Law and Society - Ch. 4
Order by
25 terms
Terms | Definitions |
|---|---|
 Rationalistic Model | proposes that laws are created as rational means of protecting the members of society from social harm. In this perspective, crimes are considered socially injurious. Most widely accepted and popular but also the most unsophisticated theory of lawmaking. |
| Functionalist View | Formulated by Paul Bohannan, is concerned mainly with how law emerges. Bohannan argues that laws are a special kind of "re institutionalized custom". This view suggests that failure in other institutional norms encourages the re institutionalized of the norms by the legal institution. Implies a consensual model of lawmaking. |
| Conflict Perspective | cites value dissensus, unequal access to economic goods, and the resulting structural cleavages of a society as the basic determinant of laws. Specifically the origin of law is traced to the emergence of an elite class. These elites, it is suggested, use social control mechanisms such as laws to perpetuate their own advantageous positions in society. |
| Moral Entrepreneur | Attributes the precipitation of key events to the "presence of an enterprising individual or group. Their activities can properly be called moral enterprise, for what they are enterprising about is the creation of a new fragment of the moral constitution of society, its code of right and wrong." |
| legislation | the deliberate creation of legal precepts by a body of government that gives articulate expression to such legal precepts in a formalized legal document. |
| Judge-made laws | stems from the decision of actual controversies, it provides no rules in advance for the decision of cases but waits to be brought before the court for decision. |
| Probability of legislative response | 1) powerful interest groups mobilize their members to seek legislative action 2) the unorganized public becomes intensely concerned with an issue, as in the controversy over thalidomide or conversely is indifferent to the particular measures advocated by an interest group 3) there is no pressure to maintain the status quo or opposition to the proposal legislation |
| Pre lawmaking stages | 1) instigation and publicizing of a particular issue 2) information-gathering 3) formulation or devising and advocating a specific legislative remedy for the problem 4) mobilization, the exertion of pressures, persuasion, or control on behalf of a measure by one who is able, often by virtue of his or her institutional position 5) modification, the marginal alteration of a proposal |
| Administrative Lawmaking | lawmaking through rulemaking and through the adjunction of cases and controversies arising under their jurisdiction. |
| Administrative rulemaking | a rule is a law made by an administrative agency. |
| Administrative Adjudication | the process by which an administrative agency issues an order |
| Imperial Judiciary | the courts now have so much power, play such a great role in lawmaking, that they pose a threat to the vitality of the political system - rather controversial position in academic circles which is not without criticism. |
| Romantic Judges | who follow their passions of do gooding and use due process and equal protection to justify making law rather than interpreting it. These judges are bold, creative, compassionate and result-oriented who do not let tradition, precedent, or nonromantic readings of the Constitution get in the way. |
| stare decisis | stand by what has been decided |
| interpreting statutes | judges determine the effects of legislative decisions. |
| interest group thesis | contends that laws are created because of the special interests of certain groups in the population |
| interest groups - judges | a lawyer must be hired, formal proceedings must be followed and grievances must be expressed in legal terminology. |
| interest groups - legislatures | a group must be economically powerful or able to mobilize a large number of voters. |
| interest groups - courts | bring conflicts to a courts attention by initiating test cases to bring added information to the courts through amicus curiae (friend of the court) and by placing favorable information in legal and general periodicals. |
| Public Opinion - that affects law | 1) some people but only some take enough interest in any particular commodity to make their weight felt 2) there are some people who have more power and wealth than others (some people more equal than others) |
| Direct Influence | constituent pressures that offer rewards or sanctions to lawmakers. |
| Organized Interest Groups | interest groups press regulatory agencies for rules and regulations that are in keeping with their own immediate interests. |
| Indirect Influence | lawmakers act in the capacity of an "instructed delegate" the decisions made are on behalf of the desires of a particular constituency. |
| Social Scientists Criticized - lawmaking | 1) social science is basically concerned with the prediciton of future events whereas law is to order the 2) social science is rarely dispassionate and social scientists are frequently caught up in the politics which their work necessarily involves |
| Impetus for Law | demands for new laws or changes in existing ones come from a variety of sources. it is a fundamental prerequisite for setting the mechanism of law making in motion. |
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