Introduction to Sociology of Law

Conceptualizations of Law

Conventionalists:

Law cannot be defined.

Essentialists:

Law has an essence of its own and it is possible to specify the conditions that must be met in order to assert that law, as well as its legal system, exists. This can be done by analyzing its components.

Positivist or Classical Legal Thought (Hans Kelsen, John Austin)

A law is a command of the sovereign. If the command is not followed, there is a sanction, which may be either punitive, such as in criminal law, or privative, i.e., you are deprived of the enforcement power of the state with respect to the transaction in question.

Legal Realism:

Benjamin Cardozo: A principle of rule of conduct so established as to justify a prediction that it will be enforced by the courts if its authority is challenged.

Oliver Wendell Holmes: law is what the courts do.

Sociological:

Max Weber: An order will be called law if it is externally guaranteed by the probability that coercion –physical or psychological- will be applied to bring about conformity or avenge violation by specialized personnel.

(i) pressures to comply with the law come externally in the forms of actions or threats of action by others; (ii) these actions involve coercion; (iii) those who apply coercion are officials whose official role is o enforce the law.

Law and Sociology

Law can be analyzed sociologically as a method of doing something. Law can be studied as a social process, instrumented by individuals during social interaction. Sociologically, law consists of the behaviors, situations, and conditions for making, interpreting and applying legal rules that are backed by the state’s legitimate coercive apparatus for enforcement.

Types of law

Substantive vs. procedural

The content of law may be categorized as substantive or procedural.

Substantive laws consis of rights, and prohibitions administered by courts. Procedural laws are rules concerning just how substantive laws are to be administered, enforced, changed, and used by players in the legal system.

Public vs. private

Public law is concerned with the structure of government, the duties and powers of officials, and the relationship between the individual and the state.

• Criminal
• Constitutional
• Administrative
• Tax

Private:

It is concerned with rules governing relationships between individuals.

• Contractual: Exchange of promises backed by consideration.
• Torts: Harm
• Corporate
• Family

Major legal traditions

· Common Law

· Civil Law

· Chtonic

· Islamic

· Talmudic

· Hindu

Functions of law

· Social control

· Dispute resolution

· Social change

Social control:

There are two basic processes of social control: the internalization of group norms and control through external pressures.

In Chtonic societies, social control is ensured by the fact that socializing experiences are very much the same for all members. Even in larger societies, social control rests largely on the internalization of shared norms.

Formal social control is characterized by: (i) explicit rules of conduct, (ii) planned use of sanctions to support the rules, and (iii) designated officials to interpret and enforce the rules, and often to make them. Law does not have a monopoly on formal mechanisms of social control.

Control through law is usually exercised by the use of negative sanctions and not by positive rewards. A person that obeys the law does not receive an award.

Mechanisms of social control through law: (i) Criminal sanctions, (ii) civil commitment, and (iii) administrative licenses.

Criminal sanctions: the purpose of sanctions: Retribution (denounce unlawful conduct)

Deterrence (both specific and general), Rehabilitation of the offender.

Civil commitment: medicalization of social problems, such as drug abuse, alcoholism, etc.

Administrative law: administrative regulations is used as a means of social control. Three types of administrative agencies in Canada: self-governing bodies, independent regulatory agencies, and departmental regulatory agencies.

Requiring and granting a license to perform certain activities is a classic control device. Licenses are required for more than 5000 occupations in Canada. Underlying all regulatory licensing is a denial of a right to engage in the contemplated activity except with a license. Licenses can also be revoked and suspended.

Dispute resolution:

Types:

By the parties themselves: physical violence, family feud, lumping it, avoidance, etc.

By adjudication:

ADR: negotiation (without the help of any third party), mediation (third party helps disputants), and arbitration (third party makes a final and binding decision, which is enforceable).

Hybrid resolution processes: rent a judge (like arbitration, but with a retired judge), med-arb (issues not solved by mediation are sent to arbitration where the mediator becomes arbiter), and mini trial (if there is no settlement before the “sentence” the adviser gives her opinion about the likely outcome if the dispute were litigated).

