Law and Society

An Introduction

Steven E. Barkan

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351578615
• Topic: Social Sciences
• Subtopic: Sociology
• Edition: 2

This multidisciplinary text draws on the work of anthropologists, historians, law professors, political scientists, psychologists, and sociologists to outline how law is an essential social institution that shapes and is shaped by society. This second edition of Law and Society incorporates the latest research, with dozens of new references, along with many up-to-date examples gleaned from newsworthy events. Two new pedagogical features in each chapter will help students absorb information: learning objectives that precede each chapter's discussion, and "Thinking about Law and Society" questions that end each chapter and encourage students to think more deeply about specific issues.

1 The Social Nature and significance of Law

Chapter Outline

The Significance of Law for Society and for Ourselves

– The Social Functions of Law

– The Dysfunctions of Law

The Study of Law and Society

– Traditional and Social Science Views of Law

– Assumptions in the Study of Law and Society

– What Does Law and Society Study?

Law and Justice

– Illustrating the Conflict between Law and Justice

– The Case of the Speluncean Explorers

– Law and Logic in Tumultuous Times

The Plan of the Book

Summary

Thinking about Law and Society

Key Terms

Learning Objectives

1. Describe the social functions of law.
2. Explain how law may be dysfunctional for society.
3. Distinguish the major differences between the traditional and social science views of law.
4. List the major assumptions in the study of law and society.
5. Describe a real-life historical example for which the logic of the law was in tension with just results.

The title of this chapter is also the major theme of this book’s introduction to law and society. You will see that law is a social phenomenon and thus highly significant for many reasons. To begin doing so, consider some recent issues and events that demonstrate the importance of law for so many aspects of our lives.

Many legal matters made headlines in 2017. In June of that year, family members of two black men killed by police reached settlements of wrongful death lawsuits they had filed. The mother of Philando Castile, fatally shot in a suburb of St. Paul, Minnesota, in July 2016, reached a settlement of almost $3 million, while the family of Michael Brown, fatally shot in Ferguson, Missouri, in August 2014, reached a settlement of $1.5 million (Smith 2017).

Earlier in 2017, a lawsuit filed in federal court alleged that the state of Mississippi was violating federal law by failing to provide equal schooling to black children. One of the plaintiffs, the mother of a first-grade boy, said, “I’m filing this lawsuit because the state has an obligation to make the schools that black kids attend equal to the schools that white kids attend” (Amy 2017).

Immigration was also a dominant legal issue in 2017, as federal courts ruled against the Trump Administration’s plan to ban immigration from six mostly Muslim nations before the U.S. Supreme Court partially lifted the ban pending a full hearing later in the year (Shear and Liptak 2017). Meanwhile, a federal court enjoined the Trump Administration from withholding federal funding from “sanctuary cities” that promised to protect unauthorized immigrants from deportation (Ford 2017), and President Trump pardoned an Arizona sheriff who had been found in contempt of court for racial profiling in stopping and detaining Latinos on suspicion of immigration violations (Liptak 2017).

Legal issues also emerged in 2017 surrounding the violent march and rally by white supremacists and neo-Nazis in Charlottesville, Virginia, in August of that year. During the protest, a white supremacist allegedly murdered a 32-year-old woman, Heather Heyer, when he drove a car into a group of counter-protesters. In the wake of the protest and her death, observers debated whether the First Amendment’s guarantee of freedom of speech should protect the right of hate groups to protest in public (Goldstein 2017; Park 2017).

Many other urgent issues were also legal issues in 2017. A series of hate crimes early that year led several states to consider legislation for harsher penalties for people convicted of these crimes (Burch 2017). Several other states considered or passed legislation and pursued other legal efforts to restrict abortion (Smith and Najmabadi 2017; Stolberg 2017). Maryland and the District of Columbia filed a lawsuit alleging that Donald Trump’s presidency was benefiting his businesses in violation of the Constitution (LaFraniere 2017), even as a special counsel was investigating President Trump’s associates for possible collusion with Russia in the 2016 national election and the president himself for possible obstruction of justice in this investigation (Barrett et al. 2017). Perhaps striking a blow for airline passengers everywhere, a 69-year-old man who was violently dragged from a United Airlines plane for refusing to give up his seat reached a confidential settlement with United (Aratani 2017).

