SOC Exam One

Four Schools of Thought leading to sociological movement in law

Natural Law, Rationalism & Enlightenment, Legal Formalism, Sociological Jurisprudence & Legal Realism

Natural Law

The idea that law should be rooted in rules intrinsic to human behavior and follow the law of nature. Takes a moralist approach, viewing things as inherently right or wrong, often from a religious perspective. Issue is it lacks nuance by treating issues in black-and-white, and ideas rooted in religion can be difficult to verify or challenge.

Rationalism & Enlightenment

18th- and 19th-century Enlightenment turned away from tradition and religion toward logic and science. Separated law from the religious foundations of natural law traditions, secularizing and rationalizing law. Rationalization developed differently in Europe (Civil Law Tradition) and in England/US (Common Law Tradition).

Civil Law Tradition

tradition that developed in Continental Europe, written legal codes created by legislatures.

Common Law Tradition

tradition that developed in England/US. Common law reasoning is based more on past precedent.

Legal Formalism

Legal theory that looks at law as a self-contained system separate from politics and based on general principles that are accessible to reason and allows judges to come to uniform decisions. Also called “slot machine justice” where every case falls within a rule and if you put in the facts the logical decision will come out. Formalism completely ignores real world social or economic context.

Birth of Law and Society

Roots in rebellion against legal formalism, which was said to be too rigid in dealing with social context

Sociological Jurisprudence & Legal Realism

Two different but related schools of thought that developed in opposition to legal formalism.

Sociological Jurisprudence

Argued that good law requires understanding social context and that judges should produce “just outcomes” and serve social interests. Gave way for law to be involved with public policy.

Roscoe Pound

Scholar most associated with sociological jurisprudence.

Legal Realism

An approach influenced by sociological jurisprudence that argued we must focus on how laws were applied in reality. Considered beginning of sociology in law. Rejection of idea that law is independent of poitics, that judges should not make public policy, and that law on books is the same in action.

Oliver Wendell Holmes Jr. and Karl Llewellyn

Main scholars associated with legal realism

Metatheory

A theory addressing the question: why do we have law

Three Metatheoretical Models

Cultural Model; Structural Model; Conflict Model

Cultural Model

The idea that the legal system is derived from a society's values, norms, customs, and beliefs. Shared norms are law. Key authors include Malinowski, Bohannon, and Sumner

Branislaw Malinowski

Studied cultures that lacked modern state structures. He argued that people in these societies organized their lives according to implicit rules of behavior that functioned like law because they maintained social order. His idea of law required no system of government or institution. If it was socially agreed upon, he considered it law.

Paul Bohannon

Also cultural, but made a distinction between custom and law saying that customs must be reinstitutionalized within legal institutions to be considered law.

Bohannon Double Institutionalization

Process by which a pattern of behavior first becomes institutionalized as a custom and is later formally re-institutionalized and given special status as law. This process takes time because legal institutions must recognize cultural changes, agree about their desirability, integrate them with existing legal rules, and communicate them throughout the legal system.

Bohannon Cultural Lag

The time gap between when something becomes institutionalized as a custom and when it becomes re-institutionalized as law, causing law to sometimes be out of step with culture.

Graham Sumner

Said “law-ways cannot change folk-ways,” representing the extreme culturalist position that laws conflicting with custom are doomed to fail.

Cultural Model & Legal Effectiveness

The cultural model argues that the farther a law departs from cultural consensus, the less likely it is to be effective.

Structural Model

Looks at the form of law law as being determined by the structure of a system and the systems material needs. Looks at society as a complex system where everything has a purpose, everything is linked to everything else. Key author Schwartz

Structural / Functional Imperatives

The material needs or challenges that a society must satisfy in order to survive.

Three primary ways law helps society meet functional imperatives

Coordination, conflict resolution, social control.

Coordination

Structuralist idea of how law meets functional imperatives, says law provides a way of coordinating people and production within a complex social system, such as through traffic or contract law.

Conflict Resolution

Law provides a way of resolving conflicts.

Social Control

Law provides a way of ensuring that people do not engage in behavior that goes against the common good.

Structural Equivalents

Nonlegal structures or institutions that accomplish the same functions as law.

Key Factors Structuralists Study

Population size; role structure; property ownership.

Population Size & Structuralism

Structuralists predict that larger populations produce more complex legal systems because interactions become more complicated and anonymous, increasing potential conflict and the need for coordination/conflict resolution.

