Law and Society

11 Key excerpts on "Law and Society"

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  Law and Society

  An Introduction

  • John Harrison Watts, Cliff Roberson(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  For the purposes of this text, we will consider Law and Society as the field of study that encompasses the many relationships between, and the effects of law on, the social sciences and humanities. However, many researchers consider that the two terms, Law and Society and sociology of law , are interchangeable. For example, Dragan Milovanovic’s definition of the sociology of law is very similar to Trevino’s definition of Law and Society. 3 The disciplines of law and sociology are both concerned with norms, which are rules that prescribe the appropriate behavior for people in given situations. Both are also concerned with the nature of legitimate authority and conflict resolution. Other concerns of both disciplines include issues of human rights, mechanisms of social controls, the relationship between individuals and political organizations, and formal contract commitments. 4 While there are many overlapping concerns, as we will note later, there are also substantial differences between law and sociology. In the study of Law and Society, we should keep in mind that the law is an authoritative and reactive problem-solving system that is designed to meet specific social needs. The search for truth has different meanings to the law-yer and the social scientist. Lawyers and social scientists are, also, reinforced by different professional cultures. Legal thinking is also different from “sci-entific” thinking. As noted by Vilhelm Aubert, reasons for this difference in thinking include: • Law is more inclined toward what happened in a specific case, while the social sciences focus on the general. • Law does not attempt to establish dramatic connections between means and the ends, e.g., the impact of the verdict on the defendant’s future conduct. • The truth in law is normative and not probabilistic, i.e., a law is valid or invalid, or something happened or it did not happen. There is no middle ground.

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  Law and Society

  A Sociological Approach

  • James J. Chriss(Author)
  • 2019(Publication Date)
  • SAGE Publications, Inc

    (Publisher)

  2 Fundamentals of Law and Society

  Introduction

  This chapter will provide to students the broad contours of the field of the sociology of law. What will be emphasized is understanding law and the legal system with reference to the social system within which it is situated. As we saw in Chapter 1 , evidence of legal systems stretches back to approximately 3500 B.C., and it was important to spend some time tracing out this history into the modern era. For the most part, from here forward, we will be interested in modern law, and specifically, in modern western law since 1800. This decision has been made to reduce the complexity of our topic, especially insofar as a distinctly sociological perspective did not come on the scene until approximately 1880, with the institutionalization of sociology in America. Modern law, that is, law codified into statutes and backed by a constabulary force, means that social development must have reached the stage of written language situated within a well-establish political system (the state).

  Indeed, modern law is shot through with political posturings and negotiation over collective understandings of the relation between the individual and society. At heart, law and politics struggle with this basic dichotomy, that is, balancing the interests of individuals against the group (whether at the level of the neighborhood, the organization, the community, the city, the state, or the nation). Before summarizing the key contributions to law from the perspective of philosophy, jurisprudence, and later the sociological perspective, we will first discuss some of the key distinctions and legal principles found within law.

  Substantive and Procedural Law

  To avoid arbitrariness, modern law is concerned with being as explicit as possible concerning the rules for doing law. This means that a very large subfield within law itself is procedural law, namely, the rules, regulations, and requirements concerning the carrying-out of the legal process in particular realms of practice.1

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  Sociology of Law

  • Norman K. Denzin, Georges Gurvitch(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  2 Cf. my discussion at the above mentioned congress, p. 248-249.

  Having achieved a definition of law which seems to us simultaneously broad enough and precise enough to permit us to envisage all levels and manifestations of the social reality of law, we may now proceed to describe exactly the object and problems of the sociology of law.

  VI. THE DEFINITION OF THE SOCIOLOGY OF LAW

  We are now in a position to define the precise framework of this new discipline, that is to say, its object and its method as well as the fundamental problems which it is called upon to solve.

  The Sociology of Law is that part of the sociology of the human spirit which studies the full social reality of law, beginning with its tangible and externally observable expressions, in effective collective behaviors

  (crystallized organizations, customary practices and traditions or behavioral innovations) and in the material basis (the spacial structure and demographic density of jural institutions).