Meanwhile, a federal appeals court in Chicago ruled that the 1965 Civil Rights Act bans workplace discrimination against LGBTQ employees (Briscoe 2017); lawyers helped climate scientists to thwart efforts by climate change deniers to cast doubt on their research (Schwartz 2017a); two counties and one city in California sued 37 fossil fuel companies to recover their expenses from dealing with climate change (Schwartz 2017b); Democratic state attorneys general across the nation launched dozens of lawsuits against the Trump Administration on a wide range of matters (Peoples 2017); the Supreme Court ruled that states must list both same-sex spouses on a newborn’s birth certificate even though one of them is not the biological parent of the baby (Wolf 2017); and the University of California system sued the White House to save a national program, Deferred Action for Childhood Arrivals (DACA), that protects young undocumented immigrants from deportation (Shear 2017).

Celebrities were also involved with the law in 2017. Singer Taylor Swift won a lawsuit against a Denver radio host who had put his hand up her skirt while posing with her for a photo. Swift said after the jury trial, “My hope is to help those whose voices should also be heard. Therefore, I will be making donations in the near future to multiple organizations that help sexual assault victims defend themselves” (Lett 2017). In a very different legal matter, talk show host Conan O’Brien was sued for allegedly stealing a comedy writer’s jokes and using them on his show (Deb 2017).

The Significance of Law for Society and for Ourselves

Ripped from the headlines, these issues and events are but a few of the many items with legal underpinnings and implications we could have discussed. Together, they deal with matters of race, gender, sexual orientation, immigration, and the president’s behavior. Two examples also involved attempts to use legislation to punish hate crimes and to restrict abortions. All these examples remind us that law is an intrinsic part of our society, and that much of how our society works cannot be understood without appreciating the role that law plays.

Law is important not only for our society but also for us as individuals. In our daily lives, law governs how we behave. Driving a car is an obvious example: the side of the road on which you drive, the speed at which you travel, stopping at a traffic light or stop sign, and other aspects of driving too numerous to mention are all behaviors governed by law. If you have ever signed a lease for an apartment, paid taxes, or gotten married or divorced (or at least ever contemplated marriage), then you again are following legally prescribed procedures. Complex legal regulations also govern the design, production, and sale of the many products that you purchase regularly: food, clothing, electronics, and textbooks like this one.

Depending on how law is defined (more on that later), the rules governing your campus are also legal in nature. Most or perhaps all campuses have codes of conduct governing plagiarism and other forms of cheating, sexual harassment and sexual assault, and other behaviors, and they have procedures for addressing violations of these codes. These codes parallel the rules and procedures found in the larger society. Although most of the examples in this and the previous paragraph have involved law regulating the relationship between the government (or campus) and the individual, the apartment lease example reminds us that law also helps to manage the interaction between two (or more) individuals or organizations. Ideally, law eases interaction rather than aggravating it, but sometimes law may worsen a problem more than helping to resolve it.

In all these respects and more, law plays a fundamental role in our society and in our lives, and it does the same in other societies across the world. As prominent law and society scholar Lawrence M. Friedman (Friedman 2004:3) once observed, “In the world we live in—the country we live in—almost nothing has more impact on our lives, nothing is more entangled with our everyday existence, than that something we call the law.” This significance of law is why social scientists study it, just as they study the family, religion, education, medicine, and other social institutions. Thus, while the term law often refers to rules and regulations, the term also refers to the social institution of which rules and regulations are an important part. “Law” will be used in both these ways throughout this book.

