Law and Justice Chapter 1 power point

1. Law: Its Function
and Purpose
Chapter 1

2. What is Law?
• Written body of general rules of conduct
• Applicable to all members of community, society, or
culture
• Emanates from governing authority
• Reinforced by its agents
• Binds people of common culture

3. Six Primary Characteristics of
Culture and Their Relationship to
Law
• Culture
• Totality of learned socially transmitted behaviors, ideas, values,
customs, artifacts, and technology of groups of people
• Six Elements
• Beliefs
• Values
• Norms
• Symbols
• Technology
• Language

4. Beliefs
• Ideas about how world operates
• What is true and what is false
• Can be about tangible phenomena
• Empirical knowledge
• Can be about intangible phenomena
• Religion, philosophy
• Laws enacted to support deeply held beliefs
• As beliefs change, so do laws that support them

5. Values
• Normative standards
• More general and abstract than beliefs
• American values transplanted and modified
• Either general or more specific
• General “core” values
• More-specific values

6. Norms
• Action component of value or belief
• Patterns social behavior in ways consistent with those
values and beliefs
• Mores
• Norms with serious moral connotations
• Folkways
• Less serious norms

7. Norms
• Laws always reflect core values and mores of culture
• Western core values generally from Judeo-Christian
heritage
• Law is social tool by which norms are passed on
between generations
• Legal scholars differentiate between two types of law

8. Norms
• Positive law
• Laws arising from norms and customs of given culture
• Natural law
• Hypothesized universal set of moral standards
• Legal positivism
• All law is morally relative and must be judged according to its
cultural context
• Essential feature of law is its coerciveness, not its moral
quality

9. Symbols
• Concrete physical signs that signify abstractions
• Can be specific
• Can be suffused with broad, emotional meaning
• Symbolism surrounding law helps those around feel
its majesty
• Help to legitimize and sustain the law

10. Technology
• Totality of knowledge and techniques a people
employ to create material objects of sustenance and
comfort
• Creates different psychical, social, and psychological
environments

11. Three Ways Technology Affect Law
(Vago, 1991)
1. Supplies technical inventions and refinements that
change ways criminal investigations are made and
law is applied
2. Advances in media may change intellectual climate
in which legal process is executed
3. Present law with new conditions with which it must
wrestle

12. Language
• Vast repository of information about culture
• Storehouse of culture
• Provides ability to formulate, articulate, and
understand rules of conduct
• Written language allows everyone to be warned in
advance of what is forbidden and what is not

13. Legal Philosophers and Scholars
• Hammurabi
• Plato
• Aristotle
• Thomas Hobbes
• John Locke
• John Rawls

14. The Code of Hammurabi
• King of Babylonia (2123–2081 BC)
• Set of judgments originally pronounced to solve
particular cases
• Administration of law in hands of priesthood
• Scribes kept records of detailed cases
• Elders acted as official witnesses at trial
• Any citizen could appeal decision directly to king

15. The Code of Hammurabi
• Governed sexual behaviors, property rights, theft,
and acts of violence
• Introduced concept of lex talionis
• Used third parties to settle disputes
• Demanded humane treatment of those accused of
wrongdoing

16. Plato (427-347 BCE)
• Theory of forms
• Defined
• We can perceive them only imperfectly
• Law is one of these forms
• Lawmakers must gain understanding of form of law
• Try to create best resemblance of it
• Human beings are imperfect copies of idea of humanness

17. Plato (427-347 BCE)
• Law is necessary to regulate self-interest
• State is superior to individual
• Only through state can citizenry be regulated
• Without law, human nature would run amok
• Humans lack power to distinguish good from evil

18. Aristotle (384-322 BCE)
• State exists so that people can not only live together,
but also live well
• Favored an egalitarian system
• Legislatures must provide for greatest good for
greatest number
• Popularized later by Jeremy Bentham
• Equated law with justice
• Goal of law

19. Thomas Hobbes (1588-1679)
• Humans are selfish and concerned only with their own
interests
• Life prior to civilized society
• “War of all against all”
• “Nasty, brutish, and short”
• Due to this, humans create a social contract
• Argued for strong sovereign to enforce
• Disavowed any notion of natural law
• No laws exist without government

20. John Locke (1632-1704)
• Held more optimistic view of human nature
• Pre-civilized society only inferior because it lacked law
• Individuals born as “blank slates”
• State of nature governed by natural laws
• Based on moral obligations
• Believed in social contract
• It should be there to provide individual freedoms

21. John Rawls (1921-2002)
• Law is comparable to scientific theory
• Original position
• Hypothetical situation of pre-political times
• Individuals were equal, rational, and self-interested
• Strongly favored equality over meritocracy
• Envisioned arranged social institutions in just society

