Legal Studies Midterm 1 Flashcards

What is the difference between a normative and an empirical claim? Define and give an example.

A normative claim is a statement that asserts a value judgment or a standard about how things ought to be when evaluating reality.

• Ex: The voting age should be lowered to 16, as high school children should have greater influence on policies that will significantly affect their generation.

An empirical claim is a statement whose truth can be verified or falsified by gathering real, measurable data and evidence.

• Ex: Running three times a week consistently reduces one’s risk of heart failure by 10%.

What is a policing framework vs a therapeutic framework? Why does it matter and what did we read about it?

A policing framework focuses on maintaining order and compliance through control and punishment. In contrast, a therapeutic framework rehabilitates and heals individuals who break the law. This distinction is important because it shapes public policy, which often teeters between care and control.

(find readings)

What are base and superstructure? Who uses this concept? Why? How does law play in?

‘Base’ and ‘superstructure’ and concepts theorized by Karl Marx to explain the overall structure of societies. ‘Base’ refers to the economic foundation of society, which includes both the means and the relations of production. Built upon the base is the superstructure: all of the aspects of society not related to production, which both emerge from the economic system and reinforce it. Thus, in this framework, legal systems are not neutral but shaped by material and class interests.

What are “law on the books” and “law in action”? Explain the concept and give an example or two of the difference.

“Law on the books” vs “Law in action” is a theoretical concept that alludes to the difference between codified law and what happens in practice. It is a concept that explores who the true subjects of law are, which laws are truly enforced, and the extent to which enforcement occurs. 

For example, a law that prohibits individuals from smoking marihuana may be excessively enforced in predominantly Black neighborhoods. Such a phenomenon could be based on stereotypes that Black people are more likely to smoke, influencing law enforcement to ignore white neighborhoods (where individuals may indeed smoke), and disproportionately criminalize marginalized groups. 

What are mechanical and organic solidarity? Who uses this concept and what was he explaining?

Mechanical and organic solidarity are terms used by Emile Durkheim to describe what he called ‘primitive’ and ‘modern’ societies, respectively. Mechanical solidarity refers to social cohesion resulting from the low division of labor within pre-industrial societies. Organic solidarity describes the interdependence of individuals in the high-division-of-labor societies of the post-industrial era. Durkheim used these elements of society to explain how law moves from repressive to restitutive as societies become more complex and cooperative.

Draw the table that elaborates Weber’s typology of legitimate authority with an example in each cell.

What is the iron cage of bureaucracy? Who uses this concept? Why?

The “iron cage of bureaucracy” is a term coined by Max Weber that refers to the detrimental impact of the rigidity of law in legal-rational systems. Weber suggests that elaborate systems of rules and regulations are dehumanizing, bringing order and predictability but restricting creativity and humanity. Members of bureaucratic societies lose their individuality and autonomy, becoming cogs in a bureaucratic machine with no understanding of how to operate in outside environments.

Tell me about the Industrial Revolution—when was it, what do we mean by it, and why is it important for law and society?

The Industrial Revolution was a period of time between the 18th and 19th centuries when societies transitioned from agrarian economies to industrial production. It transformed class structure, urban life, and led to both societal progress and new forms of inequality. As a result of its material transformation of interpersonal relationships and institutions, the need for law to adapt and address novel issues (e.g. labor + property rights, regulation) grew.

What is double consciousness? Who uses the term and what for?

“Double consciousness” is a term coined by W.E.B. DuBois that refers to the experience of having two warring identities. In its original form, it captures the experience of Black Americans, who were forced to see themselves both through their own cultural lens and through a society that denied their full humanity. While rooted in the Black experience, the concept aptly applies to other marginalized groups who negotiate their identities within a dominant culture.

What is legal realism?

Legal realism is the view of law as it is practiced, not as it is written. It is a legal methodology that incorporates the highly unpredictable and human elements of reality––judicial bias and legislative policy, for example––that influence judicial decisions. Legal realism challenges the premise of legal formalism, suggesting that the personal beliefs, unconscious biases, and social context in which judges operate influence their decisions, despite the legal ideal of true objectivity.

What is intersectionality? Who uses it and what does it show us?

Intersectionality, developed by Kimberlé Crenshaw, examines how overlapping identities interact and shape experiences of oppression. Her framework challenges the idea that discrimination can be understood by investigating single identities at a time, instead highlighting the effect of multiple marginalized identities. Furthermore, it reveals how systems of power intersect to create unique and often overlooked forms of disadvantage.

What is legal rational authority? Who uses the term and why?

Legal-rational authority is a term used by Max Weber to describe societies where authority is derived from a collective belief in formal laws and rules. Individuals obey this authority not because of personal allegiance or tradition, but because it is grounded in an established legal framework. Legal-rational authority is bureaucratic in nature—it separates the authority of the office from the person in the office.

What are norms? How do they relate to law?

Norms are collectively accepted standards and moralities that guide social behavior. Emile Durkheim’s “cultural consensus” model highlights their link to law, suggesting that law is merely the “codified set of rules that emerge from shared social norms.” In this way, law and society are cyclical: law arises from shared moral beliefs while, in turn, shapes them.