Law and Society

Canadian Edition

Steven Vago, Adie Nelson, Veronica Nelson, Steven E. Barkan

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315443102
• Edition: 5
• Topic: Sozialwissenschaften
• Subtopic: Soziologie

Law and Society provides a balanced and comprehensive analysis of the interplay between law and society using both Canadian and international examples. This clear and readable text is fi lled with interesting information, ideas and insights. All materials and supporting statistics have been carefully updated. This edition includes an expanded discussion of the law and First Nations people, recent developments impacting LGBTIQ2S persons, and persons with disabilities and a new section on civil procedures. Each chapter is structured similarly, with an outline, learning objectives, key terms, chapter summaries, critical thinking questions, and an array of additional resources.

1

Chapter 1
Introduction

As we approach the third decade of the 21st century, law increasingly permeates all forms of social behavior. In subtle—and, at times, not-so-subtle—ways, law governs our entire existence and our every action. Law determines registration at birth and the distribution of possessions at death. It regulates prenuptial agreements, intimate relationships, pet ownership, hanging laundry outdoors to dry, and the conduct of professors and students in the classroom. It governs family and workplace relationships. Laws regulate the speed limit and the length of school attendance. Laws control what we eat and where; what we buy and when; how we use our computers; and what we can see in movie theatres, on television, or on the Internet. Laws protect ownership and define the boundaries of private and public property. Laws regulate business, raise revenue, and provide for redress when agreements are broken. Laws protect the prevailing legal and political systems by defining power relationships, thus establishing who is superordinate and who is subordinate in any given situation. Laws maintain the status quo and provide the impetus for change. Finally, laws, in particular criminal laws, not only protect private and public interests but also preserve order. There is no end to the ways in which the law has a momentous effect upon our lives.

Figure 1.1 Law increasingly permeates our lives.

Credit: Fotolia

Learning Objectives

After reading this chapter, you should be able to:

1. Identify why sociologists find the study of law to be relevant to their professional interests and outline the factors that have encouraged or hampered their investigation of the law.

2. Appreciate that “law” has been defined in diverse ways by scholars.

3. Distinguish between different “types” of law.

4. Describe the dominant legal systems that exist in the world.

5. Discuss law’s functions and dysfunctions.

6. Compare and contrast the “consensus” and “conflict” perspectives on law.

7. Identify the roles that are available to sociologists in their study of law and society and describe what these roles entail.

Overview

In every human society throughout history there have been mechanisms for the declaration, alteration, administration, and enforcement of the rules by which people live (Glenn, 2010). Not all societies, however, utilize a formal legal system (courts, judges, lawyers, and law enforcement agencies) to the same degree (Grillo et al., 2009). For example, throughout the developing world the formal systems of property rights taken for granted in industrial nations simply do not exist. In poor nations, most people cannot identify who owns what, addresses cannot be verified, and the rules that govern property vary from neighbourhood to neighbourhood, or even from street to street (de Soto, 2011). The notion of holding title to property is limited primarily to a handful of elites whose assets are identified in the formal documents and legal structures common in industrial nations.

Further, today’s agricultural societies rely almost exclusively on custom as the source of legal rules and resolve disputes through conciliation or mediation by village elders, or by some other moral or divine authority (Pottage and Mundy, 2004). As for law, such societies need little of it. Traditional societies are more homogeneous than modern industrial ones. Social relations are more direct and intimate, interests are shared by virtually everyone, and there are fewer things to quarrel about. Since relations are more direct and intimate, non-legal and often informal mechanisms of social control are generally more effective.

As societies become larger, more complex, and modern, homogeneity gives way to heterogeneity. Common interests decrease in relation to special interests. Face-to-face relations become progressively less important, as do kinship ties. Access to material goods becomes more indirect, with a greater likelihood of unequal allocation, and the struggle for available goods becomes intensified. As a result, the prospects for conflict and dispute within the society increase. The need for explicit regulatory and enforcement mechanisms becomes increasingly apparent. The development of trade and industry requires a system of formal and universal legal rules dealing with business organizations and commercial transactions, subjects that are not normally part of customary or religious law. Such commercial activity also requires guarantees, predictability, continuity, and a more effective method for settling disputes than that of trial by ordeal, trial by combat, or decision by a council of elders. As one legal anthropologist noted, using the male pronouns common in his time, “The paradox … is that the more civilized man becomes, the greater is man’s need for law, and the more law he creates. Law is but a response to social needs” (Hoebel, 1954:292).

In the powerful words of Oliver Wendell Holmes, Jr. (1881/1963:5), “The law embodies the story of a nation’s development through many centuries.” Every legal system stands in close relationship to the ideas, aims, and purposes of society. Law reflects the intellectual, social, economic, and political climate of its time. Law is inseparable from the interests, goals, and understandings that deeply shape or comprise social and economic life (Morales, 2003; Posner, 2007; Valverde, 2012). It also reflects the particular ideas, ideals, and ideologies that are part of a distinct legal culture—those attributes of behaviour and attitudes that make the law of one society different from that of another (Friedman, 2002).

