Sociology 216 Law and Society 20130917
Conceptualizations of Law
• Cardozo defines law as “a principle or rule of conduct so established as to justify a prediction with
reasonable certainty that it will be enforced by the courts if its authority is challenged.
• Max Weber was one of the most influential characters on the topic of conceptualizations of law; “an
order will be called law if it is externally guaranteed by the probability that coercion (physical or
psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding
themselves specially ready for that purpose.”
• Weber’s two features are: Customs: are rules of conduct in defined situations that are
relatively long duration and are generally observed without deliberation and “without thinking.”
Conventions: are rules for conduct and they involve a sense of duty and obligation.
• Four styles of social control are represented in law: penal, compensatory, therapeutic, and conciliatory.
o Penal style of social control: the deviant is viewed as a violator of a prohibition and an
offender to be subjected to condemnation and punishment. I.e. a drug pusher
o Compensatory style: a person is considered to have a contractual obligation and,
therefore, owes the victim restitution. I.e. a debtor failing to pay the creditor.
o Therapeutic style: the deviant’s conduct is defined as abnormal; the person needs help,
such as treatment by a psychiatrist.
o Conciliatory style: deviant behaviour represents one side of a social conflict in need of
resolution without consideration as to who is right or who is wrong. I.e. martial dispute.
Types of Law
Substantive laws: consists of rights, duties, and prohibitions administered by courts – which
behaviours are allowed and which are prohibited.
Procedural laws: rules concerning just how substantive laws are to be administered, enforced,
changed, and used by players in the legal system.
Public law: concerned with the structure of government, the duties and powers of officials, and the
relationship between individual and the state.
Includes constitutional law, administrative law, regulation of public utilities and political subdivisions.
Private law: concerned with both substantive and procedural rules government relationships between
individuals (the law of torts or private injuries, contracts, property, wills, inheritance, marriage, divorce,
adoption, and the like).
Civil law: consists of a body of rules and procedures intended to govern the conduct of individuals in
their relationships with others. Violations of civil statues, called torts, are private wrongs that can be
Criminal law: concerned with the definition of crime and the prosecution and penal treatment of
offenders. Civil law is basically codified and common law is case law.
Law is more divided in Canada, as the branches include constitutional law, case law, statutory law,
administrative law, and royal prerogative.
The constitution is the “supreme law of Canada”
Case law: is enacted by judges in cases that are decided in the appellate courts.
Statutory law: is legislated law –legislation passed by elected officials in legislative assemblies.
Administrative law: a body of law created by administrative agencies in the form of regulations,
orders, and decisions.
Royal prerogative or prerogative powers: the residue of discretionary authority that is legally
left in the hands of the Crown, are another source of law.
Major Legal Systems
Romano Germanic System: also known as civil law refers to legal science that has developed on
the basis of civil law. Most European countries have national codes based on a blend of customary and
Roman law that makes the resulting systems of members of the RomanoGermanic legal tradition.
Common Law System: The law of England, as well as those laws modelled on English law such as
laws of Canada, USA, Ireland and India, they resisted codification. It is basically case law enacted from
Socialist Legal System: Three objectives: Law must provide national security, law has the economic
task of developing production and distribution of goods on the basis of socialist principles so that everyone
will be provided for according to their needs, law must provide education: to overcome selfish and antisocial
tendencies that were brought about by a heritage of centuries of poor economic organization. Communist
law basically, their objective is to apply law not create it, they reject idea of separation of powers. Two
version of law: collective and state. Russia’s legal system is one of the most corrupt in the world.
Islamic Legal System: Islamic law is derived from four different sources, which include the Koran,
Sunna (saying, acts, and allowances of the Prophet as recorded by reliable sources in the Tradition
(Hadith), Judicial consensus; like precedent in common law, and Analogical reasoning.
Functions of Law
Social Control: In a small traditional, and homogenous society, behavioural conformity is ensured by
the fact that socializing experiences are very much the same for all members. Formal social control is
characterized by “(1) explicit rules of conduct, planned use of sanctions to support the rules, and (3)
designated officials to interpret and enforce the rules, and often to make them.
Dispute Settlement: By settling disputes through authoritative allocation of legal rights and
obligations, the law provides an alternative to other methods of dispute resolution. Social Change: Law is often used as a method of social change, or a way of bringing about planned
social change by government.
Dysfunctions of Law
Dysfunctions stem in part from the law’s conservative tendencies, the rigidity inherent in its formal structure,
the restrictive aspects connected with its control functions, and the fact that certain kinds of discriminations
are inherent in law itself such as norms.
The Paradigm of Society: Consensus and Conflict Perspective
Consensus perspective considers law as a neutral framework for maintaining societal integration.
Proponents of the consensus perspective further maintain that law exists to maintain order and stability.
