Theoretical Sociolegal Perspectives

Classical Legal Thought, Jurisprudence, Langdell’s Principles, Formal Rationality

Christopher Columbus Langdell (Dean of Harvard Law School)

1870: introduced case method in law school

Law is an exact science, much like physics, zoology, botany and chemistry. No practical experience, but knowledge gained of pure abstract law, particularly by analyzing "case law" of appellate decisions would assure a scientific understanding of law.

Judges have little independence in interpreting rules.

Constitution, statutes, and/or precedents dictate decision-making processes.

Justices should engage in syllogistic reasoning.

Judge has to only look at the facts, decide on the doctrine or principle at play, search for the appropriate rule or precedent(s), and apply it to the case.

Formal rationality

Formally rational: where internal rules are applied to all similarly situated cases in an identical manner. Rules are abstract and general. (Legal brief, consensual contract). Rules are clearly stated and applied to all similarly situated cases in an identical manner. High predictability. Law is rational to the extent that decisions are based on existing, unambiguous rules. Law is formal to the degree that the criteria, the standard used for arriving at a decision is totally internal to the legal system.

Sociological Jurisprudence

Law is seen as based on a general consensus. Law serves to resolve a myriad of social conflicts. Society is essentially harmonious, with law serving to reconcile existing interests (exam on Sundays example). The purpose of law is to maintain and to ensure those values and needs that are essential to social order, not by imposing one group’s will on others but by reconciling and mediating the diverse and conflicting interests of individuals and groups within society.

They are no radicals. They are very conservative.

Roscoe Pound, together with justices Holmes and Cardozo, mounted an attack on legal formalism (formal rationality) (1920’s to 1940’s). They analyze the social effects of law –rather than the rules and doctrines- and advocate that judges should get away from the mechanical application of law and the judge should be given a certain degree of discretion. Legal rules should only be guidelines. Pound’s sociological jurisprudence was hostile to formalism. Interest balancing theory: The law should act so as to assure the maximum amount of fulfillment of interests in a society, by minimizing sacrifices, waste and senseless frictions.

The law should attempt to recognize the maximum amount of interests and allow their fulfillment within the framework of law. Greater weight should be attached to public and social interests over private ones.

Reporter system started to demonstrate that there were many inconsistencies in the law. United States experienced massive immigration, corporate cartelization, economic depression and labor unrest. Natural rights discourse began to lose its legitimating power (difficult to decide between capital and labor).

Holmes “Life of the law has not been logic, it has been experience." Holmes in dissent took the role of judicial self-restraint and said that the political process of legislature should decide the issues.

Cardozo “Sociological method” should be principle tools for judicial practice.

Pound: Without consideration of the context and application of law, any analysis of it, or even lawmaking itself is meaningless. Pound influenced by social control perspective. Heavily influenced by sociologist Ross and philosopher William James. Interested in the results of law and how it affected people.

Two foci:

1. Refocus law from analyzing legal doctrines to the analysis of social effects.

2. We should move away from "formal rationality" (legal rules should be "guidelines").

Pound focused on "interests" (individual and social) Interest-balancing by the courts.

Legal Realism

It is a movement, which also attacks legal formalism (formal rationality) (1920’s to 1940’s).

Karl Llewellyn (politically centralist) and Jerome Frank (leftist).

The Realists attacked the notion that law is an exact science. The underlying philosophical assumptions rested on pragmatism, which was hostile to formalism, use of abstractions and exclusive reliance on strict deductive types of reasoning.

Thus, rather than relying on mechanical deductive reasoning from given rules, decision makers should be result oriented, i.e., concerned with probable consequences of their decision (formal rationality vs. substantive rationality).

Rule skepticism: there is a difference between paper rules and real rules. The decision of a case is based more on hunches, feelings, intuition, conviction or unconscious processes –extralegal factors. After the fact justifications or rationalizations can always be based on some theory, doctrine, rule, etc. Conclusions are first made on some extra legal factor and then the judges work backward for its justification. Thus, for Llewellyn it is not the rule of law that is central but the law through men. Jerome stated that the reasoning one finds in court opinions is just window dressing, i.e., formal clothes in which the judges dress up their thoughts.

