Law and Society
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68 terms
Terms | Definitions |
|---|---|
 Karl Marx | 1. Law is a product of evolving economic force. 2. Law is a tool used by a ruling class to maintain its' power over the lower class. 3. In the communist society of the future, law as an instrument of social control will "wither away" & finally disappear. |
| Sir Henry Sumner Maine | Argues that: 1. Law and legal institutions must be studied historically if they are to be understood. 2. In modern societies, legal relations are not conditioned by one's birth but depend on voluntary agreements. |
| Sumner Maine's quoted dictum | "the movement of the progressive societies has hitherto been a movement from Status to Contract." |
| Primitive legal system | not written or codified. permeated by customs, traditions and religious dogmas. |
| Transitional legal system | basic legal elements - laws, courts, enforcement agencies & legislative structures. |
| Modern legal system | more extensive networks of local and national statutes. more bureaucracy. |
| Branches of Law | 1. Constitutional 2. Case 3. Statutory 4. Executive 5. Administrative |
| Constitutional Law | A branch of public law, determines the political organization of the State, and its' power while also setting certain substantive and procedural limitations on the exercise of governing power. |
| Case Law | Is enacted by judges in cases that are decided by appellate courts. |
| Statutory Law | Is legislated by law, law made by legislature. |
| Executive | These orders are regulations issued by the executive branch of the government at Federal and State levels. |
| Administrative | A body of law created by administrative agencies in the form of regulations, orders and decisions. |
| Types of Solidarity | 1. Mechanical 2. Organic |
| Mechanical solidarity | Prevails in relatively simple and homogeneous societies where unity is ensured by close interpersonal ties and similarities of habits, ideas and attitudes, repressive and penal law. |
| Organic solidarity | Characteristic of modern societies that are homogeneous and differentiation by a complex division of labor; restitutive and modern law. |
| Sociolegal Theorists | 1. Dicey 2. Holmes 3. Hoebel |
| Holmes | 1. Supreme Court judge. 2. Helped found school of legal realism. 3. Connected to Darwinism (historically) 4. Path of Law |
| Path of Law | "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 judgment of a court" |
| 1st Rule of Law (Dicey) | No one is punishable except for a distant breach of the law and therefore, the rule of law is not consistent with arbitrary or even wide discretionary authority on the part of the government. |
| 2nd Rule of Law (Dicey) | The rule of law means total subjection of all classes to the law of the land, as administered by the law of the land. |
| 3rd Rule of Law (Dicey) | Individuals rights derive from court precedents rather than from constitutional codes. |
| Conceptions of Society | 1. Consensus 2. Conflict |
| Conflict | considers society as consisting of individuals and groups characterized by conflict and dissension and held together by coercion (EX: a dictatorship) |
| Consensus | stresses the cohesion, solidarity, integration, cooperation and stability of society, which is seen as united by a shared culture and by agreement on its fundamental norms and values (EX: the military) |
| Styles of Social Control | 1. Penal 2. Compensatory 3. Therapeutic 4. Conciliatory |
| Penal (Black) | The deviant is viewed as a violator of a prohibition & an offender is to be subjected to condemnation & punishment (EX: drug pusher) |
| Compensatory (Black) | A person is considered to have a contractual obligation & therefore, owes the victim restitution (EX: student loans) |
| Therapeutic (Black) | Deviant conduct is defined as abnormal. Needs professional help. (EX: drug addict) |
| Conciliatory (Black) | Deviant behavior represents one side of a social conflict in need of resolution without consideration as to who is right or wrong. (EX: divorce) |
| Donald Black | Believed that: 1. Law is essentially governmental social control. 2. There are 4 styles of social control. (PCTC) 3. Developed SMOC(SC) to explain the quantity, direction and style of law in regards to social life. |
| Stratification (Black) | (Inequality of wealth) Differences in wealth and rates of social mobility. |
| Morphology (Black) | Degree to which administration of collective action in political and economic spheres is centralized. |
| Culture (Black) | Volume, complexity & diversity of ideas and by the degree of conformity to the mainstream of culture. |
| Social Control (Black) | The measure people's respectability & differences between people indicate normative distance from each other. |
| Types of Law | 1. Substantive 2. Procedural 3. Public 4. Private 5. Civil 6. Criminal 7. Torts 8. Civil Law 9. Common Law |
