LAW, JUSTICE,
AND SOCIETY
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LAW, JUSTICE,
AND SOCIETY
A SOCIOLEGAL INTRODUCTION
Fourth Edition
Anthony Walsh
Boise State University
Craig Hemmens
Washington State University
New York
Oxford
OX F OR D U N I V E R S I T Y PR E S S
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Library of Congress Cataloging-in-Publication Data
Names: Walsh, Anthony, 1941- author. | Hemmens, Craig, author.
Title: Law, justice, and society : a sociolegal introduction / Anthony Walsh,
Boise State University; Craig Hemmens, Washington State University.
Description: Fourth edition. | New York: Oxford University Press, 2016.
Identifiers: LCCN 2015049374 (print) | LCCN 2015050025 (ebook) | ISBN
9780190272753 (alk. paper) | ISBN 9780190610418 (eBook)
Subjects: LCSH: Law–Social aspects–United States. | Justice, Administration
of–United States. | Sociological jurisprudence. | LCGFT: Textbooks.
Classification: LCC KF386 .W325 2016 (print) | LCC KF386 (ebook) | DDC
340/.115–dc23
LC record available at http://lccn.loc.gov/2015049374
Printing number: 9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
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Dedicated to my drop-dead gorgeous wife, Grace; my sons, Robert
and Michael, my stepdaughters Heidi and Kasey; my grandchildren
Robbie, Ryan, Mikey, Randy, Christopher, Ashlyn, Morgan, Stevie,
Vivien, and Frankie; and my great grandchildren, Kaelyn, Logan,
Keagan, Caleb, Lucas, and Brayden. I should not forget the spouses that
made this all possible: Patricia, Dianna, Sharon, Karen, Collette,
Marcus, Michael, Amy, Jenna, and Mary Beth. –A.W.
Dedicated to Mary, Emily, Sera, Amber, and Max,
and to all my students—C. H.
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“What is hateful to you, do not to your fellow man.
This is the law: all the rest is commentary.”
Talmud, Shabbat 31a.
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BRIEF CONTENTS
pr eface
xix
ack now ledgmen ts
xxiii
Ch a p t er 1
LAW: ITS FUNCTION AND PUR POSE
1
Ch a p t er 2
JUSTICE AND THE LAW
28
Ch a p t er 3
MAKING LAW
57
Ch a p t er 4
FEDER AL AND STATE COURTS
87
Ch a p t er 5
CR IME AND CR IMINAL LAW
111
Ch a p t er 6
CR IMINAL PROCEDURE
134
Ch a p t er 7
CIVIL AND ADMINISTR ATIVE LAW
162
Ch a p t er 8
JUVENILE JUSTICE
196
Ch a p t er 9
THE LAW AND SOCIAL CONTROL
223
Ch a p t er 10
THE LIMITS OF SOCIAL CONTROL: POLICING VICE
253
Ch a p t er 11
LAW, SOCIAL CHANGE, AND THE CLASS STRUGGLE 290
Ch a p t er 12
WOMEN AND THE LAW (by Mary K. Stohr)
324
Ch a p t er 13
R ACIAL MINOR ITIES AND THE LAW
352
Ch a p t er 14
COMPAR ATIVE LAW: LAW IN OTHER CULTURES
386
a ppendi x es
419
glossa ry
437
table of cases
461
photo cr edi ts
468
index
469
vii
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DETAILED CONTENTS
pr eface
xix
ack now ledgmen ts
Ch a p t er 1
Ch a p t er 2
xxiii
1
2
3
LAW: ITS FUNCTION AND PUR POSE
Introduction
What Is Law?
The Six Primary Characteristics of Culture
and Their Relationship to Law
1. Beliefs
2. Values
3. Norms
4. Symbols
5. Technology
6. Language
The Code of Hammurabi
Early Thinkers About Law
Plato
Aristotle
Thomas Hobbes
John Locke
John Rawls
Sociological Perspectives of Law
Max Weber
Émile Durkheim
Two Opposing Perspectives: Consensus and Conflict
The Consensus Perspective
The Conflict Perspective
Summary
Discussion Questions
References
3
4
4
5
7
8
9
10
11
11
12
13
14
15
16
17
19
21
22
22
24
26
26
JUSTICE AND THE LAW
Introduction
What Is Justice?
Distributive Justice
Retributive Justice
28
29
29
29
31
ix
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x
Ch a p t er 3
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Detailed Contents
Problems with Aristotle’s Definition of Justice
Legal Realism
Where Does Justice Come From? Two Perspectives
of Law and Justice as Natural
The Transcendental Natural Law Perspective
The Evolutionary Perspective
What Is the Relationship of Law to Justice?
