Transcript III. Theories 1

SOCIOLOGY OF LAW:
THEORIES OF LAW
• Will Consider Several Theories of Law
• Several Theorists & Their Views of Law
• From Several Different Perspectives:
• Sociology
• Anthropology
• Philosophy
• Jurists, Attorneys, Judges
• Historians
MAJOR THEORIES/THEORISTS
TO CONSIDER
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Henry Maine (English Philosopher, c.1861)
Max Weber (German Sociologist, c.1900)
Emile Durkheim (French Sociologist)
Bronislaw Malinowski (British Anthropologist)
Radcliffe-Brown (British Anthropologist)
Talcott Parsons (U.S. Sociologist, c. 1960)
Robert Merton (U.S. Sociologist, c. 1960)
Functionalist Analysis of Law
HENRY MAINE
ENGLISH PHILOSOPHER
• Wrote of “Ancient Law” – 1961
• 3 Stages of Law:
1. Themistes: Arbitrary Ruler (Patriarch, King) –
Makes All Decisions
2. Customary Law: Decisions of Ruler Agreed to
by Other Leaders of the Society
3. Era of Codes: Written Rules & Guidelines
Allows Decisions to be Validated on Basis of
Previous Actions
MAX WEBER
GERMAN SOCIOLOGIST
• Theorized About 3 Types of Leaders
• Charismatic: Authority Based on Power of Personality
• Traditional -- Authority Based on Long-Standing
Customs of the Society
• Bureaucratic -- Authority Based on a Set of Rules
Established by Society
• Each Will Have A Different Kind Of Law
• Categorization of Types of Law, Based on:
– Legal Procedures Used
– Basis On Which Decisions Are Made
MAX WEBER’S LAW TYPES
Basis of Decisions
Rule of Law
Logical/Scientific/Objective
Means - End Rationality
Rule of Men
Substantive -Consider Individual
Circumstances
Legal Procedure
Rational:
Formal -Use Established Rules
A. Western/U.S. Law
C. Case by Case -- but
following a standard
(but not a clear set)
(EX: generally following
the Koran)
Irrational:
B. Set of Rules Derived from
D. Religious Leaders -Based on Ethical/Mystical
Divine (10 Commandments)
Decide Cases 1 by 1
Factors (Religion)
CRITIQUE OF WEBER’S SCHEME
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“Western Law” Is Actually MIXED
Not Totally Based on Rational/Scientific Factors
Much Western Law Comes from Other Types
EX: 10 Commandments
Long-Time Customs (Never Evaluated)
Relatively Ethnocentric View of Laws & Relation
to Society (E.g., He “Liked” Western Law Best!)
THEORIES OF LAW– DURKHEIM
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Emile Durkheim (French sociologist, c. 1900):
2 Types of Law –
Based on 2 Types of Society:
The type of law is dependent upon the type of
society.
• 2 Societal Types:
– Mechanical Solidarity
– Organic Solidarity
MECHANICAL & ORGANIC SOLIDARITY
• Mechanical Solidarity:
– Based on Similarity
– Everyone in the Society IS ALIKE
– Typical of Simple, “Primitive” Societies
• Organic Solidarity:
– Based on Difference
– People in Society Have DIFFERENT Skills
– People Depend on Each Other for Daily Needs
– Typical of “Modern,” Industrial Societies
WARNING: These Seem Like They Should be Reversed
MECHANICAL SOLIDARITY
Nature of Structure
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Any Difference Threat to Society
Any Deviance Is a Threat
It Is An Outrage To Society
Society Is The Offended Party – Most Affected
By The Deviance
• Not Any Specific Individual or Subgroup
MECHANICAL SOLIDARITY
HYP: Consequence of Structure
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Society Must Have Repressive (Penal) Laws
Penal Laws Repress Any Kind of Deviant Action
By Stringent Punishment
Therefore Durkheim Believed:
Early Societies: Extremely Repressive Laws
Stringent Punishment Against All Wrong-doers
Seen To Be Threat To Society As A Whole
ORGANIC SOLIDARITY
Nature of Society
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Modern Societies Have "Division of Labor“
Everyone Does Different Things (Jobs, Professions)
All Need Each Others' Products
People Must Be Different For Society To Survive!
Social Unity: Based On Difference And Mutual Need.
