Legal Final Section 1 terms

Max Weber

political sociologist who placed his focus on rational and irrational legal systems.

Rationalization (for an individual)

-Methodical style of life

-Means-ends calculations to get to ultimate goal

-Base our calculations on the predicted behavior of others

-Example: education

Rationalization (for society)

For society:

-Institutions governed by formal rules

-Application of those rules leads to greater efficiency in pursuing the institution’s goals

Example: factory work

Rational Legal Systems

-Means for settling disputes defined by rules.

-Rules are arranged to form a “logically clear, internally consistent, gapless system.”

-Rules are general and abstract rather than mired in particular facts. Decisions are “controlled by the intellect.”

Irrational Legal Systems

-Disputes are settled arbitrarily. Multiple, different rules can govern a particular case.

-Rules are bogged down in particulars, making them seem arbitrary.  

-Decisions arrived at by use of magic, oracles, dice, revelation, intuition.

formal

procedural/present focused

Substantive

value-laden/future focused

Formal irrationality

Prophetic revelations, trial by ordeal, oracle

Substantive irrationality

Judgment based on personal opinions of the judge.

Formal rationality

 Law is based on logically clear, internally consistent rules, decisions reached through deductive process.

Substantive rationality

Law systematically oriented towards non-legal norms (religion, ethical).

Trial by ordeal

trial by means of torture, for example if a person could stick their hand in boiling water and not get burnt then they were innocent.

Arbitration

a legal process where a neutral third party resolves a dispute between two or more parties. It's often quicker and less expensive than going to court.

Plea bargaining

 a legal agreement where a defendant pleads guilty to a crime, often a lesser charge, in exchange for concessions from the prosecutor, such as a reduced sentence or dismissal of other charges, to avoid going to trial and the uncertainty of a jury verdict.

The end of law (Perschbacker and Basset)

-Less experience with law for practitioners and the public

-Non-typical cases get litigated publicly, most others are settled

-Precedents are "missing" from the law

-Law enforced inconsistently

Explain the conditions for the rationalization of the law:

1. Development of Capitalism and Bureaucracy

2. Rise of Formal Legal Expertise

3. Emphasis on Formal Legal Reasoning

4. Development of a Rule-Based Legal System

Explain the decline of civil and criminal trials:

Cases are not going to trial because people are taking plea bargains

-Can plead to lesser charge or plead to the charge with guarantee of prosecutorial leniency

-Negotiated between prosecutor and defense attorney

-90-95% of criminal convictions come out of plea bargains

-Mandatory sentences are more likely to make defendants plead

Karl Marx

Society has 2 fundamental aspects: base and superstructure

Economic relationships

Communism

Base

The way the economic base works -how stuff is made- there is an exchange of labor for money, which benefits the rich in society

economic inequality

Most wealthy vs everyone else

Superstructure

Everything else that helps maintain economic relationships 

EX: law, education, politics, media, religion, & culture

Critiques of Marx

1. Overly Simplified Class Structure:

• Critics argue that Marx's view of society as divided into a simple class structure of capitalists and proletariat is outdated and doesn't reflect the complexities of modern societies. 

• Modern class structures are far more nuanced, with a wide range of intermediate classes and social groups.

2. Economic Determinism and Lack of Free Will: 

• Marx's focus on economic forces as the primary driver of history has been criticized as a form of historical determinism. 

• This view downplays the role of individual agency, human choice, and the influence of non-economic factors like culture and ideology

Kelo v. New London (2005)

Eminent domain: The government's power to take private property for public use for 

fair compensation, Contained in 5th amendment to US constitution

The question before the supreme court:

Does a city violate the fifth amendment if it takes private property and sells it for 

private development, with the hopes that the development will help the city's bad economy?

Supreme court affirmed this question

One-shotters

people who rarely bring lawsuits/rarely interact with the law, focus

on their current case because it's most likely going to be their only case

repeat players

appear in court often, play to create favorable rules/precedent about long-term victories more than current case outcome.

Explain the role of law in the superstructure:

Marx thought that law is exploited by the elite in society to help the rich and further economic inequality

-Law creates and reifies private property

-Law gives the appearance of neutrality

-Law creates precedent

Explain the Kelo decision and its backlash:

More than 40 states have passed either constitutional amendments or statutes that 

reformed their eminent domain laws to better protect private property rights.

Nine state high courts restricted the use of eminent domain for private development.

Explain why repeat players tend to be advantaged in the legal system:

Repeat players tend to be advantaged because they are more experienced in the legal system because they are involved in it much more often than the one-shotters

Collective conscious

-Sacred and not observable. 

-It is expressed in law, which can be observed and measured

-Social morality is encoded in a society's collective conscious

Repressive law

 goal is punishment, simple societies

Resitutive law

goal is restitution, complex societies

Simple societies

Simple societies that have low division of labor, little human diversity, 

and mechanical solidarity believe all rules are sacred; violations of any kind are seen as violations of the collective conscious, and affirms repressive law

Complex societies

Complex societies that have high division of labor, 

significant human diversity, and organic solidarity believe fewer rules are sacred; 

have more legal conflicts that are private and interpersonal and affirm restitutive law

Last words/meals (Durkheim’s interpretation)

He would be upset with our modern executions but would say that last meals and last 

words being published publicly is a smaller way to reinforce the collective conscious

application of Durkheim theory on capital punishment-

Rationalization of the death penalty 

Reinforcing collective conscience of society, and if you break the law this is what happens

Now highly institutionalized process that takes place not in public

Salem witch trials

The collective conscious had been weakened over the course of the 

17th century by political, economic, religious, and environmental changes so the salem witch trials were a way that the collective conscious was reaffirmed

Rationalized executions

End life as quickly as possible

Minimize resistance

Little to no display of emotion

The method, location, length, and procedures have changed in order to make 

executions more rational

Theory of crime and punishment

-Crime is normal; societies cannot function without it

-Crime elicits a punitive response, and punishment is a mechanism for showing the 

collective conscious still exists

-Punishment is expressive and ritualistic. It has to be observed by members of a 

society in order to fulfill its function

-Through defining and punishing crime it helps society reinforce its collective morality