Conflict Perspective: considers law as an instrument of oppression “employed by the ruling classes for their
own benefit.” Week 2: Theoretical Perspective and Methodologies 20130917
Social is the starting point
2. Ritual based order
3. Composite of all consciousness collective conscience
4. Life of its own
5. Not in one place but diffused
6. But has specific characteristics
He is known as the father of sociology
• Smaller, early societies
• Strong, homogenous and repressive collective conscience
o Penal Sanctions
o Punishment for transgressing
• Labour divided into more specialized tasks
• Collective conscience diversifies Week 2: Theoretical Perspective and Methodologies 20130917
• Less tangible concepts
• More heterogeneity
• More interaction with strangers
Yet stronger bonds
o Functional interdependence.
Law to Durkheim
• It is a social fact: something that can be studied, discovery and used to discover other facts.
• Embodies the morality and norms of a society.
• MORE SLIDESSS
Chapter 2: Theoretical Perspectives
• Traditional Legal Systems: are typically huntergather and simple agrarian societies. Laws are not
written or codified; they are permeated by customs, traditions, religious, dogmas, and values.
o Substantive laws: consists of rights, duties, and prohibitions are concerning what is right,
wrong, permissible, and impermissible.
o Procedural laws: are rules regarding just how substantive law is to be administered,
enforced, changed, and used in mediation of disputes.
o By codifying, preserving, and enforcing certain key kinship rules (usually descent and
authority), religious rituals, and the chief’s right to enact laws, differences in power and
privilege are preserved and made to seem appropriate, enacted by common law. The chief is
the judge and everyone must abide by those rules.
• Transitional Legal Systems: consists of advanced agrarian and early industrial societies where
the economic, educational, and political subsystems are increasingly differentiated from kinship
o Public law: concerned with the structure of government, the duties and powers of officials,
and the relationships between the individual and the state.
o Private law: regulates relations amoung nonpolitical units.
o Criminal law: denotes wrongs against the state, the community, and the public.
o Torts: are laws pertaining to private wrongs of parties against each other rather than against
the state or the public. Week 2: Theoretical Perspective and Methodologies 20130917
o There were five distinct types of statuses: judge, representative or lawyer, litigant, court
officials, and administrators and jurors; it was also enacted as a common law system.
• Modern Legal Systems: Laws in modern legal systems are extensive networks of local and
national statues, private and public codes, crime and torts, common and civil laws, and procedural and
o A distinctive feature is the proliferation of public and procedural law is referred to as
administrative law. The system is under a statutory law.
Sources of malintegration, clerks to prosecutors become bureaucratized, there are
clear appeal procedures, issues not resolved in lower court can be fought for in higher
Modern laws apply the same rules to everyone; it is also transactional, universalistic,
uniform, rational, predictable, amenable, political, separate and distinct, operations on
a basis of written rules and has a regular chain of command.
The European Pioneers
• Natural law: constitutes the basis for this exposition of law having a universal validity and is based
on reason that is free from all passion.
• Legal positivism: considered to be the legal and the moral to constitute two quite separate realms.
• Baron de Montesquieu: He considered law an integral to a particular people’s culture. His central
thesis was laws are the result of a number of factors in society, such as customs, physical environment,
and antecedents, and that laws can be understood only in the context of that particular society. His
theory states that a constitution consists of 3 legal powers: legislative, executive, and judicial.
• Herbert Spencer: He provided theory of unregulated competition in the economic sphere. He drew
the picture of the evolution of civilization and law in which natural selection and survival of the fittest are
primary determining factors. Evolution consists of growing differentiation, individuation, and increasing
division of labour. 2 main stages in development of civilizations: a primitive and military form of society,
with war, compulsion, status as regulatory mechanisms; and a industrial form with peace, freedom, and
contract as the controlling devices. Governments must be confined to protect personal safety, and he
opposed public programs designed to alleviate weaker groups of society. He favoured mutual
agreements not set up by governmentlegal norms. Also, he believed in maximum freedom of individual
action; no supervision needed for society. Week 2: Theoretical Perspective and Methodologies 20130917
• Sir Henry Sumner Maine: Status is a fixed condition in which an individual is without will and
without opportunity. With the progress of civilization, this condition gradually gives way to a social
system based on contract. He argued that a progressive civilization is manifested by the emergence of
the independent, free, and selfdetermining individual, based on achieved status, as the primary unit of
social life. He emphasized individual achievement and voluntary contractual relations that set the
conditions for a more legal system that brought society and law in harmony. His argument is legal
relations are not conditioned by ones birth but are dependent on voluntary agreements.
Classical Sociological Theorists
• Karl Marx: He suggested that every society rests on economic foundation. “Mode of production” of
commodities, has 2 elements, which are the physical or technological arrangement of economic
activity, and “the social relations of production,” or the indispensable human attachments that people
must form with another when engaged in economic activity. Marx’s theory of law: (1) Law is a product
of evolving economic forces; (2) law is a tool used by a ruling class to maintain its power over the lower
classes; and (3) in the communist society of the future, law as an instrument of social control will
“wither away” and finally disappear. Dialectical materialism: the idea that law is a reflection of
economic conditions is integral to the doctrine; also this doctrine suggest the political, social, religious,
and cultural order of any given epoch is determined by the existing system of production and forms a
superstructure on top of this economic basis. Law is nothing more than a function of the economy.
