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LWSO 201 Chapter Notes -Henry James Sumner Maine, Rhetorical Criticism, Critical Race Theory

Law and Society
Course Code
LWSO 201
Marywyatt Sindlinger

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Law and Society 201 Text Review
Chapter One
A complex and voluminous set of laws governs our entire existence
(registration at birth, speed limits, school attendance, what we buy, the
conduct of professors in a classroom, define boundaries of public and private
property, defining power relationships, maintain status quo, preserve order)
Not all societies utilize a formal legal system (judges, courts, lawyers,
80% of people in poor countries can not identify who owns what, addresses
can not be verified, and rules that govern property can vary from street to
Traditional societies rely on customs and tradition and resolve disputes
through conciliation or mediation by the village elders
Traditional societies need very little law, because social relations are direct
and intimate and everyone shares the same interests (few things to argue
about) so non legal/informal mechanisms of social control are more
The more civilized a man becomes, the greater the man’s need for law and
the more law he creates
Law is a response to social needs
Oliver Wendell Holmes every legal system stands in close relationship to the
ideas and aims of society. It reflects the ideas, ideals and ideologies that are a
part of a distinct “legal culture” those attributes and behavior that make the
law of one society different form another
Sociology and law are both concerned with norms rules that prescribe
the appropriate behavior for people in a given situation
In both law and sociology, the study of conflict and conflict resolution is
central, as well as the nature of legitimate authority, social control, human
rights, power arrangements and the relationship between public and private
spheres and contractual commitments
Sociological Jurisprudence the study of law and legal philosophy, and
the use of its ideas in law to regulate conduct (considers law as it
actually is “law in action” not like the law that appears in books)
Interest in law grew after WWII
Interest in the law isn’t confined to North America nationally and
internationally institutions formed centers to study the interactions between
law and society
There are many difficulties of interaction between sociologists and lawyers
because: 1 they don’t talk in the same language (lawyers “the
linguistically challenged procession”), 2 – lawyers need to make decisions on
the spot, where sociologists is willing to suspend final judgment on some
issues, 3 differences in professional cultures (lawyers are concerned with

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resolution and identification of problems and sociologists consider all
evidence and approach problems with an open mind towards all sides)
The pronouncements of law are predominantly prescriptive: they tell people
how to act and what will happen to them if they fail to act a certain way
In sociology the emphasis is on description: understanding the reasons why
certain groups of people act a certain way in situations
Legal thinking, as Vilhelm Aubert explains is different than scientific thinking
because: 1 law is more inclined towards the particular than the general, 2
law does not establish dramatic connections b/w means and ends, 3 truth
is not nonprobabilistic (something either happened or it didn’t) ; a law is
either valid or not valid, 4 law is past and present oriented and not
concerned with future events, 5 legal consequences valid even if they do
not occur, 6 a legal decision is an all or nothing process with little room for
compromise(either win or lose a case)
The lawyer generally sees the law as an instrument to be wielded
Conceptualizations of Law
Many diverse definitions of law
Jr. 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
Oliver Wendell Holmes declares that the prophesies of what courts will do in
fact , and nothing more pretentious are what I mean by law” (For Holmes –
judges make the law on the basis of past experience)
In both of above the courts play a very important role pragmatic/practical
(non theory based) approaches to law
Max Weber an order will be called law if it is externally guaranteed by the
probability that coercion, to bring about conformity or avenge violation, will
be applied by a staff of people holding themselves specially ready for that
Weber law is different than customs (rules of conduct in defined situations
no sense of duty or obligation to follow them) and conventions (rules for
conduct and they involve a sense of duty) because of three basic features
(outside pressure to comply, always involves coercion, carried out by specific
Weber claims a conventional order lacks specialized personnel for the
instrumentation of coercive power
Philip Selznik authoritative nature of legal rules brings about a special kind
of obligation that is not dependent on threat and coercion/force (many laws
are simply obeyed because people feel it’s their duty to obey)
Donald Black law is governmental social control; 4 styles of social control:
1 penal style of social control: the deviant is viewed as a violator and
an offender subjected to punishment (drug pusher)

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2 compensatory style a person is considered to have a contractual
obligation and therefore owes the victim restitution (debtor failing to
pay the creditor)
3 therapeutic style the deviant’s conduct is abnormal and the person
needs help
4 conciliatory style social conflict without consideration for who is
right or wrong (marital disputes)
Law is to be employed when other forms of social control fail to operate
Types of law
Substantive laws rights, duties and prohibitions administered by
Procedural laws rules concerning how substantive laws are
administered, enforced and changed (presenting evidence in court,
drawing up a will)
Public law duties and powers of government acting as government
Private law governing relationships between individuals (wills,
Civil law governs the conduct of individuals (torts violations of civil
Criminal law concerned with the definition of crime and prosecution
of offenders; a crime against the state public;
Law in Canada divided into branches:
Constitutional law branch of public law; determines the political
organization of the state and its powers; The Constitution the
supreme law of Canada
Case law enacted by judges
Statutory law legislation passed by elected officials in legislative
Administrative law created by administrative agencies in the form of
regulations, orders, and decisions
Royal prerogative or prerogative powers residue of discretionary
authority that is legally left in the hand of the crown
Major legal systems
Romano Germanic System civil law (Europe)
Code: book of laws
Common law system judge made law (England)
Socialist Legal System law must provide for national security, distribute
goods on the basis of socialist principles, education to overcome selfish and
antisocial tendencies that were brought about by a heritage of centuries of
poor economic organization (Soviet Union)
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