LAWS 1000-B th
Wednesday October 5 2011
The 'Law Of The Land' Confronts The 'Custom Of The Sea'
To eat or not to eat, to hang or not to hang?
Notes from September 28 (cont)
Hoebel: The Functions of Law
Law exists to order our lives & gives stability
Assumption: law essential to maintenance (“existence”) of soc.- must be min. Present
He says a society can't work without law.
In “primitive” societies (sic) these “law-jobs” are fulfilled to some degree (Hoebe; suggests
ours is the best)
Linked strongly to “consensus perspective”
Views all soc. through same lens (enthnocentric)
Law performs 4 functions in all societies; society is an organic whole that must be held together
1. The definition of relationships- so we know what we can expect (defining relationships)
2. The allocation of authority and the right to exercise physical coercion as a socially recognized
privilege (allocation of authority)
3. The disposition of trouble cases as they arise – what judges do (dealing with trouble cases)
4. To adapts to changes in social life and redefine relationships accordingly – the ability to evolve
(adaptation- modify laws)
Every society has to accomplish these functions in some way
Difference between custom and convention and law based on different type of authority
Custom and conventions may provide pressure but the law “has teeth” and conventions may not
Law must be relatively flexible (How much?)
Power is “transpersonalized”*** (power it put somewhere else, transferred)
Stability, predictability vs. Flexibility, change
Universal vs. Personal
Max Weber and Authority
Weber: 3 Types of Authority
Authority is legitimate domination:
1. Traditional/ Customary
1. Tribal Chief, Council of Elders, Monarchy, “irrational”
1. Personality of Leader, relatively unstable, i.e. Reil, Hitler
1. System of “offices”, expertise and bureaucracy, predictable rules, stability
These are only “Ideal Types” as so actual existing authority some combination of all of these The Cheyenne Way
Reveals Hoebel’s functions in the different context
Case of Wolf-lies-down. We can see the 4 functions in the story:
1. Definition of relations- if you want to borrow you have to leave something as
I) security and II) identification of borrower
2. Authority has been placed in the Elk Elders to give guidance and resolve disputes.Also has
authority to get the property back. So they fulfill function of police and judiciary.
3. Disposition of trouble cases is with the borrower and Wolf-lies-down. Here restitution is the
indicator of success. The parties to the dispute are ultimately the mediators of their own dispute.
4. Anew rule or policy is made so that in the future property will not be borrowed without asking
to avoid uncertainty and future conflict.
Conflict as Property
Conflict is valuable in society- we have lost sight of their value
Christie suggests we don’t have enough conflict in our society;
(proactive) criminologists have been too successful
• Conflicts are reduced or disappear
• Become the “property” of others
Conflict can kill, but too little can paralyze
Reasons conflicts get “stolen”
Courts and the mundane processes of law are tedious and uninteresting
Courts are not accessible (distanced)
Professionalization of conflict reduction and resolution
Courts peripheral to social life in 4 major ways
1. distanced by the physical location of the courts from people (downtown)
2. distanced by architectural complexity
3. distanced by the involvement of professionals (lawyers, social workers, etc.)
1. real people have no real ability to be involved in the caseparticularly victims of crime)
4. distance is worsened by the presence of the state and lawyers
1. Criminal cases-> the ultimate victim is the state-> “idea of the King’s Peace”. The state
represents the victim such that the victim likely may never “present their side of the story”
3. monopoly of legal knowledge to protect influence
Thieves: Lawyers and Criminologists?
Lawyers monopolize disputes
Conflicts become the property of lawyers
Result is disputants (regular “lay” people) lose control over the resolution of their own disputes
and are removed from the process.
Criminology aims to explain or “define conflict away”
Image of “healthy” relations (non-conflict)
From biology (determinism) to economics (Marx): depersonalization is the common result “reduced the victim to a non-entity and the offender to a thing” (pg. 9).
What is law’s role or function according to each “perspective” we discussed last week?
When we talk about law as “functional” as Hoebel does what are the assumptions behind this
claim? i.e. what type of vision of the world does this support or sponsor?
Are there any advantages to thinking of conflicts as property as Christie does?Are there any
dangers in this?
Notes from October 5 (start)
Durkheim: Morality and Law
Society is a “moral phenomenon”
Individuals influenced by moral context
Ideally society founded on set of shared values --> maintain social solidarity
Shift from “mechanical solidarity” (pre-mod) to “organic solidarity” (mod)
Shift from religion to new social institutions to maintain social solidarity
- weakening of “common morality”
Shift from law as ‘repressive law’(crim) to ‘restitutive law’(civ)
How is morality different from law?
Morality concerned with only right and wrong (absolutes). Modern law = framework to
peacefully solve conflicts (Negotiation- Cotterrell)
Morality often ‘vague’→ Law has to be ‘specific’
Modern moral thought understands morality as ‘relative’, dependant on the subjective views of
Morality is uncertain
Law claims to be knowable & ‘objective’-- “predictable and calculable”.
Legal disputes have answers – they are authoritatively decided by judges, moral disputes go
Consequences of breaking a moral rule are different than for breaking a legal rule (Shame
Law is relatively ‘fixed’through institutions where morality has become largely ‘detached’
from institutions (Org. Religion)
Law is therefore more stable or ‘rigid’and morality more ‘flexibl