Legal Studies 206 Midterm 1

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

Example.

Normative: Creating or evaluating moral standards. An attempt to figure out what people SHOULD do or whether their current moral behavior is reasonable.

Example: Murder is morally wrong

Empirical: Something that can be studied or proven. Claim that, in theory, has a right/wrong answer: hypothesis, verifiability, replicability.

Example: An increase in available resources at a school directly results in higher rates of success for students (provable)

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

Start off with the fact that this is MARX's concept

The base is the economic foundation of society and includes the means of production and the relations of production. The superstructure of society is everything that is built on that base, such as law, family, politics, media, education, and religion. Karl Marx uses this concept because he believed that a society's basis is its economic system (e.g. capitalism, socialism) and that the relations/means of production would form and influence all else, including law. The economic base shapes the law, but law also maintains and legitimates the economic base, such as a capitalist health care system for a capitalist economic base.

Base shapes superstructure, superstructure legitimizes the base (through form of law, reinforcing the base).

Capitalists want workers to work 20 hours but law → 12 hour days

Capitalists still get around this by not enforcing, etc.

What is "law on the books" and "law in action"? Explain the concept and give an example or two of the difference

'Law on the books' & 'law in action' A concept that allows us to examine the difference between codified law and what happens in practice to assess variation in who is really subject to law, what laws are 'really enforced,' and to what extent.

What the law says versus what actually happens in practice

Example of this:

Marijuana

Law in the book:

Strict marijuana laws are designed to deter Americans from using marijuana in the first place.

Law in action:

Disproportionate amount of minority groups (black) have been convicted and sentenced to jail despite the fact that users include both white and minority groups.

Basically white people smoke weed; black people and others smoke weed but white people don't get caught as often.

The law has evolved into a way of sending minority groups to jail rather than to deter americans from using marijuana.

EVERYONE STILL SMOKES WEED LIKE BEFORE.

What is the difference between repressive and restitutive law? Who uses this concept and what was he explaining

Durkheim: Punishment/Law in Changing Societies

The function of punishment is unchanged throughout history, but the way we punish has changed.

Repressive laws: demonstrating sanction for violating moral order. Designed to cause suffering

Punishment is physical (branding), designed to reaffirm social value (reinforce violated social norm) to hold us together. Primitive

Onlookers reaffirming social value because onlookers see this.

Durkheim argues severe punishments aren't useful today because punishments shouldn't be carried out to make ppl suffer but to reaffirm social solidarity.

Restitutive laws: with goal of reinstating the social/moral order (Restitution). Bring society back together.

Punishment attacks what we value (since we value interdependence, punishment is prison -- forced removal from society).

Explain legitimate authority according to Weber

Weber's concept that different kinds of societies have different kinds of leaders have different justifications for their leadership - charisma (capacity to give gifts), legal rational authority (rules about who gets elevated)

Three different kinds of authority: Traditional, Charismatic, Legal Rational

Traditional

Justification for Authority:

Sacred tradition; hereditary -

ex) monarchs/kings

Characteristic structures:

The person IS the office. The King IS the authority.

Charismatic (can shift to monarchy or legal rational)

Justification for Authority:

Emotional attachment to leader

- ex) Jesus Christ, Hitler

Characteristic structures:

Discipleship (devout followers)

Legal rational authority

Justification for authority

Legitimacy of legally enacted rules

Characteristic structures:

Bureaucracy:

The person and the office is separate.

Obama has no power; the PRESIDENT has power

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

WEBER:

Why? In societies that are characterized by legal-rational domination, the drawback/possible failing is that we can enter the iron cage of bureaucracy

Iron Cage of Bureaucracy: When Bureaucracy has gone wrong, but isn't failing. (Rules become so overwhelming that there is no attention paid to outcomes/morality)

Technical ordering

Rigid, dehumanized (strict, no exceptions)

Iron cage: you were sick so you missed the deadline, but they won't accept your paper. Never depart from rule on the books

Well functioning bureaucracy: have some exceptions in law

Rules, laws, bureaucracy without morality

NO choices/few choices

Ex) even if I am in a power of position, I can't break from rule even if I see the need to break from it

Loss of individuality

Ex) system won't allow office worker to break from rules

Loss of autonomy (for the bureaucrat)

Impossible to participate in society absent an bureaucratic structure.

