cjl 4038 final exam

values

core beliefs people hold about what is moral/immoral

norms

action aspect of values, largely guide daily behaviors

unconsciously hold them (informal)

two types of norms

1. folkways

2. mores

folkways

guide daily behavior

tend to be less serious when broken

right vs. rude

mores

surround deeply held beliefs about what is right/wrong

violation met with strong societal condemnation

right vs wrong

change over time

are beliefs always expressed through norms in the same way?

no

laws

external controls on people

government has authority to make norm violations illegal

general rule of folkways and mores translating into laws?

more violations = felonies

folkway violations = misdemeanors, civil ordinances, or no law

are all violations of mores and folkways illegal?

no

1. whether a more or folkway violation happened will depend on person interpreting the event

2. functionally, not all norm violations are criminalized

do norms regulate human behavior, or do laws regulate human behavior?

norms largely regulate behavior

- mostly, people don't break the law because they know the behavior is bad, consider punishment secondarily

- laws mainly speak to CJS actors

what does the law have to do with norms?

1. criminal law governs popular norms

2. popular norms govern criminal law

assumption of negative correlation

when laws drive norms, laws will be tougher leading to less tolerance for rule breaking

when norms drive laws, there will be less tolerance for norm breaking leading to more codification

is the assumption of negative correlation "correct"?

no, faulty logic because the relationship between norms and laws isn't always negative

criminal law can be the opposite of what popular norms dictate

three assumptions of norm/law relationship (self-defeating crimes)

1. norms primarily regulate behavior

2. laws likely to be driven by norms

3. severity of criminal law and tolerance for breaking are negatively associated

why was prohibition a self-defeating crime?

differential enforcement

police only targeting people of low socioeconomic class, thus creating an "us vs them" sentiment

law seen as discriminatory and thus packed no punch

two responses when the law has no punch

1. increase sanctions

2. end legal ban

why was/is abortion a self-defeating crime?

morally controversial, no absolute majority opinion

once one side wins, the other will eventually "win", thus creating a cycle where fence sitters are swayed back and forth between the issue

legal victory produces political defeat

when are laws self-defeating?

1. differential enforcement

2. morally controversial

where do laws come from? perspectives

law as social control

law as social harmony

law as social control

donald black

law is governmental social control over the normative life of the citizenry

law is meant to manipulate the population into a specific set of norms

laws drive norms

law as social harmony

law is a body of binding obligations kept in force by structure of society

if there is a strong societal want for X to be criminal, laws will make X illegal

norms drive laws

legal realism

oliver wendell holmes

law is the actual interpretation of concepts by the court, not what is written down in statute books

legal realism propositions

1. when someone is deciding to commit a crime, they are likely to consider how the law is actually being used, not what is written down

2. legal concepts really only have meaning after they have been applied to specific cases

Hoebel's definition of law

a real law must not be rarely enforced and must come from those authorized to apply physical force

Hoebel's definition of law problems

what is rarely?

many laws are enforced by non-physical means

weber's definition of law

a law must be externally guaranteed by the probability that physical or psychological coercion will be applied by a staff of people to bring about compliance

how does weber's definition differ from hoebel's?

weber includes

- physical and psychological coercion

- recognizes that people comply with written laws bc of want to avoid others' ire

- doesn't have to be regularly enforced, just the probability will bring compliance

problem with weber's definition of law

some people adhere to the law based on a sense of duty, tradition, obligation, etc. even in the absence of external threat

should laws have a moral component?

yes:

- law must be just and moral

- if law doesn't serve dignity of people then no compliance

no:

- morality is not a clear line

subverts the question: does the law carry the threat of punishment?

justinian code definition of justice

constant and perpetual wish to give everyone which they deserve

- subject to interpretation

Themis and justice

blindfold: justice is blind and immune to power

scales: neutrality and impartiality

sword: power of judiciary

aristotle's definition of justice

distribution of equal amounts to those who are equal

- issues when applying to moral/social policy

concepts of justice

1. comparative

2. discriminatory

3. procedural

4. restorative

comparative justice

individuals in similar situations being treated similarly

discriminatory justice

law is selectively enforced against an individual based on a characteristic

procedural justice

government reaching decisions through fair procedures

restorative justice

individuals who are harmed are compensated for their injuries

families of law

1. common law

2. civil law

3. socialist legal tradition

4. religious-based law

common law

judgments provide precedent

uniform law to be used in future cases

judge-made law

appeal of common law

1. promotes predictability and uniformity in legal decisions

2. check on individual judicial power

3. limits ability of elites to influence

4. promotes adversarial-ism

opposition of common law

legislators are the elected voice of the people, takes power away from them

civil law

statutes are passed by legislators and are the only recognized source of law

oldest and most widely used

"code is king"