Society Cannot Assume Or Enforce Similarity
Instead, Society Must Enforce The Mutual Exchanges
Required By The Division Or Labor
ORGANIC SOLIDARITY
HYP: Consequence of Structure
• Modern Societies Have Restitutive (Civil) Law
• Civil Law: Requires People to Carry Out Their
Obligations To Each Other …
• And Make Restitution If They Fail To Do So.
• Hence Durkheim Thought: Modern Societies
Would Have Law …
• Which Was Essentially A Matter Of Resolving
Private Disputes Between Individual Parties.
CRITIQUE OF DURKHEIM’S THEORY
• Durkheim Is Correct Re 2 Types Of Law:
• Penal Law Is Repressive
– Deviant Behavior Is a Threat
– Severe Punishment to Punish Deviant Behavior
• Civil Law Is Restitutive:
– Society Depends on Members Fulfilling Individual
Responsibilities
– Violation of Requirements Is a Threat to Social Order
– Requires “Restitution” – Payment of Damages for Loss
CRITIQUE OF DURKHEIM’S THEORY
• Historically, Durkheim’s Theory Is Incorrect…
• Anthropologists Find:
• "Primitive" Societies Have Mainly Restitutive
Law
• Focused On Forcing The Wrong-doer (or
Family/Clan)
• To Make Amends to Offended Party (or
Family/Clan) for Damage Done
ORIGIN OF PENAL LAW
• Middle Ages: Feudalism & Rule of Kings
• Feudal Lords Saw Damages Being Paid to
Owners by Offenders …
• As "Owner“ of Offended Party …
• They Had Suffered Damage (Serfs Could Not
Carry Out Their Duties)
• Consequently – They Ought To Get Repayment
• Origin of GOV’T Receiving Damages (v. Victim)
CONCLUSION RE
DURKHEIM’S THEORY OF LAW
• He Was Correct Re Nature of Law & Related
Punishment
– Penal Law Has Repressive Punishment
– Civil Law Has Restitutive Punishment
• BUT:
• Durkheim's Hypothesized Connection
Between Societal Type And Law Was Incorrect:
– Primitive Societies Have Civil Law
– Modern Societies Have Repressive Law
FUNCTIONALIST ANALYSIS OF LAW
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FUNCTIONALISM
Major Theorists from Sociology, Anthropology
Weber, Durkheim, Malinowski, Radcliffe-Brown, Parsons, Merton
Focuses on Structure of a Total Unit:
– Component Parts
– Functions of Each Part …
– For the Whole Community – For Other Parts of the Whole
• Drawn From Biology:
– Structure of an Organism
– Functions of Different Parts for Whole
DIFFERENT TYPES OF FUNCTIONS
• Manifest & Latent Functions (Roles, Activities)
– Manifest Functions/Roles:
• Functions That Are Easily Identified – Obvious
– Latent Functions/Roles:
• Functions That Are Hidden – Hard to See
• (Eu)functions & Dysfunctions
– (Eu)functions:
• Functions That Play a Positive Role – Help Group/Individual
– Dysfunctions:
• Functions That Play a Negative Role – Hurt Group/Individual
BASIC TENETS OF
FUNCTIONAL THEORY
(van den Berghe)
• 1. Societies Analyzed Holistically –
“Systems" of Interrelated Parts
• 2. Cause & Effect Relationships –
Multiple & Reciprocal
• 3. Systems Are in "Dynamic Equilibrium"
 Minimal Change
• 4. Change Is Slow & Adaptive –
Not Revolutionary
FUNCTIONALISM: BASIC TENETS (ctd)
• 5. Change Results From:
- Adjustment To Outside Forces
- Growth By Differentiation
- Internal Innovations
• 6. Integration Is Never Perfect
 Strains And Deviations
(But They Are Institutionalized)
• 7. System Integration --Through Shared Values
… CONSENSUS Is Key to Social Unity
FUNCTIONS OF LAW
(Friedman)
• 1. Social Control (Crime)
• 2. Dispute Settlement – Conflict Resolution
(EX: Property Disputes)
• 3. Redistributive - Innovation
(Brown V Bd Of Educ)
(Tenant Rights -- Who Is Presumed To Keep
Security Deposit?)
• 4. Control Of The Rulers
(Ombudsman, Judicial Review)
FUNCTIONS OF LAW (ctd)
• 5. Allow (v. Prevent)
Bill Of Rights – Freedoms (Religion, Speech);
Keeping Soldiers
• 6. Bureaucratic Drudgery
Record Births, Deaths, Marriages, Taxes, etc.