Need job to earn money

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 began during the early 19th century

Massive social transformations:

Individualism, science, urbanization, factories/hourly wage, etc.

Led to the need to reinterpret society and the laws that shape it

This was attempted by Durkheim, Marx, and Weber

Durkheim: Distinguished this newly formed "modern" society from "primitive" society because the development of restitutive law has superseded repressive law, but worried collective conscience might break down with such rapid industrialization.

Marx: Disillusioned by the upheaval of society based on the new ruling bourgeoisie class and their exploitation of proletariat workers. Notices how law is used by ruling class to their advantage, and is part of a superstructure that reinforces the base.

Weber: Recognized that rationalization was important for this advanced social order, and that these modernized states utilized legal-rational authority that could lead to an iron cage, rigid regime of laws.

What are the rules of a bureaucracy?

A bureaucracy requires a goal oriented system that allows for faceless, modern, rule-based power. Ideally has...

Hierarchy of Authority - clearly defined order of promotions/positions w/ different spheres of confidence

Impersonality - merit/qualification based selection of professionals, equal role/pay/penalties, lack of favoritism/cronyism

Written Rules of Conduct - these define procedures that are regulated/repeated

Achievement Based Promotion - not family/friends based

Specialized Division of Labor - prevents unbalanced power roles

Efficiency - should be MAXIMIZED!

What is legal realism?

A theory of judicial decision-making which holds that judges are influenced by things other than the law, that they are not

Legal realism is when legal decisions are not separate from moral or political thought/discourse.

Law is not a science (not a computer)

It is conducted / created / administered by human beings

Humans have biases, histories, political beliefs, moods, opinions

Extreme version: depends what the judge had for breakfast

Probably neither a science nor just about breakfast

law is not self-enforcing; you might have law against vagrancy, but it doesn't apply the same to everyone

recognition that law matters outside of just words on page - people interpret laws differently too

What are norms? How do they relate to law?

According to Durkheim, law is a reflection of shared social norms.

Norms are overt rules, what one ought to do based on social order in human relations

These norms are necessary for a society since they bind its members together with a collective conscience - a shared framework of morality

When collective conscience is violated, society becomes outraged, so the government quells the reaction with punishment (either repressive or restitutive).

Explain the difference between "total population" and "eligible voter population" for

purposes of drawing legislative districts?

When drawing legislative districts, the "total population" method is counting every person in the district, regardless of whether or not they are eligible to vote.

These are the differences in drawing the district lines: Republicans vs Democrats.

Total population: counting every person in district, regardless of whether or not they can vote when determining district lines

How it works: Count EVERYONE in proposed district so heavily populated areas get more representation.

Preferred by democrats bc urban areas are more Hispanic and Democrats and will have more votes in the TX legislature.

One person one vote?: Allows those who are not eligible to vote to still "count." Members of groups that are disproportionately youthful, who do not enjoy full citizenship rights, and who are disproportionality non-citizens (children, felons, unregistered/undocumented).

Eligible voter population: (what plaintiffs want) count only eligible voters in the proposed district, so heavily populated areas (with noncitizens) get less representation

makes it easier for people to keep their positions in districts

How (current) Texas (state legislators) AND the appellants in this case want the districts to be drawn

Preferred by Republicans because rural areas are more white, Republican, and registered to vote

One person one vote?: In this formulation, one person means one potential eligible voter. Although they may have similar interests with their neighbors, only the individual counts. Only eligible voters "count"

What is an honor culture?

An honor culture is...

A model of functioning society where Social order is maintained through a system of norms and practices about "honor" and "shame"

There are rules to get out of a duel

People avoid insults → or else you receive retribution (which could involve death)

Reputation is the single most important thing

Without apology rituals, violence may be acceptable

What is the mechanism for increased gun violence and acceptance in the South?

Actually....it is white poverty that accounts for the increased violence in the south

Cortisol increase in participants who were aggressively approached by confederates

(originally this was thought to be a direct result of genetics/culture back in Europe)

Hamilton v. Burr happened as a direct result of honor culture

Lynching and vigilantism are other forms of honor culture