- statutes have no other meaning other than words on page

civil law shortcoming

vague criminal laws are common

comrade courts

SLT

lower criminal courts made up of people in community affected

idea is to let communities handle law breakers themselves

religious-based law

purpose of law is to establish the obligations of a citizen to reach human salvation

law and morality are intrinsically linked together

- manmade laws illegitimate

focus more on substance than procedure

criticized for being too harsh

United States law system

common and civil

statutes passed to codify common law doctrines founders' supported

common law still needed due to vagueness of law

judges review constitutionality of statutes

rule of law

key in common & civil systems

failure to adhere threatens to undermine peoples' willingness to obey

rule of law principles

1. government and their officials must be held accountable for conduct

2. laws must be clear, available, stable, fair, and protect individual rights

3. the process by which laws are enacted, administered, and enforced must be public, understandable, and fair

4. justice must be delivered by qualified, independent, and objective people who reflect the community

purposes of law

1. social control

2. dispute resolution

3. social change

4. record keeping

5. dysfunction

social control purpose of law

because people have different values, society cannot only rely on informal social control to "control"

laws aren't always effective at maintaining social control

law - trying to get people into the right behavior

dispute resolution purpose of law

government only gets involved when dispute is brought to them

helps along negotiation process

social change purpose of law

laws that achieve this come after a political/social movement

record keeping purpose of law

state keeps track of important personal documents

studies of law

1. legal doctrine

2. jurisprudence

3. law and society

study of legal doctrine

study of rules that need to be followed when applying law

taught in law school

two divisions

- public law

- private law

public law

relationship between citizen and state

three types

1. criminal law and procedure

2. constitutional law

3. administrative law

criminal law and procedure

definitions of crimes and how to properly investigate

substantive and criminal laws

constitutional law

outline structure of government

relationship between branches of gov

limits of power

administrative law

regulates the ability of the government to weigh in on various everyday activities

private law

relationship between individuals/groups in society

three types

1. contract law

2. tort law

3. property law

contract law

formation and enforcement of agreements

how to deal with breaches of contracts

tort law

address remedies for injuries to a person, property, reputation, etc.

goal: make a person whole

property law

defining what property is, who owns it, etc.

study of jurisprudence

consideration of the philosophical questions underlying the law

- moral or analytical

Queen v. Dudley and Stephens

rejected necessity argument

different levels of culpability when the law is broken

study of law and society

study of how external events can impact the law

Schenk v United States

similarity between study of jurisprudence and law & society

both promote pause on the notion that law is easy

evolution of legal systems

1. pre-modern legal system

2. transitional legal system

3. modern legal system

pre-modern legal system

hunter-gatherer societies

ruled by face-to-face interactions

laws encompass serious crimes and low-level moral crimes

transitional legal system

as society becomes more agricultural, institutions are needed to settle disputes

laws passed to develop gov institutions that regulate economy

purpose of law: protect property

modern legal system

extensive body of civil and criminal laws developed

specialized agencies regulate all areas of life

LE nested at diff levels

procedural law held to similar standard as substantive law

what is the connection between laws and morality? perspectives

natural law and legal positivism

natural law

aquinas

laws are predownloaded into people from our creator

law is universal

unjust law = don't obey

problem with natural law

source code is not clear on many things

how would natural law define an unjust law?

benefits lawmakers, not common good

places unfair burden on some members of society

go beyond authority of lawmakers

legal positivism

laws come from people, disconnected from morals

laws evaluated based on their source

law: order to be obeyed, accompanied by a threat to impose punishment if not

how would a legal positivist society react to an unjust law?

obeyed until they're legitimately changed

benefit of legal positivism

clearly know what the law is

how do we decide whether a rule is "right" or "ethical"? perspectives

utilitarianism and categorical imperative

utilitarianism

people are rational and act based on cost-benefit scale

law should work for the greatest number

role of social policy in utilitarian society

discourage behavior by increasing costs of it

encourage behavior by decreasing costs of it

how does utilitarianism go against natural law?

benefits for the larger group may lead to costs for smaller group

how does utilitarianism evaluate whether a rule is/was effective?

outcome

categorical imperative

morality drives actions

- morality understandable through reasons

- what is right is knowable through intellect

1. universality principle

2. humanity principle

universality principle

what does the act signify?

only act in a certain way if everyone can/should act that way

humanity principle

humans are not objects to be used

all humans have values/wants and absolute moral worth

autonomy should be paramount

what is the relationship between law and society? perspectives

historical school

marxian theory

max weber

functionalism

historical school

laws develop from shared customs, values, and beliefs

as societies develop, laws stop coming from a place of prestige, and start coming from a place of contractual obligation

sir henry maine

what concepts does the historical school reject?

natural law

law being the will of a single ruler

sir henry maine

societies evolve from status/prestige to contractual

status societies

opportunity based on family name

contractual societies

legal contracts regulate behavior as opposed to informal social control

max weber

why do people obey the law?

what types of legal reasoning exist in society?

why do people obey the law? (weber)

1. political domination

2. view commands of leader as just

political domination

law has ability to get compliance through punishment and shaming

types of authority

1. charismatic

2. traditional

3. rational-legal

charismatic authority

pronouncements are obeyed because of leader's extraordinary qualities

divinity

traditional authority

status of an individual's office brings an inherited status

rational-legal authority

obey bc of the legitimacy of the rules on which someone's decision is made

relationship between political domination and authorities

mutually reinforcing