• 7. Secondary Social Control
Teach The Rules
• 8. Allocation
Redistribute Property, Rights
Estate Heirs, Taxes; Monopoly Laws
DYSFUNCTIONS OF LAW
(Friedman)
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Law Can Be Vindictive
Is Law a Substitute for War at Times?
Is This Really a DYSFUNCTION?
… Or Does It Really Substitute for “Internal
Warfare” Within Society If These Disputes
Have No Other Outlet?
FOCUS OF SOCIOLOGY OF LAW
• Not LAW … But the LEGAL SYSTEM …
A Working Process … Involving People … In
Different Roles
• 3 COMPONENTS:
1. Structure – Way They Are Organized
2. Substance – Actual Norms or Rules
3. Culture – Attitudes, Opinions, Ideas Re LAW
LEGAL SYSTEM: COMPONENTS: #1
• 1. STRUCTURE – The Way They Are Organized
NETWORK OF SOCIAL RELATIONS
– Lines of Jurisdiction
– Organizational Chart – # Of Judges, Jurors, etc.
– Formal Qs: How to Go About Suing, Getting
Position Recognized, etc.
– EX: Brown & Green Driveway Dispute – Can It Go
To The Legal System? Or Is It Private?
LEGAL SYSTEM: COMPONENTS: #2
• 2. SUBSTANCE – The Actual Norms or Rules
Substantive Rules:Essential Behavior Principles
Procedural Rules: How Rules Are Carried Out
– Forms to Fill Out
– EX: Missing Date – Statute of Limitations
– Q: Can Rules Be Truly Neutral? Or Do They Favor
S.O.? (Adults/Children; Employer/Employee;
Rich/Poor; Etc.)
LEGAL SYSTEM: COMPONENTS: #3
• 3. CULTURE – Attitudes, Opinions, Re LAW
Qs: – Is It Good To Go To The Law?
– Will The Law Be Fair?
– Are Lawyers Honest?
NOTE: Sociology Of Law Also Focuses On …
– Impact of Society On Law &
– Impact of Law on Society
ALTERNATIVE VIEW TO
FUNCTIONAL THEORY OF LAW
SOCIAL CONFLICT THEORY OF LAW
Karl Marx
Richard Quinney
William Chambliss
BASICS OF CONFLICT THEORY
Really No “Consensus” Over Law
Society Is Divided Into “Haves” & Have-Nots”
Law Is Imposition of Power By Powerful
CONSENSUS
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What Is “Consensus”?
Near Universal Agreement Over an Issue
Q: Is There Really True Consensus Over Law?
What Aspects of Law Do Most People Agree
About? EX? (Murder, Stealing?)
• Are There Aspects of Law People Do NOT
Agree About? EX? (Drug Use, Alcohol, Sexual
Behavior, Tax Codes?)
POWER & LAW
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Law is Imposition of Power by the Powerful
Laws Established By Power Structure …
Enforce Their Own Versions Of Morality … or
What They Think Others’ Morality Should Be
Even If They Don't Follow It Themselves!
"Power Structure“ Often Trying To Impose Its
Own Preferred Morality On Others
– EX: Drugs; Alcohol; Sexuality; Tax Codes
HAVES & HAVE-NOTS
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Conflict Theorists: No Single "Society"
Really 2 Societies: "HAVES" And "HAVE NOTS.“
"Haves“: In Power – Make The Laws.
"Have Nots“: Out Of Power –Take Orders
Conflict Theorists: "Have Nots“ Do NOT Share
Views Of The Powerful Re Laws
SUM: CONFLICT THEORY
• Conflict Theorists Say:
• Really No Overall Consensus In Society Re Law
• Question The Basic Assumption On Which
Functionalist Theory Is Based.
SUMMARY: FUNCTIONALISM
vs. CONFLICT THEORY
• What Do You Think?
• Functionalism: Excellent Analysis Tool …
• Conflict Theory: More Accurate Description of
Reality?
NEXT TOPIC:
MAJOR ISSUE:
RELATION OF LAW & MORALITY
Major Authorities:
Lon Fuller (Jurist)
Oliver Wendell Holmes (Jurist)
Robert Cooley Angel (Sociologist)
NEXT TOPIC:
MAJOR ISSUE:
RELATION OF LAW & MORALITY
Major Authorities:
Lon Fuller (Jurist)
Oliver Wendell Holmes (Jurist)
Robert Cooley Angel (Sociologist)