  Sociology of law interprets these behaviors and material manifestations of law according to the internal meanings which, while inspiring and penetrating them, are at the same time in part transformed by them. It proceeds specially from jural symbolic patterns fixed in advance, such as organized law, procedures, and sanctions, to jural symbols proper, such as flexible rules and spontaneous law.

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  A Sociological Theory of Law

  • Niklas Luhmann, Martin Albrow(Authors)
  • 2013(Publication Date)
  • Taylor & Francis

    (Publisher)

  3 Law as structure of society 3.1 The development of society and law Classical sociology of law attempted to pick up the threads of social theory. At that time, however, social theory was in the process of dissolution. The newly developing body of sociological research instruments established theoretical and methodological claims which could not be satisfied by the old holistic ideas of society. Social theory that sought to embrace the whole of human communal existence collapsed. This has also prevented the further development of the sociology of law, or directed it into the channels of what is methodologically possible and thus turned it into a sociology of professional roles, decisionmaking processes and opinions, which no longer has law as the central theme. The reasons for this process of dissolution are in no way eliminated. There is still no reasonably adequate social theory based upon new foundations. 1 Every endeavour to establish a theoretically founded sociology of law must, under the circumstances, have a temporary or insecure appearance. An exhaustive description and evaluation of current discussion is not possible in this context. However, we will have to introduce some of the basic traits of the new consolidating conceptual foundations. An understanding of the interconnection of societal and legal development is not possible without clarifying these premises. On the other hand, we can only expect the sociology of law to make a contribution to the creation and empirical control of social theory if the analysis of legal development explicitly takes account of the problems in it. Following suggestions made for the further development of systems theory, 2 it seems relevant to understand society as a social system which can maintain constancy in relations of meaning between actions in an over-complex and contingent environment

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  Law, State and Society

  • Bob Fryer, Alan J. Hunt, Doreen McBarnet, Bert Moorhouse(Authors)
  • 2018(Publication Date)
  • Taylor & Francis

    (Publisher)

  1

  LAW, STATE AND SOCIETY

  Bob Fryer, Alan Hunt, Doreen Mcbarnet and Bert Moorhouse

  The 1979 British Sociological Association Conference on Law and Society set out to achieve three aims, reflected in the choice of papers for this volume: first, to develop theoretical explorations in a field which had for so long been theoretically underdeveloped; second, and closely related, to encourage theoretically informed empirical investigation, as a conscious move away from what Campbell and Wiles have called the ‘socio-legal’ approach,1 focusing on pragmatically identified ‘problems’ and purporting to adopt a theoretically neutral empirical methodology; third, to redirect the focus of research from criminal law towards civil law and deeper underlying questions of the form of law. Criminal law may have been the logical focus for a sociology of law revived through radical criminology.2 But the roots of the sociology of law go back much further to the grand theorists, Marx, Weber, Durkheim, and to the core of sociological theory.

  Indeed the concerns of the sociology of law converge with the most important questions confronting contemporary sociology for reasons other than its historical roots. The sociology of law in Britain has barely reached the level of a recognised sub-discipline of sociology. It occupies a marginal place in the organisation of academic sociology and just as precarious position on the fringe of legal education. Yet the very fact of its late achievement of sub-disciplinary status has meant that it has not become entrapped in the self-protective specialisation which both protects and immunises many sociological sub-disciplines from the wider concerns of the social sciences as a whole. One major consequence of sub-disciplinary specialism manifests itself in the tendency for the sociology of law to become narrowly linked to the requirements of facilitating reforms in the administration of the legal process to such an extent that concern with the social and political context within which the legal system is located has received much less attention. It is thus significant that some of the work that has had the greatest impact on the field has come from people who are not ‘sociology of law’ specialists. Important examples of such interventions have been the very provocative discussion of ‘the rule of law’ by E.P. Thompson in the conclusion of Whigs and Hunters , in which he has insisted on ‘the unqualified human good’ embodied in the rule of law in opposition to the prevailing tenor of Marxist discussion which has relegated the rule of law as bourgeois ideology.3 Similarly the work of Stuart Hall and his colleagues in Policing the Crisis articulates an explicitly Gramscian perspective to the theorisation of law.4