Story of bourgeoisies and proletariat, it is a class of rule and dominance.
• Max Weber: He thinks legal systems are irrational or rational. Rational procedures: involve
the use of logic and scientific methods to attain specific objectives. Irrational procedures: rely on
ethical or mystical considerations such as magic or faith in the supernatural.
1. Substantive irrationality: Case decided by some unique religious, ethical, emotional, or political
basis instead of by general rules. Ex. religious judge makes decision no rationale.
2. Formal irrationality: No one tries to understand or clarify why it works and formal because strict
adherence to the procedures required. Ex. 10 Commandments.
3. Substantive rationality: based on application of rules from nonlegal sources such as religion,
ideology, and science. Ex. makes decision based on the Koran.
4. Formal rationality: this involves use of consistence, logical rules independent of moral,
religious, or other normative criteria that are applied equally to all. Ex. Western/Canadian Law.
He identifies three types of administration of justice:
Kadhi justice: dispensed by the judge of the Islamic Shari’a court, based on religious precepts, heart of
Pakistan and Iran.
Empirical Justice: the deciding of cases by referring to analogies and by relying on and interpreting
precedent but short of rationality. Week 2: Theoretical Perspective and Methodologies 20130917
Rational justice: based on bureaucratic principles and it is universalistic, looks toward contract, not
towards status. Weber pointed out that the acceptance of the law as a rational science is based on certain
fundamental and semilogical postulates, such as that the law is a “gapless” system of legal principles, and
that every concrete judicial decision involves the application of an abstract legal proposition to a concrete
Emilie Durkheim: outlined his thesis on law in society on The Division of Labour.
Mechanic solidarity: prevails in relatively simple homogeneous societies where unity is ensured by
close interpersonal ties and similarity of habits, ideas, and attitudes.
Organic solidarity: characteristics of modern societies that are heterogonous and differentiated by a
complex division of labour.
There are two types of law, which are repressive and restitutive. Mechanical solidarity is associated with
repressive and penal law. Repressive law tends to give away to restitutive law with an emphasis
We should not say than an act offends the common consciousness because it is criminal, but that it is
criminal because it offends the collective consciousness.
• Albert Venn Dicey: brought about the famous doctrine of the rule of law, it has three aspects:
First no one is punishable except for a distinct breach of law, and therefore the rule of law is not
consistent with arbitrary or even wide discretionary authority on the part of the gov’t/ Second, it means
total subjection of all classes to the law of the land, as administered by the law courts. Third, individual
rights derive from court precedents rather than from constitutional codes.
• Oliver Wendell Holmes, Jr.: founder of legal realism, the basic contention of legal realists is
that “judges make law rather than find it”.
o In his book, “The Path of the Law,” Holmes outlined some of his basic propositions and stated
that a “legal duty so called is nothing but a prediction that if a man does or omits certain things
he will be made to suffer in this or that way by judgement of a court.
• E. Adamson Hoebel: he noted: damages have generally replaced death as penalties in civil suits.
He maintained that this is how law developed in human societies through the ages, but the law of
particular societies have not followed a single line of development through fixed, predetermined, and
Contemporary Law and Society Theorists Week 2: Theoretical Perspective and Methodologies 20130917
• Donald Black: He explains variations in law from a crossnational perspective, as well as amoung
individuals within societies. He considered law as gov’t social control through litigation, legislation, and
adjudication. He develops 5 measurable variables of social life: stratification, morphology, culture,
organization, and social control. Stratification: inequality of wealth. Morphology: refers to those
aspects of social life that can be measured by social differentiation or the degree of interdependence.
Culture: can be used to measure volume, complexity, and diversity of ideas, and by the degree of
conformity to the mainstream of culture. Organization: can be measured by the degree to which the
administration of collective action in political and economic. Finally the amount of nonlegal social
control to which people are subjected is a measure of their respectability, and differences between
people indicate normative differences from each other.
• Roberto Mangabeira Unger: believes that from an evolutionary perspective, different types of law
turn out to be stages, for they build upon one another—regulatory law upon customary law, the
autonomous legal order upon regulatory law.
Current Intellectual Movements in Law
Consensus perspective: is grounded in the functionalist approach.
Conflict perspective: is grounded in the conflict and Marxist approaches to the study of law in
The Functionalist Approach: was brought into sociology by borrowing directly from, and developing
analogies for, concepts in the biological sciences.
Manifest functions: are those built into a social system by design, well understood by group
members. Latent functions: are by contrast, unintentional and often unrecognized; they are
unanticipated consequences of a system that has been set up to achieve other ends.
The basic tents of functionalism is summarized by:
1. Societies must be analyzed “holistically as systems of interrelated parts.”
2. Causeandeffect relations are “multiple and reciprocal.”
3. Social systems are in a state of “dynamic equilibrium,” such as the adjustment to forces affecting the
system is made with minimal change within the system.
4. Perfect integration is never attained, so that every social system has strains and deviations, but the
latter tend to be neutralized through institutionalization.
5. Change is fundamentally slow adaptive process, rather than a rev