Fact skepticism:

Traditional formalism: Applying the rules to the facts, judges arrive at the decisions R x F= D. However, the selection of facts is the result of a multitude of processes, some of which are hidden. Frank criticizes the frozen record. It is within the trial court proceedings that facts are established and it is here that much uncertainty exists (fact uncertainty). For Frank, judges should take as fiction that rules alone make the decision, the judges should be concerned with delivering equitable justice. The sense of justice of a keen, non-biased judge will produce an equitable decision. However, Frank also admits that with his proposal, law could become even more unpredictable. Grand vs. formal style of decision making. The formal style represents the classical, formal method in arriving at conclusions in law. The grand style is an approach in which every current decision is to be tested against life-wisdom.

The Behavior of Law and the Sociology of the Case

Donald Black (1976, 1989).

Black offers a conception of law as a patterned behavior. Law is not primarily concerned with rules and discriminatory practices are not merely aberrations but they are inherent in the very way law behaves.

The sociology of the case better explains law and offers lawyers various strategies to improve their practice and reformers to become aware of how to minimize biases within the courtroom.

For Black, law is governmental social control.

The sociology of the case

It is rooted in the tradition of legal realism and is offered as a direct challenge to legal formalism, which sees law as an affair of rules.

Lawyers should do research about cases where there is similarity as to their social structure even if they are technically dissimilar. Sociological litigation analysis should be a central component of legal practice.

Law is not assumed to be logical. Law is how people actually behave. In the sociological model the emphasis is on the social structure of the case, whereas in the jurisprudential model, social characteristics are supposed to be irrelevant, they are extralegal.

Black argues that the outcome of any litigation is based not so much on formal rationality bur rather on the sociology of the case, i.e., the social status, the degree of intimacy, speech organization between conflictual parties, the perceived authoritativeness of actors before the court, and other factors. These will influence: (i) whether a complaint will be filed in court, (ii) who will win and lose, and (iii) what the outcome will be (punishment, fine, etc).

It also predicts how third parties to the case affect it.

Speech forms also have an effect on the outcome of the case. Those testifying in the powerful speech mode are seen as more credible.

Legal Thought (Formal Rationality)

I: does a victim of a personal property theft have the right to kill in self defense?

R: Section 34 of the Cdn Criminal Code

A: In this case, the accused did not intend to kill, just to defend himself, he applied necessary force to defend himself.

C: Yes, the victim of a personal property theft has the right to kill in self defense.

No relevant rules. People who follow legal thought can’t see relevant sociological facts.

Critical Legal Studies

Three stages:

Early 1970’s: Kennedy criticized formalism and the teaching of law.

Mid 1970’s to early 1980’s: the Politics of Law Kairys

Early 1980’s:

• Rule and fact skepticism carried over from the Legal Realism. The traditional formalism, reliance on neutral and linear logical reasoning, and the belief in neutrality, objectivity, predictability and the stability based on stare decisis are a Big Lie.
• The notion of legitimacy is central in CLS critiques. People are led to believe that they are governed by the rule of law, not men. They argue law is ideology, which is shaped by the help of law.
• CLS questions Langdell’s teaching method.
• CLS is currently in search of theory.
• CLS generally discount instrumental versions of Marxism. They see law as being relatively autonomous. Law is neither the direct servant of a power elite nor is it totally independent of the dynamics of capitalism.

• CLS methodology of examining case law and opinions is one of deconstructing, i.e., a critical examination of underlying, unstated assumptions that inhere in case opinion. These are made visible and traced to particular groups. Unlike feminism, there is not much of a vision for reconstruction.
• Two practices are embedded in deconstruction: reversal of hierarchies and liberation of the legal text from the original author.
• Reversal of hierarchies: Any value position becomes dominant and the other one repressed, so one is privileged as present and the other one is repressed and is rendered absent. So, we should start with the idea that any term (presence) always implies a hidden one (absence). The trace is the part that exists in each and maintains the relation.
• Free play of text: once the text is constructed the text takes a life of its own. This leads to “why bother about anything, all is relative” or what possibly can an adequate support for their position be?

Roberto Unger is the most prominent critical legal scholar.

Feminist Jurisprudence

It took shape in the late 1980’s in the USA. Law presents a number of limitations to the realization of social values:

Due to the reliance on precedents (stare decisis), the established body of law is overly phallocentric (male dominated) and any issue that deviates from this body of knowledge is less likely to attain a hearing and a favorably resolution.