In sociology, the study of law embraces a number of well-established areas of inquiry (Abadinsky, 2008; Cotterrell, 2006; Friedrichs, 2010). The discipline is concerned with values, interaction patterns, and ideologies that underlie the basic structural arrangements in a society, many of which are embodied in law as substantive rules. Both sociology and law are concerned with norms—rules that prescribe the appropriate behaviour for people in a given situation. The study of conflict and conflict resolution are central in both disciplines. Both sociology and law are concerned with the nature of legitimate authority, the mechanisms of social control, issues of human rights, power arrangements, the relationship between public and private spheres, and formal contractual commitments (Griffin, 2009; Hagan and Levi, 2005). Both sociologists and lawyers are aware that the behaviour of judges, jurors, criminals, litigants, and other consumers of legal products are charged with emotion, distorted by cognitive glitches and failures of will, and constrained by altruism, etiquette, or a sense of duty.

The rapprochement of sociology (along with economics, psychology, and other social sciences) and law is not new (Canter and Zukauskiene, 2009; Donovan, 2008; Freeman and Goodenough, 2010; Posner, 2007; Zamir and Medina, 2010). North American sociologists in the early 20th century emphasized the various facets of the relationship between law and society. E. Adamson Ross (1922:106) considered law as “the most specialized and highly furnished engine of control employed by society.” Lester F. Ward (1906:339), who believed in governmental control and social planning, predicted a day when legislation would endeavour to solve “questions of social improvement, the amelioration of the conditions of all the people, the removal of whatever privations may still remain, and the adoption of means to the positive increase of the social welfare, in short, the organization of human happiness.”

The writings of these early sociologists greatly influenced the development of the school of sociological jurisprudence, or the study of law and legal philosophy and the use of law to regulate conduct (Lauderdale, 1997:132). Sociological jurisprudence is based on a comparative study of legal systems, legal doctrines, and legal institutions as social phenomena; it considers law as it actually is—the “law in action” as distinguished from the law as it appears in books (Wacks, 2009). Roscoe Pound, the principal figure in sociological jurisprudence, relied heavily on the findings of early sociologists in asserting that law should be studied as a social institution. For Pound (1941b:18), law was a specialized form of social control that exerts pressure on a person “in order to constrain him [sic] to do his [sic] part in upholding civilized society and to deter him [sic] from anti-social conduct, that is, conduct at variance with the postulates of social order.”

Among sociologists, interest in law grew rapidly after World War II ended in 1945. In North America, some sociologists became interested in law almost by accident. As they investigated certain problems, such as race relations, they found law to be relevant. Others became radicalized in the mid- and late 1960s, a period of social unrest, and their work began to emphasize social conflict and the functions of stratification in society. It became imperative for sociologists of the left to dwell on the gap between promise and performance in the legal system. By the same token, those sociologists defending the establishment were anxious to show that the law dealt with social conflict in a legitimate fashion. These developments provided the necessary impetus for the field of law and society, which got its start in the mid-1960s with the formation of the American Law and Society Association and the inauguration of its official journal, the Law & Society Review (Abel, 1995:9).

Pue (2009) credits the formation of the Canadian Law and Society Association in the early 1980s to the participation of Canadian scholars in the American Law and Society Association and an “effervescence of intellectual energy across Canada” where “[l]aw and society teaching had been part of significant undergraduate programmes at Carleton University and York University for some time.” In addition, he identifies the 1983 publication of Law and Learning (aka the “Arthurs Report”) by the Social Sciences and Humanities Research Council of Canada as a catalyst for the establishment of both the Canadian Law and Society Association/Association Canadienne Droit et Societé (CLSA/ACDS) and the Canadian Journal of Law and Society, an interdisciplinary scholarly journal that produced its first volume in 1986 and continues to promote and publish research on law and legal systems as social phenomena.

Feminist legal scholarship emerged in Canada following the release of the 1970 report of the Royal Commission on the Status of Women and gained momentum when the Canadian Charter of Rights and Freedoms came into effect on April 17, 1982 (Brockman and Chunn, 1993:5). The National Association of Women and the Law, a national non-profit women’s organization that promotes the equal rights of women through legal education, research, and law reform advocacy, was established in 1974. In 1985, the Women’s Legal Education and Action Fund, “a research and litigation organization with a mandate to initiate, and to intervene in, cases affecting women” (Mossman, 1998:193), was created and the Canadian Journal of Women and the Law began publication (Dawson, Quaile, and Holly, 2002:105).

