Studied by 0 peoplewhat is the accepted comprehensive theory of law and society?
there is no single comprehensive theory
what value does the classical and contemporary theories of law and society provide?
provides the history and relationship between each theory
differentiates and organizes the large amount of content
examples of informal control devices
customs or social, religious and moral sanctions
why will the legal system continue to grow in complexity?
economic growth and diversity
increase in industrialization
social institutions become more stratified and specialized
modern legal system
extensive networks of local and national statutes, private and public codes, crimes and torts, common and civil laws, and procedural and substantive rules
Administrative law
the body of law that regulates the operation and procedures of government agencies; public and procedural laws
trends in modern legal systems
legislation is more acceptable in adjusting laws bc of political development
courts now mediate conflict
administrative statuses are bureaucratized
laws and court decisions are enforced by clearly differentiated and organized police forces
legislative, judicial, and executive functions are separate and distinct
natural law
the assumption that through reason the nature of human beings can be known and that this knowledge can provide the basis for social and legal ordering of human existence
two views of natural law
law in any given society is a reflection of natural law
natural law was largely displaced by historical and evolutionary interpretations of the law
challenges to underlying assumptions of natural law:
natural law must be radically different in its conceptualization in law and society
laws a result of physical environment, antecedents
laws are relative; none are good or bad in abstract
Baron de Montesquieu
believed government should have separation of powers: legislative, executive, judicial
Herbert Spencer (1820-1903)
society follows a natural evolutionary progression toward something better
evolutionary progression consists of consists of:
growing differentiation, individuation, increasing division of labour
there are two main stages in the development of evolutionary progression:
primitive and military form
William Graham Sumner
intellectual defender of laissez-faire capitalism who argued that the wealthy owed "nothing" to the poor
Henry Maine
Society evolves from family/contract Father is the "boss" Evolutionary stage Perspective/ from "archaic" to "modern" Law , From "status" to "contract"
status
a fixed condition in which an individual is with and without opportunity
who are the classical sociologists theorists?
karl marx, max weber, emile durkheim, foucault
karl marx
1818-1883. 19th century philosopher, political economist, sociologist, humanist, political theorist, and revolutionary. Often recognized as the father of communism. Analysis of history led to his belief that communism would replace capitalism as it replaced feudalism. Believed in a classless society.
3 principal assumptions in Marx's theory of law
law is a product of evolving economic forces
law is a tool used by a ruling class to maintain its power over the lower class
in a communist society, law as an instrument of social control will disappear
doctrine of dialectical materialism
the political, social, religious, and cultural order, of any given epoch is determined by the existing system of production and forms a superstructure on top of this economic basis
max weber
Father of sociology. Argued that in a capitalist society inequalities would lead to conflict, but that there would be more than one source of conflict. Argued that there were several factors that moderated people's reaction to inequality.
typology of legal procedures (according to weber)
rational and irrational
rational legal procedure
logical and scientific methods
irrational legal procedure
ethical or mystical considerations
legal procedures can proceed rationally or irrationally with respect to...
formal or substantive law
formal law
making decisions based on established rules, regardless of fairness
substantive law
making decisions based on the circumstances of each law
what are the four types of specific societies according to weber?
substantive irrationality, formal irrationality, substantive rationality, formal rationality
Substantive Irrationality
legal decisions on a case-by-case basis without a set of legal principles
formal irrationality
legal decisions based on formal rules but not based on reason or logic
substantive rationality
rationality driven by a search for efficiency, but sensitive to the values of the community and social others
formal rationality
•Based on adherence to the rule of law characterized by due process and fair procedure determined by established legal principles and rules
what are the three types of administration of justice?
kahdi justice, empirical justice, rational justice
Kahdi Justice
The justice that is dispensed by the judge of the Islamic Shari'a court
empirical justice
The deciding of cases by referring to analogies and by relying on and interpreting precedents.
rational justice
based on bureaucratic principles. Rationality can be further based on adherence to "eternal characteristics" (observable, concrete features) of the facts of the case.
emile durkheim
Believed in functionalism and the scientific method; saw society as a set of independent parts that maintain a system but each separate part has a function
what are the two types of solidarity in society according to durkheim?
mechanical and organic
mechanical solidarity
relatively simple societies where unity is found through similarity in attitudes and schedules
organic solidarity
social cohesion based on difference and interdependence of the parts
what are the two types of law according to durkheim?
repressive and restitutive
repressive law
characteristic of mechanical solidarity, where offenders are likely to be severely punished for any action seen as an offense against the collective conscience
restitutive law
in relation to organic solidarity, punishment deals with compensation for harm done
modern society is bound by what type of solidarity?
organic solidarity
who are the sociological theorists?
albert venn dicey, oliver wendell holmes, e. adamson hoebel
albert venn dicey
Liberalism. Advocated rule of law. For the rule of law to exist there must be equality before the law for everyone. A society should not be governed by arbitrary power. The government is also subject to their own laws.
liberalism
A belief that government can and should achieve justice and equality of opportunity.