The Social Functions of Law

As a social institution, law ideally serves important functions for society. One of these functions is to help maintain social order. This is called the social control function. Without law, society would be more chaotic, it is even true that law sometimes aggravates situations rather than improving them; without the criminal law and criminal justice, in particular, there would probably be much more crime. If you had been asked before taking this course, “What is the most important function that law serves for society?”, this is probably the function that would have first come to your mind. In addition to keeping the crime rate lower than it would otherwise be, law also governs many aspects of our lives, as noted earlier, and again helps to preserve social order in this manner.

Social order is also threatened when individuals have disputes over various issues that they cannot resolve by themselves or may resolve only by resorting to threats, violence, and other behaviors normally considered inappropriate. In both traditional and modern societies, law provides a vehicle for the possible settlement of disputes among individuals, groups, and organizations. This second function of law has various names, including dispute settlement and conflict resolution, and it is one that anthropologists have especially emphasized in their studies of law in traditional societies.

Although social control and dispute settlement, and the more general preservation of social order, may be the most familiar functions of law, other important functions also exist. One of these is social change. In many societies, but perhaps especially in the United States, law has often been considered a key tool for bringing about changes in individual behavior, for altering the nature and dynamics of certain social institutions, and for effecting broad changes in the larger society. In the stories of 2017, we saw examples of law being used to produce social change in such areas as same-sex marriage, hate crime, and abortion. Depending on your views about these issues, law can be used to produce beneficial social change, but it can also be used to produce harmful social change.

Another important function of law, at least in a democracy, is the preservation of civil rights and civil liberties and more generally of individual freedom. In the United States, this function is a key element of our Constitution and Bill of Rights and the subject of many rulings by the U.S. Supreme Court. The term rule of law captures this idea and more formally means that no one in a democracy, no matter how wealthy or powerful the individual may be, is above the law. President Richard Nixon was forced from office in 1974 for putting himself above the law with various illegal actions as part of the Watergate scandal. In a memorable statement, President Nixon once declared, “When the President does it, that means that it is not illegal,” but it was precisely this belief that the U.S. House of Representatives rejected when it was about to impeach him just before he resigned. In a similar vein, many critics said in 2017 that various statements and actions by President Trump, including his firing of the director of the Federal Bureau of Investigation, his stated support for police brutality, and his pardon of the Arizona sheriff mentioned earlier, showed his disdain for the rule of law, with one op-ed headline calling him “a one-man assault on the rule of law” (Haberman 2017; Marcus 2017).

A final function of law is the expression of a society’s moral values on important social and political issues. Ideally, law should reflect a social consensus on appropriate and inappropriate behavior and on the structure and functioning of a society’s basic social institutions. Law in this sense not only reflects a society’s moral values but also helps to transmit these values from one generation to the next.

The Dysfunctions of Law

Law is ideally functional for society in all the ways just discussed, but law also has its dysfunctions as well. Perhaps the most serious dysfunction is that it may create and perpetuate inequality. Many scholars believe that law, even in a democracy like the United States, benefits individuals and groups with wealth and power over those without wealth and power, in particular the poor, people of color, and women. In this way, law is said to help perpetuate the inequality that already exists in American society. As Richard L. Abel (1989:vii), a former president of the Law and Society Association, once put it, “All law is inescapably two-faced. It reproduces and justifies existing inequalities and injustices; yet it also embodies ideals and offers mechanisms through which they can be pursued.” Although various reforms may have created a more equal legal playing field in recent decades, evidence supporting the inequality dysfunction of law is abundant and is discussed further in Chapter 7.

In a related dysfunction, law may reflect the moral values of influential social groups rather than a consensus in society over these values as assumed just above. To the degree this happens, law does not express the moral values of groups without power and influence, and members of these groups may be punished if their behaviors are legally banned. A historical example of this dysfunction is the passage of the Eighteenth Amendment in 1919 that banned the manufacture, sale, and possession of alcohol. As Chapter 6 will recount in greater detail, the forces behind Prohibition were individuals and groups from white, rural, and Protestant backgr...