There are a growing number of professional journals providing scholarly outlets for the mounting interest in law and society topics. These include Law and Social Inquiry, Law and Anthropology, Journal of Law and Society, Journal of Empirical Legal Studies, European Law Journal, and International Journal of the Sociology of Law. As the names of these journals suggest, interest in law and society is not confined to North America (Johns, 2010). A few examples: Scandinavian scholars have emphasized the social meaning of justice and the public’s knowledge of the law and attitudes toward it. Russian social scientists have considered the transformation of socialist legal systems into more Western, market-oriented ones. German sociologists have studied the socio-legal implications of immigration and nationalism. International bodies such as the United Nations are also concerned with the legal issues that increasingly arise in today’s global community.

Most law and society scholars would probably agree with Eugen Ehrlich’s oft-quoted dictum that the “centre of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself” (Ehrlich, 1975: Foreword). We share Willock’s (1974:7) belief that “in so far as jurisprudence seeks to give law a location in the whole span of human affairs it is from sociology that it stands to gain most.” Sociological knowledge, perspectives, theories, and methods are not only useful but also axiomatic for the understanding and possible improvement of law and the legal system in society.

But the study of law by sociologists is somewhat hampered by difficulties of interaction between sociologists and lawyers. Both nationally and internationally, language-based approaches to issues are different in the two professions (Wagner and Cacciaguidi-Fahy, 2008). As Edwin M. Schur (1968:8) noted, “In a sense … lawyers and sociologists ‘don’t talk the same language,’ and this lack of communication undoubtedly breeds uncertainty in both professions concerning any involvement in the other’s domain, much less any cooperative interdisciplinary endeavours.” He added: “Sociologists and lawyers are engaged in quite different sorts of enterprises,” and noted that “the lawyer’s characteristic need to make decisions, here and now, may render him [sic] impatient with the sociologist’s apparently unlimited willingness to suspend final judgment on the issue” (Schur, 1968:8). The complexity of legal terminology further impedes interaction. There is a special rhetoric of law that has its own vocabulary; terms like subrogation and replivin and respondeat superior and chattel lien abound (Garner, 2001). Although social scientists do not always write clearly, lawyers use an arcane writing style that is at times replete with multiple redundancies such as made and entered into, cease and desist, null and void, in full force and effect, and give, devise, and bequeath; on occasion, lawyers have sued each other over the placement of a comma (Robertson and Grosariol, 2006). Not surprisingly, “Between specialized vocabulary and arcane style, the very language of the law defies lay understanding” (Chambliss and Seidman, 1982:119) (see Box 1.1 Lay Knowledge of the Law and Legal Literacy). Problems of interaction are also brought about and reinforced by the differences in professional cultures (Strathern, 2005). Lawyers are advocates; they are concerned with the identification and resolution of the problems of their clients. Sociologists consider all evidence on a proposition and approach a problem with an open mind. Lawyers, to a great extent, are guided by precedents, and past decisions control current cases. In contrast, sociologists emphasize creativity, theoretical imagination, and research ingenuity.

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

Box 1.1 Life and Law: Lay Knowledge of the Law and Legal Literacy

Although Canadians are more highly educated than ever before, the majority of us are not well informed about the law and the nature of our legal rights. For example, while the 1982 entrenchment of the Canadian Charter of Rights and Freedoms has been lauded as “the landmark event for Canadian law” (McLachlin, 2002), many Canadians remain unaware of the Charter’s significance, content, and function. Even the most educated of laypersons in Canada may lack accurate knowledge about the law and legal institutions.

To learn what Canadian post-secondary students know about general business law in their jurisdiction, Peter Bowal and Irene Wanke (2001) gave 264 undergraduates and 12 graduate students a questionnaire that included 15 statements pertaining to business-related laws and asked them to indicate whether these statements were true or false. Student performance indicated a significant lack of knowledge of the law.

For example, students erroneously believed that discrimination against “students” is illegal. Most were unaware of the monetary limit of their jurisdiction’s small claims court. Students commonly fused and confused “sexual harassment” with “sexual assault,” mistakenly identifying the former as a “crime” rather than as a civil wrong against human rights and employment law. Moreover, students “strongly believed that they were legally obligated to comply with the Charter of Rights and Freedoms, even though that legal document only confers rights upon them and only governments are bound by it” (Bowal and Wanke, 2001:402).

The Department of Justice Canada (2009) has noted that for our system of justice to function in a way that is “accessible, efficient and fair,” it is essential that all Canadians be informed about the law and its workings. A lack of knowledge of the law may be especially fateful in an era that increasingly demands our achievement of “legal literacy”—”the process of acquiring critical awareness about rights and law, the ability to assert rights, and the capacity to mobilize for change” (Schuler and Kadirgamar-Rajasingham,1992:2). However, while some may believe that their consumption of law-related television programs such as Law & Order, CSI, and Judge Judy furnishes them with much valuable knowledge, the content of such shows cannot and should not be construed as a reliable guide to Canadian law or its workings.

These differences in professional cultures are, to a great extent, due to the different methods and concepts that lawyers, sociologists, and other social scientists use in searching for “truth.” Legal thinking, a...