Role structure & Structuralism

A structuralist might predict that the more simplex relationships in a society, the more complex the legal system. As multiplex relationships lead to more informal social control, and without that you require a more formal system to maintain order.

Multiplex Relationships

Relationships in which individuals play many roles and have many types of interactions with one another, creating informal opportunities to explain norms, exercise social control, and resolve disputes.

Simplex Relationships

Relationships in which individuals generally play only one specialized role toward one another, making formal law more important for resolving problems.

Property Ownership & Law

Structuralists might predict that societies with private property have more elaborate legal systems than societies with collective property. Private property creates possessions that people need to protect and increases privacy, making people less dependent on the community and reducing informal communication and social control.

Richard Schwartz's Study

Studied two Israeli settlements which were founded at the same time, of similar size, culture, political orientation, climate, and were both based of mixed farming. However, they had different social and economic structures. These small structural differences led to completely different legal systems, serving as support for the structural model.

Schwartz's Explanation

Schwartz explained the differences through social and economic structure and concluded that more complexity in law arises as a substitute for a lack of informal social control.

Kibbutz

daily face-to-face interaction, no private property, no formal legal system, and primarily informal organization/conflict-resolution.

Moshav

private, family-based interactions, some private property, a formal legal system, and less informal organization.

Functionalism

A school of structuralism that sees existing social conditions as serving useful and beneficial roles in society.

Durkheim

Functionalist who argued that law serves the primary function of promoting social cohesion.

Durkheim's Two Types of Law

Repressive (punitive) law and restitutive (cooperative) law.

Durkheim's Social Structure

Social structure (i.e size, diversity of experiences, degree of specialization) determines law.

Repressive Law

The purpose of punitive law is to punish those who violate the collective rules and customs. In these societies social order is maintained through mechanical solidarity.

Mechanical Solidarity

A cohesive bond created by people learning and sharing the same sets of rules and customs.

Restitutive Law

The purpose of cooperative law is to coordinate activity, and it is more common in complex societies with large, heterogeneous populations and a complex division of labor. In these societies social order is maintained through organic solidarity.

Organic Solidarity

A form of cohesiveness based on interaction and interdependence rather than homogeneity and a uniform set of values.

Durkheim vs. Cultural Theories

Cultural theories emphasize common norms as the source of law, while Durkheim argued that in modern societies, the lack of common norms contributed to the development of law.

Structural Model — Empirical Critique

Societies with similar sizes and levels of development can have different legal systems, while societies with different sizes and levels of development can have similar legal systems.

Structural Model — Moral Critique

Structural models can ignore the moral aspects of law, in reality people experience law as having a moral element beyond practical functions.

Structural Model — Power Critique

Structural models assume that laws serve everyone's purposes without considering differences in power or class, and how preserving order for one aspect of society might adversely affect another.

Structural Model — Existing Order Critique

Structural models can justify the existing social order because assuming that law is necessary and beneficial implicitly assumes that existing laws are good.

Conflict Model

Sees law as promoting the interests of the dominant social group at the expense of the opressed/subordinate groups. Does not see law as neutral, objective, or beneficial to everyone.

Consensus Models

includes both the structural and cultural model because both see law is a mechanism for integrating people's acvitivies, socially beneficial, and a product of collective consensus

Moral Functionalism

Turk claims the consensus perspective operates off of “moral functionalism” which sees law as reflecting shared morality and functioning beneficially for society.

Karl Marx

Argued that the economic base determines the form and content of the legal system.

Economic Base

The means of production, forces of production, and relations of production.

Means of Production

Machinery and materials used in production.

Forces of Production

Technological knowledge used in production.

Relations of Production

Social structures of domination in the workplace.

Marx On Western Legal Institutions

Argued they were created primilarty to protect and promote capitalism, not social solidarity.

Two Schools of Conflict Theory

Material Conflict Theory and Cultural/Ideological Conflict Theory.

Material Conflict Theory

The view that legal conflicts are struggles over material rewards, including society's productive activities, wealth, and other resources.

Austin Turk

A material conflict theorist who identified five ways that law enhances dominant-group control.

Five Forms of Power in Turk's Theory

Coercive power; economic power; political power; cultural/ideological power; diversionary power.