22. John Rawls (1921-2002)
• Believed equal opportunity had to be somewhat
discriminatory
• Preferred equality of outcome
• If given choice to rewrite societal social contract,
individuals would do so under veil of ignorance
• They would be “everyone”
• They would want help for “everyone”

23. Sociological Perspectives of Law
• Law is one of six social institutions
• All make rules involving conduct
• Only law enjoys enforcement power of state
• Two influential thinkers:
• Max Weber
• Emile Durkheim

24. Max Weber (1864-1920)
• Law different from other rules in three ways:
1. Regardless of whether persons want to obey law, they face
external pressures and threats to do so
2. External pressures and threats involve use of coercion and
force
3. External pressures and treats carried out by agents of state
• Not concerned with natural law
• Focused on rationalization of world
• Increase of predictability and progress in society

25. Weber’s Fourfold Typology of Legal
Decision-Making
• Interested in how authorities make decisions when
confronted with issues of contention
• Fundamentals are
• Rationality
• Irrationality
• Rational or irrational procedures may be either
• Formal
• Substantive

26. 1. Substantive Irrationality
• Least rational
• Based on case-by-case political, religious, or
emotional reactions
• Non-legally trained person acting without set of legal
principles
• Example: King Solomon in the Bible

27. 2. Formal Irrationality
• Based on religious dogma, magic, oath-swearing, and
trial by combat or ordeal
• Formal rules followed, but are not based on reason
or logic
• Example: Settling cases in some Islamic countries

28. 3. Substantive Rationality
• Guided by set of internally consistent principles
other than law
• Decision-making applied on case-by-case basis
• Use of logic of some religious, ideological, or
bureaucratic sets of rules
• Example: Code of Hammurabi

29. 4. Formal Rationality
• Most rational and ideal
• Combines high degree of independence of legal
institutions with set of general rules
• Decision makers monitored by others
• Example: Western legal systems

30. Emile Durkheim (1858-1917)
• Interested in relationship between types of law and
types of society
• All societies exist on basis of common moral order
• Examined effects of division of labor on social
solidarity
• Social solidarity defined
• Two types

31. Mechanical Solidarity
• Relations based on primary group interactions
• Strong emotional bonds
• Simple and limited division of labor
• Strong behavioral norms
• Solidarity grows out of sameness
• Results in collective conscience

32. Organic Solidarity
• Broad division of labor
• Characterized by secondary relationships
• Goal-oriented interactions
• Results in weakened collective conscience
• Grows out of diversity and sense of social
interdependence
• Creates tolerance among minor rule breakers
• Restitutive justice

33. Two Opposing Perspectives:
Consensus Perspective
• View society as basically good, just, and more or less
provides equal opportunity
• Structured to maintain stability
• Society is integrated network of institutions that
function to maintain social order
• Stability achieved through cooperation, shared values,
and cohesive solidarity
• Conflicts arise, but only temporary

34. Two Opposing Perspectives:
Consensus Perspective
• Fits all legal theorists discussed thus far
• Law is neutral framework
• Patches up conflicts between groups who share
fundamental values
• Is both just and necessary to control socially harmful
behavior
• Legal codes express compromises between various
interest groups

35. Two Opposing Perspectives:
Consensus Perspective
• If coercion is used
• Individual’s fault, not flaw in law
• Law is obeyed out of respect, not fear
• Law is willingly supported by all good people

36. Two Opposing Perspectives:
Conflict Perspective
• View society as basically unjust, unequal, and
discriminatory
• Characterized by conflict and dissention between groups
with sharply different interests
• Limited resources
• Conflict is inevitable
• Order maintained purely by coercion
• Law functions to preserve power of most exploitive
individual

37. Two Opposing Perspectives:
Conflict Perspective
• Karl Marx and Frederich Engels
• Society best understood in terms of struggles and conflicts
between groups over scarce resources
• Society composed of two classes
• Rulers and ruled
• Conflicts always settled in favor of ruling class
• Defined as those who control means of production
• Ruled accept due to false consciousness
• Rulers create false consciousness because they are in control

38. Conflict Perspective: Critical Legal
Studies (CLS)
• Emerging legal theory in late 1960s to early 1970s
• Challenge status quo and rejected much of positive
and natural law
• Law is politics by other means
• Legal rules are series of statuses that legitimize
exploitation
• Done to detriment of workers

39. Ideal Types
• Perspectives merely ideals to discuss social
phenomena
• All societies characterized both by consensus and by
conflict
• Conflict necessary as consensus to maintain viability
of free society
• Conflict may form very foundation of later consensus in
pluralistic societies