AC

law & society

2. Legal Theories

These theories explain how laws are made, interpreted, and applied.

a) Natural Law Theory

  • Law is based on universal moral principles (Aristotle & Aquinas).

  • If a law is unjust, it should not be followed.

  • Example: The Nuremberg Trials held Nazi leaders accountable for crimes, even if they were following German law.

b) Legal Positivism

  • Law is whatever the government enacts, even if it’s unjust.

  • Rejects morality as a factor in evaluating laws (Kelsen's "Pure Theory of Law").

  • Laws should be followed until they are changed.

  • Example: Apartheid laws in South Africa were enforced despite being immoral.

c) Utilitarianism

  • Laws should maximize the greatest good for the greatest number (Bentham & Beccaria).

  • Punishments should be swift, certain, and proportional to deter crime.

  • Example: Reforming criminal laws to reduce excessive punishments.

d) Kant’s Categorical Imperative

  • Laws should treat people as ends in themselves, not as a means to an end.

  • Rejects utilitarianism (which sometimes sacrifices individual rights for the majority).

  • Example: Human rights laws protect all individuals, not just majorities.

3. Sociological Theories of Law

These theories examine how law interacts with society.

a) Durkheim - Social Solidarity

  • Law reflects society’s level of cohesion:

    • Mechanical Solidarity (small, traditional societies) → Punitive laws.

    • Organic Solidarity (modern societies) → Restorative laws.

b) Weber - Law & Coercion

  • Law uses physical or psychological coercion to ensure obedience.

  • Example: Fines, arrests, and public shaming as deterrents.

c) Marx - Law as a Tool of the Elite

  • Law protects the interests of the wealthy and powerful.

  • Socialist Law aims to remove class divisions and promote collective ownership.

4. Critical Legal Theories

These challenge traditional legal views.

a) Critical Legal Studies (CLS)

  • Law is not neutral; it is shaped by politics and power.

  • Judges use their ideology to make decisions.

  • Example: The U.S. Supreme Court often rules based on political ideologies.

b) Critical Race Theory (CRT)

  • Law perpetuates racism and benefits dominant groups.

  • Interest Convergence → Whites support racial justice only when it benefits them.

  • Intersectionality → Discrimination is compounded by race, gender, and class.

c) Feminist Jurisprudence

  • Law has been historically biased against women.

  • Different feminist approaches:

    • Liberal Feminists → Want equal rights through reform.

    • Cultural Feminists → Believe in gender-based differences in legal treatment.

    • Dominance Feminists → Argue law is structured to maintain male power.

5. Legal Traditions

There are four major legal systems worldwide.

a) Common Law (UK, U.S., Canada, etc.)

  • Judge-made law based on precedent (past court decisions).

  • Adversarial System → Lawyers argue cases, judges ensure fairness.

  • Jury Trials → Citizens help decide cases.

b) Civil Law (Europe, Latin America, Asia)

  • Statutes are the main source of law (not judge decisions).

  • Inquisitorial System → Judges take an active role in finding the truth.

c) Socialist Law (Former USSR, China)

  • Law serves the interests of the state over individual rights.

  • Property is publicly owned.

d) Islamic Law (Shari’a)

  • Based on the Koran and religious teachings.

  • Coexists with modern legal codes in some Muslim-majority countries.

6. Courts & Judicial Decision-Making

a) U.S. Court System

  • Dual System: Federal & State Courts.

  • Supreme Court is the highest court, with 9 Justices.

  • Judicial Review → Power to declare laws unconstitutional (Marbury v. Madison).

b) How Judges Decide Cases

  1. Legalism → Based strictly on written laws.

  2. Originalism → Based on the original intent of the law.

  3. Textualism → Based only on the words of the law.

  4. Living Constitution → Adapts laws to modern society.

  5. Attitudinal Model → Judges vote based on their personal beliefs.

7. The Legislative Process

  • Laws are made by legislatures (Congress, state legislatures).

  • Influenced by media, public opinion, lobbyists, and executives.

Key Concepts

  • Separation of Powers → Divides government into branches (Legislative, Executive, Judicial).

  • Checks & Balances → Prevents one branch from having too much power.

8. The Justice Gap

  • Low-income individuals struggle to afford legal representation.

  • Issues include:

    • Domestic violence

    • Child custody

    • Housing disputes

9. The Functions & Dysfunctions of Law

a) Functions of Law

  1. Social Control → Ensures order in society.

  2. Dispute Resolution → Resolves conflicts peacefully.

  3. Social Change → Laws can transform society (e.g., Civil Rights Act).

b) Dysfunctions of Law

  1. Bias → Laws can reflect societal prejudices.

  2. Harassment → Legal action may be used for revenge.

  3. Unequal Access → The wealthy have better legal representation.

  4. Rigidity → Laws may not adapt quickly to societal changes.

  5. Preventing Social Change → Laws may block progress (e.g., Jim Crow laws).