Comprehensive Law Types and Theories: Common, Civil, Social, and International Law

Most definitions of law require that a law is an official government act that is fair and just.

False

A primary difference between the common law and civil law systems is that the common law is based on the opinions of judges and the civil law is based on the enactments of legislatures

True

Three of the important functions of law in society are social control, dispute resolution, and social change

True

Law can play a dysfunctional (negative) role in society and can work to the benefit of a small number of individuals; it does not always work to the benefit of the majority of citizens

True

There is no difference between an approach to the study of law that focuses on "black letter" legal doctrine and an approach that focuses on law and society

False

A lengthy labor strike over wages, working conditions, and a plant's move outside the United States is an example of the consensus view of law in society

False

Law and Official Authority

Law is seen as statutes, rules, and regulations issued and enforced by the government. law is a form of social control exercised by the government. regulates through institutions like courts, police, and agencies.

Law in Action

Oliver Wendell Holmes emphasized law as it is actually interpreted and applied by courts, rather than just the written statutes.

Law and Physical Force

Adamson Hoebel defines law in terms of coercion, especially physical force. Law is based on social norms where violations are met with physical enforcement.

Law, Coercion, and Specialization

Max Weber highlights physical or psychological coercion as fundamental to law. People obey law not only due to threat of force but also due to specialized institutions and authority.

Law and Justice

Philip Selznick and others argue law must include a moral or justice component. Raises question can law be separated from morality. Lon Fuller focused on "good law."

Law and Social Integration

Bronislaw Malinowski emphasized law as binding obligations within social customs, such as gift-giving.

Law and Custom

Paul Bohannan views law as evolving from custom. the community may reinforce the custom by incorporating it into formal law. not always straightforward.

Norms

Social rules that guide behavior; they can be formal (laws) or informal (customs). Norms regulate everyday conduct within a society

Mores

Stronger norms that are considered vital to the moral fabric of society, often accompanied by sanctions if violated. Examples include prohibitions against murder or theft.

Folkways

Customs or everyday practices that are less serious; violations typically result in minor social disapproval rather than severe sanctions. Examples include dress codes or table manners.

Compare and contrast the common law, civil law, and social law legal traditions

Common law, civil law, and socialist law represent three distinct legal traditions with different origins, sources, and judicial roles. Common law, originating in England, relies heavily on judicial decisions and precedents, giving judges a central role in shaping the law through case rulings in an adversarial system. In contrast, civil law, rooted in Roman law and prevalent in continental Europe, is based primarily on comprehensive written codes and statutes, with judges applying rather than creating law in a more inquisitorial process. Socialist law, developed in communist states, emphasizes the subordination of law to the goals of the ruling party and state ideology, where judges act as agents of the state to enforce policies, often with limited independence. While common law is flexible and evolves through court decisions, civil law is more rigid but systematically codified, and socialist law is politically driven, with legal rules serving broader social and economic objectives. Together, these traditions reflect different approaches to lawmaking, interpretation, and the balance between judicial authority and legislative control.

Does International Law Have Central Characteristics of Law?

International law does have some characteristics of law, but it differs from domestic law in several ways. international law regulates relationships between countries, unlike a state system, it doesn't have a central authority that can enforce decisions in the same way.

Treaties and agreements primary source

Social Control

ensures people follow "right conduct." defines deviant behavior punishable by law.

Dispute Resolution

Law helps resolve disputes, which are conflicting claims over something valuable. Disputes can be minor or major. negotiation or legal action in courts.

Social Change

Law can promote social change, both major and minor.

example seatbelt laws

Retributive Justice:

Focuses on punishment proportionate to wrongdoing.

Distributive Justice

Concerned with fair allocation of resources and opportunities.

Procedural Justice

Emphasizes fairness in processes and procedures.

Restorative Justice

Aims to repair harm and reconcile parties.

Comparative Justice

Individuals in similar situations should be treated in a similar fashion.

Discriminatory Justice

The law is selectively enforced against an individual based on the characteristics such as race, class, ethnicity, or gender.

Substantive Justice

The fundamental civil and political and property rights of individuals are protected against government interference.

Legal Doctrine:

The body of written laws, statutes, and case law; the "black letter law."

Jurisprudence:

The philosophical study of law, exploring its nature, foundations, and principles.

Law and Society

how law operates within social contexts and influences. Thinking outside the box of just laws

Consensus Perspective

Views law as a reflection of shared values and social order; laws promote social stability.