3 aspects of dicey's "rule of law"
the rule of law is not consistent with authority
the rule of law means total subjection to all classes
individual rights derive from court precedents rather than constitutional codes
Oliver Wendell Holmes
current necessity rather than precedent should determine the rules by which people are governed; founder of legal realism
legal realism
the conception of the judicial process whereby judges are responsible for formulating law, rather than finding it in law books
e adamson hoebel
law and the legal system is property of that specific community's culture; trends in law are based on the culture of those societies
what are the two ideal conception in the role of law in society?
consensus perspective and conflict perspective
consensus perspective
a perspective that projects an image of society as the collective expression of shared norms and values; functionalist approach
conflict perspective
approach emphasizing the role of conflict, competition, and constraint within a society; conflict and marxist approach
functionalist approach
assumes that particular decision-making functions can be identified that, when performed, will lead to high-quality decision making
who are functionalist sociologists?
comte, spencer, durkheim, malinowski
Criticisms of Functionalism
-Disregard historical process -Hard to explain social change
Conflict/Marxist Theory
assumes that social behaviour can be best understood in terms of tension and conflict between groups and individuals
social change
large numbers of people are engaging in group activities and relationships that are different from those in which they or their parents engaged in previously
3 types of legitimate authority
traditional, charismatic, legal-rational
traditional authority
Power due to custom, tradition, or accepted practice
charismatic authority
power legitimized by extraordinary personal abilities that inspire devotion and obedience
rational-legal authority
power legitimized by legally enacted rules and regulations
why is law distinct?
sets norms of behaviour, everyone is expected to comply, substantive and quantitative
what are the 5 types of law?
constitutional, civil, criminal, administrative, local/national/international
civil law
the system of law concerned with private relations between members of a community rather than criminal, military, or religious affairs.
constitutional law
Laws relating to the interpretation of the Constitution
criminal law
A law that defines crimes that violates one's safety
administrative law
the body of law that regulates the operation and procedures of government agencies.
local, national, and international law
principle of actions that deals with people on a local, national, and international level
who creates the law?
government, courts, social movements
what are the 3 functions of the law?
social control, dispute resolution, social change
legal pluralism
the idea that laws exist simultaneously and may be working together or in conflict with each other bc of the sheer number of actors and levels in their operations
social structures in relation to the law
colonialism and enslavement, capitalism and neoliberalism, social inequality
neoliberalism
an economic and political worldview that sees the free market as the main mechanism for ensuring economic growth, with a severely restricted role for government
gap studies
the written law vs. the implementation of it has a gap between them
what are the two causes of gap studies?
differential enforcement, discretion, and structural dilemmas faced by policymakers and enforcement agents
differential enforcement
The law is differentially applied, benefiting those who hold economic and social power and penalizing the powerless.
criticism of functionalism
ignores unequal power, cannot contend with conflict as an intrinsic feature of society
criticism of conflict perspective
held guilty of economic determinism, ignores colonialism, racism, and patriarchy
economic determinism
the belief that human behavior and relationships are ultimately caused by differences in financial resources and the disparity in power that those gaps create
critical legal studies
theory of law largely concerned with exposing law as an instrument of the rich and powerful; impact of events can always be undone and changed with its inherent structural tilt
structural tilt
the built-in maintaining for certain agendas and social order
feminist CRIT
law is embedded in patriarchal ideas and relations
the law reflects and reproduces gender inequality
three types of feminist CRIT
liberal, radical, socialist
liberal feminism
optimistic perspective on law as an instrument for change
radical feminism
perspective that only fundamental structural changes will create equality
critical race theory
the study of the relationship among race, racism, and power; race is intrinsic to the law and racialized voices should be amplified
arguments of critical race theory
racism is constitutive of society and the law
law reflects dominant white interests
voices of oppressed groups essential to expose racial inequality and racism
Settler Colonialism
a distinct type of colonialism that functions through the replacement of indigenous populations with an invasive settler society that currently holds a distinctive identity and sovereignty
logic of elimination
A mindset that guided the ways in which Europeans erased Indigenous peoples from the land and society's consciousness
what are the two major mechanisms of logic of elimination?
genocide and forced assimilation
how does the law enforce settler colonialism through material and symbolic means?
categorizes Indigenous people as a "racial group" to separate them from Europeans
defines settler authority as "lawful" and Indigenous ppl as "unlawful"
restricts status vs. non-status based on misogyny and racialization
indian act
defines who is registered as Indian and who can live and pass on their reserves
status vs. nonstatus
remove status rights from indigenous women
bill c-31
Removal of the discriminatory clause from the Indian Act and women and their children were able to regain their status.
social form
Gender, ethnicity, identity, and political institutions that maintain beliefs and artifacts
legal form
Documents that can be used in a court proceeding
practices of the legal profession shifts with...
the social and economic conditions of society
law is constituted by and constitutes...
the surrounding social, political, and economic landscape
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