Equity
An Example of an Equity Decision
Garofalo and Natural Crime
The Rule of Law
Justice Evolving: Cesare Beccaria and Reform
Herbert Packer’s Models of Criminal Justice
The Crime Control Model
The Due Process Model
An Illustration of the Models in Action
Summary
Discussion Questions
References
Cases Cited
34
35
37
38
40
42
43
44
45
46
48
49
50
50
51
52
54
54
56
MAKING LAW
Introduction
Common Law
Precedent and Stare Decisis
Sources of Law
Sources of Individual Rights
The Constitution
The Bill of Rights
First Amendment
Second Amendment
Third Amendment
Fourth Amendment
Fifth Amendment
Sixth Amendment
Seventh Amendment
Eighth Amendment
Ninth Amendment
Tenth Amendment
Other Amendments
Thirteenth Amendment
Fourteenth Amendment
Standard of Review
Incorporation of the Bill of Rights in the Fourteenth Amendment
Judicial Review
Marbury v. Madison
57
57
58
59
61
62
63
64
64
66
67
67
68
70
72
72
72
73
73
74
74
75
77
80
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Detailed Contents
The Process of Amending the Constitution
Summary
Discussion Questions
References
Cases Cited
xi
82
83
84
84
85
Ch a p t er 4
FEDER AL AND STATE COURTS
Introduction
Jurisdiction
The Federal Courts
District Courts
Courts of Appeals
Supreme Court
The State Courts
Overview of the Criminal Process
The Jury and Its Selection
Jury Selection
The Trial
Sentencing
Appeals
Court Actors
Judges
Prosecutors
Defense Attorneys
The Legal Profession
Summary
Discussion Questions
References
Cases Cited
87
88
89
90
91
93
94
96
98
100
101
102
103
103
104
104
106
107
107
108
109
110
110
Ch a p t er 5
CR IME AND CR IMINAL LAW
Introduction
What Is Crime?
Sources of Criminal Law
Limitations on Criminal Law
Elements of Criminal Liability
Common Elements of Criminal Offenses
Liability Without Fault
Inchoate Crimes
Attempt
Solicitation
Conspiracy
Parties to Crime
Defenses to Criminal Liability
Justification Defenses
Excuse Defenses
Procedural Defenses: Entrapment
111
111
112
114
114
116
116
119
119
119
120
120
120
121
121
122
124
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xii
Ch a p t er 6
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Detailed Contents
Crimes Against the Person
Murder
Forcible Rape
Aggravated Assault
Robbery
Crimes Against Property
Arson
Burglary
Larceny/Theft
Crimes Against Public Order and Morality
Summary
Discussion Questions
References
Cases Cited
125
125
127
127
128
128
129
129
130
131
131
132
133
133
CR IMINAL PROCEDURE
Introduction
Purpose of Criminal Procedure Law
Sources of Criminal Procedure Law
Search and Seizure Law and the Fourth Amendment
The Warrant and Reasonableness Clauses
Probable Cause
Arrest
When an Officer May Arrest
Manner of Arrest
Types of Seizures
Searches
Reasonable Expectation of Privacy
Exceptions to the Search Warrant Requirement
Right to the Assistance of Counsel
Right to Counsel During Interrogations
and Pretrial Identification Procedures
Custody
Interrogation
Circumstances in Which Miranda Is Not Required
Extension and Application of the Miranda Warnings
Pretrial Identification Procedures
The Confrontation of Witnesses Clause
The Right to Compulsory Process Clause
The Exclusionary Rule
Advancing Toward the Exclusionary Rule
Curtailing the Exclusionary Rule
Summary
Discussion Questions
References
Cases Cited
134
135
135
136
136
137
137
137
138
138
138
140
140
141
146
147
148
148
148
149
150
150
151
152
152
154
157
158
158
159
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Detailed Contents
xiii
Ch a p t er 7
CIVIL AND ADMINISTR ATIVE LAW
Introduction
Differentiating Criminal and Civil Law
Tort Law
Tort Categories
Defenses to Liability
Tort Reform
Property Law
Interests in Real Property
Interests in Personal Property
Contract Law
Elements of a Valid Contract
Family Law
Who May Marry Whom?