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  State Apparatus

  Structures and Language of Legitimacy

  • Gordon L. Clark, Michael Dear(Authors)
  • 2021(Publication Date)
  • Routledge

    (Publisher)

  Secondly, we also argue, by way of illustration, that spatial integration was consciously sought by the ruling élite. For many merchants and traders at the turn of the 19th century, spatial integration was considered to be a necessary condition for national economic growth. Given the individualistic basis of the framework of law, the state, through the judicial apparatus, used this framework to lay the foundations of an integrated national economy. Notice that this second argument is dependent upon the first, which concerns the pre-eminence of individual rights.

  Interpreting Law and Society

  The way in which law is defined holds the key for further discussions of state power and individualism. By the action of defining law, the problems of identifying its derivation from and within society are immediately confronted. In the simplest terms, the Oxford English Dictionary (1955, p. 1115) defined law as a “… body of rules, whether formally enacted or customary, which a state or community recognizes as binding on its members.” For a set of rules to be accorded the status of law, two essential conditions need to be met (Hart 1979). First, laws must be general and all encompassing, social rather than individual, so that they are not idiosyncratically interpreted and acted upon. Secondly, laws must be dependable to the extent that individuals expect others to act in accordance with or in reaction to the accepted body of rules. Of course, expectations of behavior are not quite the same as actual behavior, nor may everyone agree with the rules. In essence, law is a social expression of the rules and standards that bind individuals’ actions, obligations and intentions (Morawetz 1980).

  Given that laws are socially defined, how then are they derived? The intellectual history of law provides two basic answers. According to the traditional naturalistic doctrine, laws reflect innate moral and philosophical perceptions of the rights of man, as, for example, the notions of liberty and freedom derived, in part, from Rousseau and Hume (Unger 1975). The doctrine of naturalism distinguishes between natural rights and human will, arguing that natural law is beyond individual attempts at defining the correct (normative) course of human social action. Thus, naturalism assumes that law is neutral, in the sense of its distributive impact among individuals or groups in society, and that the arrangement of certain rights and assumptions in society is beyond the intervention of mere mortals. Unfortunately for those believing in the rule of natural rights, it has been virtually impossible to determine the origins of natural law in anything other than authoritarian or religious doctrines (David Kennedy 1980). Furthermore, any attempt allowing the judiciary alone to define what is, or what is not, natural law has been confounded by the values and ideology of those deciding litigation (see Ely 1980).

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  Business Law

  • Robert W. Emerson, Barron's Educational Series(Authors)
  • 2016(Publication Date)
  • Barrons Educational Services

    (Publisher)

  THE Law and Society

  1  

  ORIGIN AND NATURE OF LAW

  KEY TERMS

  law that which a judge will decide concerning matters properly brought before him/her; in a broader sense, any rule that society will enforce

  code in the common law, a collection of statutes enacted by legislative bodies, including Congress and state legislatures

  Civil Law codified law based on the Roman code of Justinian; the basis of the legal system of almost all European and Latin American countries as well as many African and Asian nations

  common law law as developed and pronounced by the courts in deciding cases (“case law”), based on the common law of England and judicial precedent

  THE ORIGIN OF LAW

  The origin of law is as obscure as the origin of society, since the existence of law is a precondition of society. In its most primitive, unreasoned form, law rests on brute power—the ability of one individual to control other individuals through strength. The lex talionis , the law of retaliation (an eye for an eye, a tooth for a tooth), arose from the natural impulse of individuals. As societies formed, this impulse was sanctioned by government as law. The law of damages is the substitution of monetary compensation for blood or retribution in kind.

  As time passed, however, it became necessary to adopt rules governing the conduct of individuals toward one another and the conduct of a single individual toward the body of individuals as a whole (society). Certain laws were enacted, or evolved and developed, for different purposes:

  1. To proscribe certain kinds of behavior that society finds objectionable. This is public law and concerns a citizen’s relationship with society constituted as government. Public law includes constitutional, administrative, and criminal law and many forms of antitrust law, environmental law, labor law, and securities regulation.