| Criminal Law | Concerned with the definition of crime and prosecution and penal treatment of offenders. |
| Substantive Law | Consists of rights, duties and prohibitions administered by courts which behaviors are to be allowed and which are prohibited (EX: sale of narcotics) |
| Civil Law | Consists of a body of rules and procedures intended to govern the conduct of individuals in their relationships between individuals. |
| Public Law | Concerned with the structure of government, the duties and powers of officials and the relationship between the individual and the State. |
| Private Law | Concerned with both substantive and procedural rules governing relationships between individuals. |
| Procedural Law | Rules concerning just how substantive laws are to be administered, enforced, changed and used by players in the legal system. (EX: filing charges, selecting a jury, presenting evidence in court or drawing up a Will) |
| Common Law | Resists codification, is not based on acts of parliament but on case law, which relies on precedents set by judges to decide a case. |
| Torts | Violations of civil statutes, private wrongs for which the injured individual may seek redress in the courts for the harm he/she experienced. |
| Analogical Reasoning | Used in circumstances not provided for in the crime of sodomy, contending that sodomy is similar to the crimes of adultery, out-of-wedlock sex and drinking alcohol and thus should be punished by the same penalty the Koran indicates for adultery |
| Codes | Simply a body of laws. |
| Islam | submission or surrender and implies that individuals should submit to the will of God. |
| Judicial Consensus | it is based on historical consensus of qualified legal scholars and it limits the discretion of the individual judge. |
| Kolkhoz | a collective farm, which is based on nationalized land. |
| Koran | the word of God as given to the prophet Muhammad. |
| Mifiya | ubiquitous internationally and nationally |
| Shari'a | the way to follow, which specifies the rules believers based on divine command and revelation. (Muslims) |
| Sunna | the sayings, acts and allowances of the prophet Muhammad as recorded by reliable sources in Tradition (Hadith) |
| Rational (Weber) | involved the use of logic and scientific methods to attain specific objects |
| Irrational (Weber) | rely on ethical/mythical considerations, such as magic and faith in the supernatural. |
| Formal (Weber) | refers to making decisions on the basis of established rules, regardless of the notion of fairness. |
| Substantive (Weber) | takes the circumstances of individual cases into consideration along with the prevailing notion of justice. |
| Importance of rationalization (Weber) | refers to making decisions on the basis of established rules, regardless of the notion of fairness. |
| Black's definition of law | the normative life of a state and its citizens, such as legislation, litigation and adjudication. |
| Paramount function of law | to regulate and constrain the behavior of individuals in their relationships with one another. |
| How law can be distinguished from other forms of social control | in that it is a formal system embodying explicit rules of conduct, the planned use of sanctions to ensure compliance with the rules, and a group of authorized officials designated to interpret the rules and apply sanctions to violators. |
| Max Weber's definition of law | and 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 especially ready for that purpose. |
| Sociology of Law is concerned with: | 1. Values 2. Social and Interaction dynamics and 3. Cultural ideologies that underlie and shape the structural arrangements in society. |
| Sociological Jurisprudence | The study of law and legal philosophy, the use of its ideas in law to regulate conduct. It is also based on comparative study of legal systems, legal doctrines and legal institutions as social phenomena and considers legal as it actually is the "law in action" as distinguished from the law as it appears in books. |
| Dahrendorf believed | there are two equally valid aspects of every imaginable society. (stability/change - integration/conflict - function/dysfunction) |
| Quinney believed | that law is an expression of interests, an outgrowth of the inherent conflict of interests characteristic of society. |
| Pound saw law as: | a heterogeneous and pluralistic society, such as the US, is best understood as an effort at social compromise with an emphasis on social order and harmony. |
| Law emerges when | the structure of a given society become so complex that regulatory mechanisms and methods of dispute settlement can no longer be dependent on informal customs and social, religious or moral sanctions. |
| Natural Law | based on the assumption that the nature of human beings can be known through reason, and that this knowledge can provide the basis for the social and legal ordering of human existence. |
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