LAW & SOCIETY: MAJOR THEORETICAL DEFINITIONS

LAW & SOCIETY:MAJOR THEORETICAL DEFINITIONS • William Graham Sumner (Sociologist) • E. A Hoebel (Anthropologist) • Benjamin Cardozo (N.Y. Appeals Court & Supreme Court Justice) • Albert Venn Dicey (Harvard U. Law School) • Schuman (WSU Law School) • Friedman (Sociologist)

W.G. SUMNER (SOCIOLOGIST) • 3 Types of Normative Rules: • Folkways: Best, Easiest Way Of Getting Something Done • Customs: Folkways Eventually Become Customs • Mores: Some Folkways Become MORES – More Serious Norms

SUMNER – “FOLKWAYS” • FOLKWAYS: Best/Easiest Way to Achieve Societal Need • Good Way of Getting Something Done • CUSTOMS: Folkways Eventually Become Customs • Because Everyone Finds Them Useful And Knows They Work • They Are NOT Rationally Planned • They Are NOT The Products of "Group Psyche" • They Are Simply The Result of TRIAL & ERROR • BUT: Over Time They Become Accepted As : • THE APPROPRIATE WAY OF DOING THINGS. • At This Point They Become ...

SUMNER – MORES (Singular: “MOS”) • MORES Are Folkways Which Are Seen As Being: • RIGHT – E.G., The Right Way, Because We've Always Done It That Way • TRUE – A Philosophy Develops Which Justifies The Society's Customs –> Basically a … • RATIONALIZATION For The Existing Way – May Involve The Belief/Action Of Ghosts • FOR THE GENERAL WELFARE – The Belief That The Society Will Suffer If The Mores Are Violated – Hence Violations Are Very Serious. • TABOOS: These Are Negative Mores.

QUESTION • What Would Sumner Say About: • Possibility of the Philosophy of a Society … • Serving as the Basis for a Critique of a Society’s Laws? • For an Evaluation or Revision of the Laws?

SUMNER: INSTITUTIONS & LAW • Institutions Are: • Social Structures Which Grow Out Of The Folkways • To Assist In Carrying Them Out • EX: Marriage, Religion, Property • Which Help Carry Out The Society's Rules • Consequently, Many Sociologists See The Law As a “Social Institution”

SUMNER & ORIGINS OF LAW • Law and the Folkways/Mores: • Where Does Sumner Believe Laws Come From? • Laws Have Their Origin In The Traditional Customs (Folkways/Mores) ... • Which Become Enacted Into Laws When: • The Authority Of The Ancestors • And The Belief In The General Welfare Of The Group • Are No Longer Powerful Enough To Control People's Behavior

E. A. HOEBEL (ANTHROPOLIGIST) • Distinguished 3 Types of Law: • Primitive Law • Archaic Law (In Ancient Societies) • Modern Law • Re: Primitive Law (E.g., Unwritten Law In The "Pre-modern Societies" Anthropologists Study)

HOEBEL’S MAJOR POINTS • What Law Is NOT: • Law Is Not "Just Custom" – The Totality of Tribal Patterns • (Can Include Ways Of Dressing, Eating, Making Pottery, Toilet Training, Etc.) • Law Is Not Just Those Customs Which Regulate Behavior • (Some Of Which Are Very Informal, Like Frowning At Someone Who Misbehaves) • Custom Is What Most People Do Most Of The Time • But That Is Not Law • Law Is Not Just The Authority Of A Sovereign Or Legislature

HOEBEL’S MAJOR POINTS • What Law IS: • The Authority Of OFFICIAL SOCIETAL ENFORCEMENT Of Behavioral Rules. • EX: Cheyenne Enforcement Of Rules On Horse Thievery • Eskimo Management Of Repetitive Homicide (Vs. Feuds In Single Homicide)

HOEBEL & CARDOZO • Hoebel Quotes Benjamin Cardozo (1924, Growth Of The Law): • 4 Elements Of Law • 1. Normative Element (What Should Be Done) • 2. Regularity – Followed Most Of The Time ... And If It's Not ... • 3. Courts – Some Societal Agent Is Responsible For ... • 4. Enforcement – Seeing That The Rule Is Followed