Adjudication: a formal method of conflict resolution, where a third party –the courts- intervenes –even if not wanted by the parties- and renders a decision which is enforceable.

Case and controversy: there must be standing (before in Canada a pecuniary, proprietary or economic claim or one to personal property, now these requirements were relaxed and there must be a genuine interest), the dispute must be ripe (not moot) and there must be jurisdiction (and justiciability, e.g., no political questions). Also, the claim has to be within the statute of limitations.

Social change

Law is both a dependent and an independent variable, i.e., an effect and a cause of social change. The question is not whether law changes society or whether social change alters law, but rather, what level or under what circumstances change is produced.

Examples of social changes as causes of legal changes: Soviet Union, China, and other radical revolutions.

Examples of legal changes as causes of social changes: adultery, sexual assault, etc.

Dysfunctions of Law

Tendency toward conservatism.

Social changes often precede changes in the law.

Need for authority.

Discrimination.

Sociology of Law: the purpose is to demonstrate the connections between sociology and law. For the classics, such as Durkheim, Weber and Marx, the essential connection was the structural conditions that appear to give rise to different kinds of law and legal systems. They react against legal positivists, such as Kelsen and Hart, and natural law scholars.

Sociology of law clearly demonstrates that law is born of socio-political contexts, themselves existing in different historical eras, that it serves some interests rather than others, that different social structures or forms of organization give rise to different laws and legal systems and that a combination of coercive and ideological processes are at work to ensure the continuation of existing legal systems and through these, existing structures of domination.

Sociology of law is not the study of law and society but the interrelationship of law with society, such that each is part of the other.

Sociology of law is the study of (i) the evolution, function and justification of forms of social control, (ii) the forms of legal thought and reasoning as they relate to a particular political economic order, (iii) the legitimation principles and their effects, (iv) the causes of the development of the form of social control, (v) the transmission of “correct” methods of legal reasoning, (vi) the creation of the legal subject with formal, abstract and universal rights, (vii) the degree of freedom and coercion existing in the form of law.

It examines the evolution of the legal forms and how they become the dominant factors in legal thinking and in the resolution of conflicts in society. The emphasis is on specifying the causes of law, legitimation principles, the specific legal discourse and forms of legal reasoning that arise, the development of a specialized staff, the evolution of the legal subject –the reasonable man in law- and to what degree coercion and freedom exist in law. Finally, it examines the connection between the form of law and the political and economic sphere.

Thus, sociologists of law would criticize lawyers (jurisprudes) for uncritically accepting categories generated from historically specific socio-economic relations. Since the turn of the 20^th century the jurisprudence school of thought ahs dominated the analysis of law.

Problems of interaction between sociologists and lawyers

Sociologists study everything about the law, except for rules –institutional structures, processes, behavior, personnel, and culture.

Lawyers and sociologists don’t speak the same language. There is a special rethoric of law. It has its own vocabulary, an arcane writing style, and a form of irritating citation.

There are also differences in professional culture. Lawyers are advocates. They are concerned with the identification and resolution of the problmes of hteir clients. Sociologists consider all evidence on a proposition and approach the problem with an opne mind. Lawyers are guided by precedents and past decisions control current cases. In contrast, sociologists emphasize empirical research. Lawyers and law professors tend to believe that they have a monopoly over law. This is as if physicians thought that they had a monopoly over the bodies.

The pronouncements of law are predominantly prescriptive: they tell people how they should behave and what will happen to them if they don’t. In sociology, the emphasis is on description, on understanding the reasons why certain groups of people act in a certain way in specific situations. The law reacts to problems most of the time. The issues and conflicts are brought to lawyers by their clients outside the legal system. In sociology, issues and concerns are generated within the discipline on the basis of what is considered intellectually challenging, timely, or of interest to funding agencies.

These differences are due in part to the diffferent methods they use.

Legal thinking vs. scientific thinking