SOCIOLOGY OF LAW: THEORIES OF LAW

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

2. MAJOR THEORIES/THEORISTS TO CONSIDER • 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

3. HENRY MAINEENGLISH PHILOSOPHER • Wrote of “Ancient Law” – 1961 • 3 Stages of Law: • Themistes: Arbitrary Ruler (Patriarch, King) – Makes All Decisions • Customary Law: Decisions of Ruler Agreed to by Other Leaders of the Society • Era of Codes: Written Rules & Guidelines Allows Decisions to be Validated on Basis of Previous Actions

4. MAX WEBERGERMAN 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

5. MAX WEBER’S LAW TYPES                                   Basis of Decisions                                                 Rule of Law                                    Rule of Men                                                 Logical/Scientific/Objective            Substantive --                                                 Means - End Rationality                    Consider Individual                                                                                                             Circumstances Legal Procedure Rational:                                 A. Western/U.S. Law                  C. Case by Case -- but Formal --                                                                                      following a standard  Use Established Rules                                                                 (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)

6. CRITIQUE OF WEBER’S SCHEME • “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!)

7. THEORIES OF LAW– DURKHEIM • 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

8. 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

9. MECHANICAL SOLIDARITYNature of Structure • 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

10. MECHANICAL SOLIDARITYHYP: Consequence of Structure • 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

11. ORGANIC SOLIDARITYNature of Society • 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

12. ORGANIC SOLIDARITYHYP: 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.

13. 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

14. 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

15. 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)

16. CONCLUSION REDURKHEIM’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

17. FUNCTIONALIST ANALYSIS OF LAW • 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

18. 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

19. 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

20. 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

21. 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)

22. 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

23. DYSFUNCTIONS OF LAW(Friedman) • 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?

24. 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

25. 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?

26. 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.)

27. 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

28. ALTERNATIVE VIEW TO FUNCTIONAL THEORY OF LAW SOCIAL CONFLICT THEORY OF LAW Karl Marx Richard Quinney William Chambliss

29. BASICS OF CONFLICT THEORY Really No “Consensus” Over Law Society Is Divided Into “Haves” & Have-Nots” Law Is Imposition of Power By Powerful

30. CONSENSUS • 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?)

31. POWER & LAW • 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

32. HAVES & HAVE-NOTS • 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

33. SUM: CONFLICT THEORY • Conflict Theorists Say: • Really No Overall Consensus In Society Re Law • Question The Basic Assumption On Which Functionalist Theory Is Based.

34. SUMMARY: FUNCTIONALISM vs. CONFLICT THEORY • What Do You Think? • Functionalism: Excellent Analysis Tool … • Conflict Theory: More Accurate Description of Reality?

35. NEXT TOPIC:MAJOR ISSUE: RELATION OF LAW & MORALITY Major Authorities: Lon Fuller (Jurist) Oliver Wendell Holmes (Jurist) Robert Cooley Angel (Sociologist)

36. NEXT TOPIC:MAJOR ISSUE: RELATION OF LAW & MORALITY Major Authorities: Lon Fuller (Jurist) Oliver Wendell Holmes (Jurist) Robert Cooley Angel (Sociologist)