Law and Society Midterm

what 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