Coercive Power

Only the state/group in charge can legitimately use force (arrests, imprisonment, declarations of war) to make people do things

Economic Power

The law can erode or enhance economic power but affecting how materials are distributed (ex. Tax laws)

Political Power

Law can affect political power by giving it to elites (voting restrictions/congressional districts)

Cultural/Ideological Power

Law can provide frames of reference for how we should think about the world (private property, citizenship)

Diversionary Power

Law determines the forum for addressing grievances (claims in court), in this way it can also distract from other ways of airing greivances that might be more affective

William Chambliss

A material conflict theorist who studied the development and use of vagrancy statutes in England during the transition from feudalism to a market-based economy relying on wage labor. He argued that changes in the vagrancy laws reflected changes in England’s economic and social structure.

Vagrancy

The crime of being homeless or unemployed and wandering from place to place.

Vagrancy Laws — Step 1

The law initially prohibited giving food or shelter to needy people outside the community so churches could focus on people within their own communities.

Vagrancy Laws — Step 2

The law was updated to prohibit providing food or shelter to anyone able to work. Following the Black Plague and England's economic transformation, serfs were fleeing feudal obligations for wage labor, so the law helped force people to remain working for landowners for low wages.

Vagrancy Laws — Step 3

The statute was later updated to focus on reducing criminal activity. By this point, the feudal system had largely disappeared, so the law was adapted to address the new market-focused social problems.

Conflict Theory Interpretation of Vagrancy Laws

Conflict theory interprets the changes in vagrancy laws as attempts to implement the interests and agenda of groups in power.

Cultural/Ideological Conflict Theory

The view that legal conflicts are struggles over whose beliefs and customs will prevail.

Gabel & Feinman Contract Law

Scholars associated with the cultural/ideological conflict perspective who discussed contract law. Contracts used to be taken to court to determine whether or not the bargain was fair, this was not a good thing for capitalism/sellers. Then the idea of free contract emerged saying a contract was a shared agreement entered to by either party with no coercion.

General Idea of Ideological Effect of Law

The idea that law can influence the likelihood that people understand the world in one way rather than another.

Surrogate Mother Example

Shows importance of ideology, could be looked at as a service contract or as baby-selling.

Three Ideological Effects of Law

Mystify and distort social relations; legitimize elite domination; construct and reinforce hegemonic social forms.

Mystify & Distort Social Relations

Law can misrepresent social reality in ways that make it harder for subordinate classes to formulate competing models for organizing social life.

Legitimates exercise of elite power

Laws can make elite domination appear legitimate because they are created through procedures that seem fair, allowing for elite power to “punish” those who step out of line. Gets people to accept certain stuff they might not

Construct & Reinforce Hegemonic Social Forms

Law provides ground rules that become the basis for taken-for-granted systems of social relations. Ex. The capitalist system is based on legal consturcts of private property, corporations, contracts.

Hegemony

Ability of certain dominant ideas and practices to structure social life so thoroughly and so fundamentally that they hide or invalidate the possibility of alternative forms of social organization

Conflict Theory — Control Mechanism Critique

Conflict theory can be vague about exactly how ruling groups control law and courts because it does not provide specific mechanisms.

Conflict Theory — Consent Critique

Conflict theory does not completely explain why people seem to accept manipulation of the legal system. Hegemony is used to counter this saying people may accept existing systems because they are so accustomed to it they cannot imagine another way of organizing society.

Conflict Theory — Contrary Laws Critique

Conflict theory must explain laws that appear contrary to the interests of capitalists. Conflict theorirists might counter that the ideological effect of law would be weakened if it were too obviously controlled.

Vagrancy Laws — Cultural Perspective

As society became more complex, customs had to be re-institutionalized as law to reinforce new cultural norms about feudalism or resocialize groups that had not accepted those norms.

Vagrancy Laws — Structural Perspective

New laws emerged as changes in the social structure threatened social solidarity. The new economy + plague threatened to pull the traditional social relationships of fuedalism apart. The new laws are seen as solving new structural problems of coordinating labor force and affording labor in a new market.

Cultural Model Critiques

1. Societies with similar cultures can have different legal structures, and vice versa. Example: US vs. Japanese litigation norms.

2. Some laws conflict with custom (cultural lag).

3. Assumes complete consensus, doesn’t consider differences in power and which social group might pass laws claiming the reflect everybody’s values.

US vs. Japanese Litigatoins

Used as an arguement against the cultural model because it says that despite having similar cultural preferences for avoiding litigation, the Japanese legal system is severly underdeveloped as compared to the overdeveloped American system