The court’s focus on the rational and coherent is another limitation. Feminists’ claims often arise from a multitude of sources, which may appear to be contradictory at times.

Feminist standpoint epistemology identifies woman’s status as that of victim, and then privileges that status by claiming that it gives access to understanding about oppression that others cannot have (Bartlett).

Thus, this approach sees the knowledge as based upon experience of the oppressed but it rejects objectivity and any possibility of an essential truth.

Feminist Legal Methods (Bartlett)

Rooted in a standpoint epistemology, feminists should focus on at least three factors:

Asking the woman question, i.e., what needs to be articulated is the often silenced voice of the excluded, which entails looking beneath the surface of law to identify the gender implications of rules and assumptions underlying the rules that do not perpetuate women’s subordination.

Feminist practical reasoning: This method privileges a feminist practical reasoning, which takes into consideration the experiential –the unique concrete experiences of the repressed instead of deductive logic. It looks at multiple perspectives, contradictions, and inconsistencies. Use self-reflection.

Conscious raising: the goal is for individual and collective empowerment not for personal vendettas.

In sum, this feminist legal method is focused on deconstruction and reconstruction.

Law and Economics Movement

Market exchanges are a function of the legal order.

Assign rights in a manner that minimizes the amount of overall costs (usually involving the transaction costs).

Coase theorem: Courts are concerned with assigning rights to the party that would find them most worthwhile to purchase and also involves the least amount of transaction costs if they are sold to another party.

Structural Functionalism

Structural functionalism is one of the main schools of thought of a social system, which looks at the overall functioning of a social system and asks what purpose a particular institution, including law, serves within the overall scheme of things.

It places emphasis on the socialization process by which shared values and outlooks are acquired.

Human nature is connected to the idea of tabula rasa and society writes its program on it. Home duplex: man is half egoistic and half altruistic.

People perform many social roles, which are learned in early childhood experiences and are enforced in every day behavior.

A social role has two components: occupiers of a role are expected to behave in certain ways and the person within the role feels a sense of obligation to perform certain acts that are consistent with the role assumed.

Roles are also situated within a context which provides background relevancies.

Roles in combination with some community standard structure everyday behavior.

Different organs have to be integrated in one whole for smooth functions of the organism. Any malfunctioning in one organ will have effects on others. Deviance and pathology mean anything that disturbs the overall balance or equilibrium. Excessive strain or inadequate socialization are the prime determinants of deviance, which is seen as out of adjustment and harmony or in a state of anomie (Durkheim).

Well adjusted individuals are those that have been socialized into accepting the obligatory character of roles in society (homeostasis).

The central role of law is to integrate various roles and institutions for the smooth functioning of the whole society. The primary function of law is integrative.

Niklas Luhman: the function of law is not primarily repressive. It is facilitative and provides a predictable environment in which subjects can plan and carry out their everyday activities and be assured that disappointments will be few, and if they do occur there will be remedies to put things back in order.

The essence of law is congruently generalized normative behavioral expectations.

Behavioral expectations stands for the idea that each person in the interaction with the others has certain expectations of the other as to what might take place.

Normative: a pattern of expectations becomes stabilized over time.

It is congruently generalized to the extent that both self and the other acquire and assume similar expectations of each other in interactions.

Law helps to stabilize mutual expectations. It produces order, i.e., it establishes a rule that both inter-actors take as a given, as a premise for further action, which can continue coherently with minimal friction.

In primitive societies predictability is high as tradition assures that a set of behavioral expectations is internalized by all. In more complex societies, law fulfills this function.

Evolution of law

Luhman has an evolutionary theory of law. The motor of this evolutionary process is the increasing complexity of society. With increasing complexity more demands are placed on law to be more effective in establishing congruent generalizations.

Three stages: archaic laws: Society is based on kinship, complexity is low, expectations of the other are stable. The time perception is the present. Laws are simply reactive to right a wrong.

Pre-modern high culture: differentiation has begun, economic developments –the change from agriculture to trading- are the main determinants. The judge is now vested with power to decide the correct expectations. Law becomes more complex. It is now made up of an increasing body of procedural rules.

Positivisation of law: decision making demands the application of consciously examined laws. Laws have the goal of offsetting the destabilizing conflicts so as to reduce uncertainty in interactions. The ideal end is homeostasis. Law has future effects.