Conflict Perspective

Sees law as a tool for maintaining power of dominant groups to maintain their power and control.

autocratic legalism

democratic institutions do not fully function in practice and serve the interests of elites.

''black letter'' law

legal rules, established by different states or by the federal government, for regulating a dispute.

Code of Hammurabi

the first comprehensive legal code

common law-

the judge-made law originating in England.

CROWN Act

a law, Creating a Respectful and Open World for Natural Hair, that makes it unlawful to discriminate based on hairstyle.

dysfunctional role of the law

the law promotes inequality, or serves the interests of a small number of individuals rather than promoting the welfare of society, or impedes the enjoyment of human rights.

families of law

the major legal traditions in the world: the common law, the civil law, socialist law, and Islamic law.

family of civil law

a legal tradition in which statutes passed by the legislature are the only recognized source of law.

folkways

the customs that guide our daily interactions and behavior.

functions of law

social control, dispute settlement, and social change

Justice

giving everyone that which they deserve.

Meritocracy

rewards distributed based on achievement.

International Law

regulates the relationships between countries in the world.

precedent

the common law principle that "like cases are treated alike."

sanctions

punishment

Shari'a

Islamic law; literally meaning "path to follow" for salvation.

socialist law

the purpose is to cleanse the influence of the past and to prepare individuals for the transition to a classless society in which the people collectively own property.

Values

core beliefs about what is moral and immoral, good and bad, acceptable and unacceptable.

Both natural law and legal positivism consider an unjust law to be a valid law.

False

A legal system based on utilitarianism would provide economic benefits to economic elites that do not benefit most people in society.

False

A society based on Immanuel Kant's categorical imperative likely would provide medical care for everyone in society.

True

Henry Maine's theory that law progresses from "status" to "contract" is illustrated by the transition from slavery to wage labor.

True

Karl Marx viewed law as independent of the economic structure of society

False

Max Weber made an important contribution to types of authority and to types of legal thinking.

True

Legal realism and sociological jurisprudence focus on factors outside the law to explain how judges decide cases.

True

Functionalism questions whether law is essential to the operation of society.

False

There is little relationship between a country's law and culture

False

Statistical analysis on how judges decide cases in various areas of the law is an example of legal behavioralism.

True

Libertarianism favors increased government regulation.

False

Critical legal studies, critical race theory, and feminist jurisprudence all endorse the existing legal system

False

Natural Law

Core Idea: Law is based on universal moral principles and moral order inherent in nature or divine will.

Approach: A natural law theorist would evaluate a statute authorizing the death penalty by examining whether it aligns with moral principles such as justice, human dignity, and the inherent rights of individuals.

Application to Death Penalty: If the death penalty is deemed incompatible with natural law principles—such as the obligation to respect human life and dignity—the law would be considered unjust and illegitimate, regardless of its statutory authority.

Legal positivism

Core Idea: Law is a set of rules created and enforced by human institutions; its validity depends on social facts and the authority of lawmaking bodies, not on moral considerations.

Approach: A legal positivist would assess the statute purely on whether it was properly enacted by a legitimate authority according to existing legal procedures.

Application to Death Penalty: If the statute was enacted by the proper legislative authority and follows the procedural requirements, then it is valid and should be obeyed, regardless of whether it is morally justified.

Utilitarian Approach:

Core Idea: The morality of law depends on its consequences—maximizing overall happiness and reducing suffering.

Analysis: A utilitarian would evaluate whether permitting euthanasia for older individuals with limited life expectancy increases overall societal well-being. This might include considerations such as alleviating suffering, resource allocation (federal funds), and personal autonomy.

Desirability: If the law results in greater happiness or less suffering, it is deemed desirable; if it leads to negative consequences (e.g., potential abuses), it may be rejected.

Categorical Imperative (Kantian) Approach:

Core Idea: Morality is based on universal principles and duty, not consequences.

Analysis: A Kantian would consider whether permitting euthanasia respects the moral duty to treat individuals as ends in themselves and whether it could be universalized as a moral law. If euthanasia violates the principle that humans should be treated with inherent dignity, the law would be rejected.

Difference: This approach focuses on the moral rules and respect for persons rather than overall societal happiness.

Henry Maine's Thinking

Henry Maine is known for his theory of social and legal evolution. He proposed that societies evolve from "status" (fixed social roles) to "contract" (individual rights and voluntary agreements). Maine emphasized the importance of social change and the movement toward individualism and legal freedoms, highlighting the dynamic development of law as a reflection of societal progress.