The Supreme Court and the Right to Marry
The Road to Same-Sex Marriage
Common Law Marriage
Divorce and Annulment
Dividing Property, Child Custody, and Spousal Support
Administrative Law
Origins and Growth of Administrative Agencies
Legislative Function of Administrative Agencies
Investigatory and Enforcement Function
of Administrative Agencies
Judicial Function of Administrative Agencies
Administrative Law and Corporate Crime
Recent Responses to Corporate Crime
Environmental Law
The Development of Environmental Laws and Regulations
Enforcement of Environmental Laws
Environmental Crime
Summary
Discussion Questions
References
Cases Cited
162
163
163
166
168
169
170
171
172
173
173
174
175
176
176
177
179
180
180
181
181
183
JUVENILE JUSTICE
Introduction
What Is Juvenile Delinquency?
The Extent of Delinquency
Developmental Factors and Juvenile Delinquency
History and Philosophy of Juvenile Justice
Institutional Control
Childhood in the United States
The Child Savers
The Beginning of the Juvenile Courts
196
196
197
197
199
200
201
202
204
204
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192
193
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xiv
Detailed Contents
Juvenile Waiver to Criminal Court
Extending Due Process to Juveniles
Kent v. United States
In re Gault
In re Winship
McKeiver v. Pennsylvania
Breed v. Jones
Schall v. Martin
Graham v. Florida
Miller v. Alabama
The Juvenile Death Penalty
Eroding the Distinction Between Adult
and Juvenile Court Systems
Restorative Justice
Summary
Discussion Questions
References
Cases Cited
Ch a p t er 9
Ch a p t er 10
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207
208
209
210
210
211
211
212
212
212
215
216
218
219
220
222
THE LAW AND SOCIAL CONTROL
Introduction
What Is Social Control?
A Typology of Social Control
The Law as a Social Control Mechanism
Punishment and Deterrence
Other Philosophies of Punishment
Black’s Styles of Social Control
Social Control and the Criminal Justice System
Is the United States Soft on Crime?
Plea Bargaining
The Death Penalty Debate
Arguments Against the Death Penalty
Arguments Favoring the Death Penalty
The Law and Social Control of Political Dissent
Therapeutic Social Control: Law and Psychiatry
“No Taxation Without Representation!”:
A Case of Judicial Social Control
Summary
Discussion Questions
References
Cases Cited
223
224
224
224
226
226
229
230
232
232
234
235
237
238
240
244
THE LIMITS OF SOCIAL CONTROL: POLICING VICE
Introduction
What Is a Vice Crime?
Homosexuality and Sodomy
The Law and Gay Rights Versus Religious Liberty
253
254
254
257
259
246
248
249
250
252
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Detailed Contents
The Concept of “Compelling Government Interest”
Can the Rights of Both Gays and Religious Dissenters
Be Protected?
Prostitution and Commercialized Vice
Should Prostitution Be Decriminalized/Legalized?
Pornography/Obscenity
Abortion
Alcohol and Illicit Drugs
Taming the Beast in the Bottle
Illicit Drugs
The Future of Drug Regulation
Summary
Discussion Questions
References
Cases Cited
Ch a p t er 11
Ch a p t er 12
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LAW, SOCIAL CHANGE, AND THE CLASS
STRUGGLE
Introduction
What Is Social Change?
The Law as a Cause of Social Change
Social Movements, the Law, and Social Change
British Law and the American Revolution
Law and Social Engineering in the Former USSR
The US Supreme Court and Social Change
Dynamic and Constrained Views of the Supreme Court’s Power
The Legitimacy Basis of the Court’s Power
Justice Anthony Kennedy: The Most Powerful Man
in the United States?
Interpreting the Constitution: Strict Construction
or Living Document?
The Supreme Court and the Class Struggle
The Fourteenth Amendment and Business Interests
Social Justice, Equality, and Freedom: A Debate
The Argument for Social Justice
The Argument Against Social Justice
The Supreme Court’s Role in Inducing Social Change
Bringing the Country Together Through Case Law
The Activism of the Warren and Burger Courts
Summary
Discussion Questions
References
Cases Cited
WOMEN AND THE LAW (by Mary K. Stohr)
Introduction
Feminist Legal Theory
xv
260
263
266
268
270
273
278
279
280
282
283
285
285
289
290
291
291
292
293
295
297
299
299
300
302
303
305
307
311
312
313
315
315
317
318
320
320
323
324
325
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Detailed Contents
Women and Law in History: The Birth of Misogyny
and Other Triumphs
The Relative Value of Citizens: The Struggle
for Women’s Suffrage
Woman as Human and Person
Rape and Other Misogynous Atrocities
Women’s Work and Other Legal Matters
The UNCEFDW and the Equal Rights Amendment
Domestic Violence
Women’s Representation in the Legal Profession
The Bias Studies
Law, Equality, and Justice
Building Understanding
Summary
Discussion Questions
References
Cases Cited
Ch a p t er 13
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R ACIAL MINOR ITIES AND THE LAW
Introduction
African Americans
Slavery and the Law
The Amistad Case
The Dred Scott Case
Emancipation and the Reconstruction Period
The Emergence of Jim Crow Laws
Segregation, Disenfranchisement, and the Plessy
and Williams Cases
Lynching and Black Protest
“We Shall Overcome”
Congressional Activity
The Cold War and International Pressure
American Indians
The Early Years
The Marshall Trilogy: Defining Indian Status
The Period of Removal and Physical Genocide
The Assimilation Period and Cultural Genocide
The Beginning of the End of Cultural Genocide
(With a Few Backward Steps)
Asian Americans
Hispanics
The Mexican-American War and the Treaty
of Guadalupe Hidalgo
Push and Pull: Invitation and Exile
Segregation, Jury Representation, and Voting Rights
326
329
333
333
335
337
338
340
344
345
346
347
348
348
351
352
353
353
353
355
356
357
358
359
361
361
363
363
364
364
365
366
368
369
370
372
372
374
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Detailed Contents
xvii
How Far Have We Come?