RECOGNITION OF THE “COURT” • Hoebel Adds: • The Right Of This Agent (Court) To Act • Is Recognized By The Society As A Whole • Otherwise the “Court” Would Not be Effective

HOEBEL: DEFINITIONS • Hoebel Emphasizes that: • Law is a Bilateral Relationship. • This Means That: • Involves Other People … • Is a 2-Way Relationship

LAW AS A BILATERAL RELATIONSHIP • A. Law Is Social – It Involves Other People E.G., You Do Not Have A Legal Right To Your Property – Rather, You Have A Legal Right With Relation To Other People, Concerning Your Property. • B. Legal Relationships Are Bilateral – E.G., 2 Sided. There Are 2 Parties To A Legal Relationship – If There Are More Than 2 People, They Are Still Aligned On 2 Sides. [E.G., Law Is Adversarial.]

HOEBEL’S 4 TYPES OF LEGAL RELATIONSHIPS • Hoebel defines 4 kinds of Bilateral Relationships: • Relationship Type Party A & Party B • I. Law: Obligation – Right • II. Potential Law: Power – Liability (EX: Offer of a Contract) • III. Friendship: No Demand Right – Privilege (EX: Friendly Agreement) • IV. Immunity: No Power – Immunity (EX: Diplomatic Immunity; <21 Contracts; In-home Contracts)

DEFINITIONS: ALBERT VENN DICEY • Harvard Law School, C. 1900 • Focuses On The Role Of Public Opinion • E.G., Societal Acceptance Of The Law And Changes In The Law Are Critical.

DICEY’S DEFINITION OF ASPECTS OF LAW • The Rule Of Law Has 3 Aspects: • Punishment Can Occur Only For A Distinct Breach Of A Rule • Arbitrary Decisions Of Extremely Wide Discretion Are Not Appropriate Under Law! • There Must Be Total Subjection Of ALL Classes To The Law • Individual Rights Derive From Court Precedent (Not Constitutional Codes)

SUMMARY (HOEBEL, CARDOZO, DICEY) • The Key Issue In Defining Law Is NOT The Authority To ESTABLISH A Rule ... • It IS The Authority To ENFORCE A Rule When It Is Broken ... That Makes For LAW • Although Authority To Establish A Rule May Also Be Included • Further, Acceptance Of The Rule By Society Is Critical.

SHUMAN (WSU LAW SCHOOL) • In Contrast, Shuman Says That: • Laws Are Not JUST A System For PUNISHING LAW-BREAKERS ... • Laws Also PROMOTE CONFORMITY TO THE RULES ("REGULARITY") … • I.e., Encourage OTHERS TO Observe the Law

FRIEDMAN’S SUMMARY: VARIOUS MEANINGS OF “LAW” • Law Is A Book Of Rules (E.G., Written, Formal Rules; "Look Up The Law") • Law Is A Set Of Norms (Less Formal Definition Of Law) - Law Is A Set Of Processes & Institutions (E.G., He "Fell Into The Hands Of The Law") • Law Is A Set Of Rules Which Have An Officially Recognized Enforcement Agent • Law May Involve Some Private Behavior (E.G., Private Conference With An Attorney Re Legal Rights, Consequences, How To Proceed, Etc.; Also Informal "Plea Bargaining")

CONCLUSION • There Are Many Different Definitions of Law • From Several Different Perspectives • Lawmakers • Law-Enforcers • Sociologists • Anthropologists • Primitive or Ancient Societies • Modern Societies

ALL DEFINITIONS AGREE: • Law is a SOCIAL Arrangement • It is a CONTRACT Between People • It is a Mechanism to Maintain Social Order • Underlying Assumption #1: • Law is Accepted by Members of Society • Underlying Assumption #2: • There Should Be Some Kind of “Fairness” in Its Application & Enforcement

LAW & SOCIETY: MAJOR THEORETICAL DEFINITIONS