practical concerns, cultural shifts, and systemic needs.

Formalist model of judging

R+ F → D (Rules and Facts formulate to Decisions) (Ought)

Realist model of judging

S + P → D (Stimuli + Personality of the Judge formulate to decisions) (Is)

Rule Skepticism

Judges frequently have different interpretations of the same rule, contradicting the formalist view that law is applied mechanically from rules to outcomes.

Fact Skeptism

Facts are often contestable. Since decisions depend on how facts are understood, this undermines the formalist belief in predictable, rule-based judging.

Cognitive Illusion

systematic error in thinking—a mental shortcut or bias that leads people to make irrational or incorrect judgments

Anchoring

Making estimates based on irrelevant starting points. Ex: A judge might give a higher damages award if they first see a very high suggested figure, even if it’s arbitrary.

Hindsight bias

The tendency to see events as more predictable after they have happened than they actually were beforehand. Ex: Judges might overestimate how foreseeable a harmful event was when evaluating liability.

Egocentric Bias

The tendency to view one’s own judgments, perspectives, or contributions as more fair or accurate than they really are. Ex: A judge may overestimate the neutrality or fairness of their own decisions.

Construct Elaboration

new set of rules (foundation) and tying to laws that are already established

Domain Expansion

sometimes as courts weigh in on construct they don’t only narrow → they also can become broader

Instrumentalism

Law is based upon customs, court-centered,

Settling

the process by which a consensus emerges among judges about the scope and meaning of a legal rules

6 Things Need to consider before declaring that a law had an effect:

1. History: other contemporaneous things (other facts) that could cause accident to go down (less confidence it was law) – ability to rule stuff out

2. Maturation: when there are preexisting trends that are improving (safety) already that is why you see drop (instead law); Are there improvements in other things that lesson the likelihood of fatalities?

3. Testing: Are the changes observed attributable to greater awareness and not to the policy change per se?

4. Instrumentation: Are changes in the behavior the result of the way the behavior is measured?

5. Instability: certain kinds of behaviors (and their measures) tend to be jagged; rare occurrences

6. Regression to the Mean: Is the drop a result of the phenomena known as “regression to the mean”?