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).