  2. To make an injured party (citizen, corporation, or other entity) whole. This is private law

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  Ideas and Intervention (RLE Social Theory)

  Social Theory for Practice

  • Joe Bailey(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  This is more than a shame. The law is a very obvious point of intersection for the major antinomies which sociologists have revealed as constituting the vital contradictions of all parts of our society. Not only is the law a paradigm example of the mutual reinforcement of power position and social knowledge (or if one prefers of social class and ideology), it is also, when considered as a theoretical object, a nexus of the contradictions between conflict and consensus assumptions of the social order, between individualism and collectivism, between determinism and voluntarism and between description and prescription. This is simply a clumsy way of suggesting that a consideration of law from the point of view of established social theorizing is at least as illuminating as the scrutiny of all other parts of our institutional structure, with the added importance that law has considerably more obvious and describable consequences than many other areas. All parts of society are opaque, and sometimes even invisible to sociologists to some degree, and the coincidence between the official ‘charter’ of an organization or institution and its actual practices and functions is often tenuous. There are many institutions which function as social control agencies in a hidden way (for instance social work), having a charter of ‘aid’ or even ‘therapy’. Law is an area where the overt charter and actual function appear to coincide in a relatively unusual way. That is, law is one of the few areas, perhaps the only area, where social control is openly acknowledged, practised and publicized. For this reason it is of great interest to sociologists.

  The strength with which law asserts its independence and neutrality not only from politics and historical pressures, but also from scrutiny, now makes it a priority for study. The claim of a form of knowledge and practice to autonomy from society is always viewed by all kinds of sociologists with scepticism. Whether it is science, medicine, religion or law sociologists are unwilling to allow these complexes of belief and action an a priori

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  Niklas Luhmann: Law, Justice, Society

  • Andreas Philippopoulos-Mihalopoulos(Author)
  • 2009(Publication Date)
  • Routledge

    (Publisher)

  Society’s law

  In society

  In this chapter, I would like to ‘locate’ the law in the broader context of society. Society is Luhmann’s playing field, in which all systems can be observed. As such, it constitutes an obvious way of expanding on the previous discussion on the way the law understands its external reference and indeed its self-description, which necessarily have to do with the broader societal environment. This will, however, prove not to be as straightforward as it may seem at the beginning. Luhmann’s understanding of society is both self-evident (considering systemic structures) and counter-intuitive, and entails a reiteration of systemic operations albeit from a different perspective. One of its most challenging aspects is that Luhmannian society contains its exclusions. In order to contextualise this in the present discussion, I read Luhmann’s thesis on society critically. I attempt to locate society’s barbarians, namely the included exclusion of society, in a way that will constitute a societal absence, very much along the lines of the preceding discussion on absence. This opens up the possibility of a description of the way the various systemic environments (as opposed to a more orthodox understanding of Luhmann that focuses on systems) ‘converge’ and become cross-fertilised without relinquishing either their specificity or indeed their unobservability. To this effect, I employ two examples: a discussion on constitution, which is widely understood as a coupling of law and politics; and a discussion on human rights, which is particularly interesting in view of the ambivalent position that Luhmann has maintained on the issue.