Karl Marx

Focused on law as a tool of economic and social class domination.

Viewed law as serving the interests of the ruling class and facilitating economic exploitation.

Emphasized the material base of law, rooted in economic relations.

Émile Durkheim:

Saw law as a reflection of social solidarity.

Differentiated between repressive law (primitive societies) and restitutive law (modern societies).

Emphasized that law maintains social cohesion and reflects collective conscience.

Max Weber:

Analyzed law as part of the broader process of rationalization and bureaucratic organization.

Focused on legal rationality, authority types, and the role of legal systems in rational governance.

Contributed to understanding how law sustains modern bureaucratic societies.

Legal Realism:

Emphasizes that law is influenced by social, economic, and psychological factors.

Argues that judicial decisions are influenced by extralegal factors and the social context.

Challenges the idea that law is a logical system and stresses the importance of studying how law operates in practice.

Sociological Jurisprudence:

Focuses on the social purposes of law and how law impacts society.

Advocates for law as a social institution that should serve societal needs.

Difference from Legal Positivism:

Positivism views law as a system of rules created by authority, with less emphasis on social factors.

Realism and sociological jurisprudence see law as dynamic, influenced by social realities and purposes.

Functionalists' View of Law

Functionalists see law as serving essential functions such as maintaining social order, resolving disputes, and promoting social integration. They view law as a tool that contributes to the stability and functioning of society.

Cultural Law and the Law-Culture Relationship

Cultural law emphasizes that law cannot be understood in isolation; it is deeply embedded in and reflective of a society's culture, values, and beliefs. Law and culture influence each other reciprocally, shaping social norms and behaviors.

Legal Behavioralism

Legal behavioralism studies law by examining the behaviors and actions of legal actors—judges, lawyers, and jurors—rather than abstract principles.

It relates to legal realism and sociological jurisprudence by focusing on actual behavior, social influences, and empirical data, contrasting with the formalist view of law as a logical system.

Libertarianism's Philosophy

Libertarianism emphasizes individual liberty, free choice, and minimal government intervention.

It values personal autonomy and property rights, advocating for laws that protect individual freedoms while limiting state power.

Characteristics of Critical Theories

Critical Legal Studies (CLS):

Challenges traditional legal doctrines, emphasizing that law is intertwined with social power and inequality.

Advocates for law as a tool for social change and liberation.

Critical Race Theory (CRT):

Analyzes how law perpetuates racial inequalities.

Highlights the importance of race and racism in legal processes and structures.

LatCrit (Latino Critical Theory):

Extends CRT to focus on issues affecting Latino communities.

Examines intersectionality, immigration law, and social justice within Latino contexts.

Feminist Jurisprudence's Unifying Theme

Feminist jurisprudence critiques traditional law from a gendered perspective.

Its unifying theme is addressing gender inequalities and promoting gender justice by exposing how law sustains gendered power structures and advocating for gender-equitable reforms.

categorical imperative:

identified with eighteenth-century theorist Immanuel Kant, stating that individuals should act as they would like all other individuals to act under similar circumstances.

classical sociological theory:

the early social theorists, the most prominent of which are Émile Durkheim, Max Weber, and Karl Marx.

critical legal studies:

a contemporary legal theory that views law as political.

discourse analysis:

analysis of how language interacts with and reinforces the prevailing social structure.

libertarianism:

individuals and society should be free from legal regulation.

queer legal theory:

The treatment of LGBTQ+ individuals under the law.

relational testimony:

testimony that focuses on personal reactions rather than the facts and the law.

rule-oriented testimony:

testimony that focuses on how the facts relevant to the dispute support the legal claim.

sociolinguistics:

relationship between language and law and society.

utilitarianism:

law is based on the greatest good for the greatest number.

The Federalists and anti-Federalists disagreed over the role of the federal government in the newly established United States of America

True

The United States has a unified court system rather than a dual court system?

False

Courts want to hear as many cases as possible and reject the use of technical procedural mechanisms to limit their caseload.

False

District courts and courts of appeals perform the same role in the federal judicial system.

False

The U.S. Supreme Court is constitutionally prohibited from deciding whether Congress or the president acted in a constitutional fashion.

False

State courts are a minor part of the judicial system in the United States

False

All state court judges are selected by the governor of a state or the state legislature

False

Scholars who study judicial decision-making agree that judges base their decisions solely on the law.

False