Summary
Discussion Questions
References
Cases Cited
377
379
381
381
384
Ch a p t er 14
COMPAR ATIVE LAW: LAW IN OTHER CULTURES
Introduction
Law in Preliterate Bands and Tribes
Law in the Modern World: The Four Traditions
Common Law
Civil Law
Socialist Law
Islamic Law
The Four Traditions and the Rule of Law
The Convergence of Systems
Summary
Discussion Questions
References
386
387
387
390
391
393
400
405
411
413
415
416
416
a ppendi x a
Consti t u tion of t h e Un i t ed Stat es of A mer ica
419
a ppendi x b
St uden t-Fr iendly Legal Websi t es
435
glossa ry
437
table of cases
461
photo cr edi ts
468
index
469
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PREFACE
Law, Justice, and Society: A Sociolegal Introduction (fourth edition) is a text designed for
use in courses such as Law and Justice, Introduction to Law, and Sociology of Law.
Several aspects of this text are not found in competitive texts. Many texts are written
by authors with recognized expertise in only one or two of the areas covered, which
results in very good chapters in those areas but also produces chapters that may contain errors and misunderstandings. This text is a collaborative effort that draws on
the expertise of scholars with extensive track records in publishing, teaching, and
actual field practice in the topics covered.
Law per se can be a dry topic when approached from a law school perspective.
After all, law schools are in the business of turning out professionals who know how
to navigate treacherous legal waters on behalf of their clients. This book is not a law
book but rather a book about law for students wanting to learn the relationship of law
to justice and to society. Law school classes focus on the law almost exclusively; our
goal is to place the law in its social context. It is a book about how law as a social institution fits into and shapes other institutions. Most students who take a course such
as Law and Justice or Sociology of Law have no intention of going to law school and
just want to know the relationship of law to their own disciplines and to themselves
as citizens, as well as the functions of law in their society. We are all potential witnesses, jurors, victims, or even offenders.
This fourth edition has been thoroughly updated in all respects. As usual, we
have benefitted greatly from users and reviewers of this book and have incorporated
most of the material they suggested to us. We have incorporated the truly monumental Supreme Court decisions leading to the nationwide legalization of gay marriage
in Chapter 7. We have also noted that this has led to a conflict of rights with small
business owners who object to having to facilitate gay weddings on religious grounds.
This clash of gay rights and religious liberty will be with us for some time, so we
have an extensive section on it in Chapter 10. Perhaps the biggest improvement in the
Fourth Edition is the inclusion of additional visual material. One of our reviewers
opined that the text needs to be broken up more with photos and graphs illustrating
the points made in the text. I think you will agree that this has resulted in a more
visually attractive and student-friendly text.
Chapters 1 and 2 introduce the idea of law and justice. These chapters discuss the
philosophy, history, and sociology of law. We even take a look at how some evolutionary biologists have viewed the law and its origin in nature, as opposed to the view
that it is purely a social construction. We ask in these chapters what law and justice
is, where it comes from, how it has been conceived in the past, and what its function
xix
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xxPreface
in society is. Readers will come away from these chapters realizing that few things in
modern life are more important than the law.
Chapters 3 through 8 introduce the various aspects of modern American law and
justice. Chapter 3 focuses on the process of making law and describes the Bill of
Rights. Chapter 4 focuses on the federal and state court systems and the processes
that occur within them. Chapter 5 examines criminal law, major crimes, and legal
defenses. Chapter 6 looks at criminal procedure, such as the right to an attorney and
the exclusionary rule. Chapter 7 covers various aspects of civil and administrative
law, such as torts, family law, contract law, and white-collar crime. Chapter 8 focuses
on the juvenile justice system.