  Before that, however, a closer look into the role society has for Luhmann is needed. This will assist both an understanding of its prominence and its critical destabilising. For in the same vein that a self-description is a system’s necessary illusion (‘illusion’ in that it is never synthetic or operational; and ‘necessary’, because it replaces the search for identity without which the system could be perilously close to its unutterable paradox), society is Luhmann’s rather personal necessary illusion. Luhmann has professed time and again that he only does sociology. While his preferred discipline has traditionally ignored or actively concealed its relationship with the concept of society by focusing instead on empirically verifiable social ‘structures’ such as agency, action and causality,1 Luhmann radically reintroduces society in sociology. Thus, society is described as a suprasystem that includes all social systems. In this way, Luhmann attempts to rephrase the haunting sociological paradox of how sociology is, on the one hand, just another discipline, and on the other, an all-describing, all-embracing epistemic position. Society becomes the subject of sociology, at the same time transcending the division subject/object, and replacing it with the schema of observation. From being the subject-matter of sociology, society becomes an observer who can also be observed along with its operations, observations, boundaries and environment.2 Just as any observer, its expanse depends on the second-order observer and how the latter locates it in the broader schema of distinctions. At the same time, society has a slightly enlarged responsibility (at least vis-à-vis sociology and Luhmann himself): it bears the unity of the system within the system and arguably the unity of the theory within the theory. Luhmann professes that sociology needs a concept to express “the unity of the totality … of social relations, processes, actions, or communications”,3 thus confirming that society is both necessary and illusionary in the above sense.4

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  Between Facts and Norms

  Contributions to a Discourse Theory of Law and Democracy

  • Jürgen Habermas(Author)
  • 2015(Publication Date)
  • Polity

    (Publisher)

  Structurally constrained by the rational validity bases of modern law, this process fosters the democratic mode of legitimation anchored in civil society, the political public sphere, and modern citizenship. Parsons uses the term “societal community” to designate the core sphere from which each differentiated social system is supposed to have developed. This includes all the mechanisms of social integration: on the one hand, symbolic practices (such as rites, religious cults, and national ceremonies) that secure social solidarity and, on the other hand, second-order institutions like morality and law that regulate typical action conflicts and thus come to the rescue when the stability of institutionalized first-order expectations is in danger. Morality and law represent something like safety nets for the integrative performances of all other institutional orders. As early as tribal societies, this kind of self-referential normative structure developed with archaic legal practices, such as arbitration, oracles, and feuds. 49 Law is a legitimate order that has become reflexive with regard to the very process of institutionalization. As such, it forms the nucleus of a societal community that in turn is the central structure of society in general. Parsons pursues the social evolution of law in terms of its own function of securing social solidarity, and not, like Weber, in terms of its functional contribution to the formation and exercise of political power. In tribal societies law is still interwoven with other normative complexes and remains diffuse. A partially autonomous law develops only with the transition from tribal societies to “civilizations.” In this evolutionary step, a form of state organization develops in which law and political power enter into a remarkable synthesis

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  The Powers of Law

  A Comparative Analysis of Sociopolitical Legal Studies

  • Mauricio García-Villegas(Author)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  that most law professors who are interested in socio-legal studies do not believe that L&S has been sufficiently influential. Indeed, they deplore the influence of legal doctrine and legal technique on law students and the rather marginal character of social sciences in the teaching of law (Mertz, 2007, 2008; Sarat, 2004b; Sarat & Ewick, 2015; Tamanaha, 2001). Despite this, comparatively, law in the United States is much closer to the social sciences than it is elsewhere, especially in France and Latin America. L&S was initially created on the basis of four essential purposes 39 : (i) to study the way that law influences social reality (as opposed to studying the legal rules found in texts); (ii) to use the social sciences as a tool for capturing the reality of law; (iii) to adopt a progressive and reformist political conception intended to consolidate democratic, liberal, and egalitarian values; and (iv) to recognize the importance of the study of institutional processes, especially public policy, in order to arrive at the proposed political objectives of transformation. These four purposes evoked a return to realist ideas, particularly the idea of constructing a type of empirical legal research that would be critical and useful for public policy. 40 The central preoccupation of the movement was the empirical study of institutional processes. At its beginnings, this concern manifested itself in three thematic domains: justice, the legal profession, and socio-legal theory. With regard to the first of these domains, Marc Galanter’s (1974) text on justice and litigation in the United States is considered an icon of the movement. 41 As for the legal profession, a vast amount of publica- tions address issues such as the organization of lawyers and profes- sional practice (Abel, 1989; Carlin, 1962; Heinz & Laumann, 1982; (2000); Silbey (1997). See also Abel (1995a); Calavita (2010); Clark (2012a); Cotterrell (1992); Darian-Smith (2013, 2015); Friedman et al.

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