Chapters 9 through 11 are more sociological and historical in orientation, focusing on how law affects the processes of social change and social control. Chapter 10
concerns the limits of law as a social control mechanism and explores some so-called
vice crimes and the law’s differing approach to them across time and place. Chapter 11
explores how the law has been involved in momentous changes in the United States
from before the American Revolution to the present day, with special emphasis on
the role of the Supreme Court. We also examine the special role of the law in making
society possible by its role in social control and the role of social movements in the
process of social change.
Chapter 12 takes on a topic sorely lacking in competitive texts—women and the
law. Its author, Dr. Mary K. Stohr, is a major figure in feminist criminal justice circles.
She has had criminal justice field experience as a correctional officer and counselor
and has served as an expert witness in court cases dealing with women’s issues.
Chapter 13 provides an overview of the law as it has been applied to racial minorities in the United States from the earliest days of white settlement to the present.
It documents the fight against slavery and the Indian fight to maintain cultural
independence as well as touching on the Asian and Hispanic experience in the
United States. As far as we are aware, this is the only law and society text that devotes
a whole chapter to this important topic.
Chapter 14 focuses on comparative law. We learn far more about our own system
of law if we know a little about other systems. The chapter looks at law in bands and
tribes and in the four major legal traditions in the world today: common, civil, Islamic,
and socialist. Students tend to become particularly interested in the practices of non–
common law systems.
We hope that at the conclusion of a course based on this book students will have
achieved the following primary objectives.
1. An appreciation of the role of law in society. Law is arguably the most important of all human inventions, based as it is on our innate sense of fairness,
decency, and concern for a peaceable and orderly existence. We have tried to
provide you with a “feel” for what law means and where it has come from
(both in evolutionary and cultural terms). Readers will come to a deeper understanding of the legal system as a basic social institution and of its relationship to other institutions, such as the family, the economy, and government,
and to social control and social change. The limits of the law in trying to
prevent change and to police private morality are also discussed.
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Preface
xxi
2. A basic understanding of the courts, law-making, and criminal substantive
and procedural law. This book is an introduction to learning about law rather
than learning law. Learning law is the process of becoming educated and socialized into the legal profession, whereas learning about law is the process of
becoming an informed citizen. The student is given enough detail about the
basics of law that every educated adult should know for participation in a
democracy. This detail is provided with as little legal jargon as possible.
3. An appreciation of the concept of the rule of law. The rule of law has been
called the most important of all legal concepts. It is imperative that citizens of
democracies know what it is, how it has evolved, and the mechanisms in
place to ensure its survival. Imbedded in this rule is the relatively modern
notion of due process, which involves procedural rules (the legal “dos and
don’ts”) that must be followed by criminal justice officials to ensure fairness
and impartiality in the processing of criminal cases. The evolution of the
once-absurd idea of due process is a fascinating story going back as far as the
Magna Carta in 1215.
4. An understanding of comparative law. Understanding how other cultures
view and implement law is one of the most interesting features of the study
of law. It has been said that if you know only your own culture, you don’t
know your own culture. The process of understanding almost anything necessarily involves comparison and contrast. The law in the United States has
English common law as its foundation. The most prevalent form of law in the
world today is civil, or code, law, which differs in many interesting ways from
the common law. However, it differs considerably less from the common law
than do Islamic and socialist legal systems.
5. Knowledge of the law’s treatment of minorities and minors. Racial/ethnic
minorities, women, and minors have been excluded from full constitutional
protection and historically have been treated in very different ways than have
white male adults. This unequal treatment has often been sanctioned and
even encouraged by the law. These specialized chapters document how the
law has evolved to come to view unequal treatment as morally wrong and
how it has gone about rectifying its earlier mistakes.
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ACKNOWLEDGMENTS
We would first of all like to thank Executive Editor Steve Helba. Steve’s commitment to the project and tremendous enthusiasm is greatly appreciated (as is his
trips to the hinterlands to see his authors “in action”). Our fourth edition copyeditor, Kari Lucke, spotted every errant comma, dangling participle, and missing
reference in the manuscript, for which we are truly thankful, and production
editor Amy Gehl made sure everything went quickly and smoothly thereafter.
Thank you one and all.
We are also most grateful for the many reviewers who spent considerable time
providing us with the benefit of their expertise as the text was revised. Attempting
to please so many individuals is a trying task, but one that is ultimately satisfying,
and one that undoubtedly made the book better than it would otherwise have been.
These expert legal scholars include:
Michael Bogner, Chadron State College
Cary Federman, Montclair State University
Laura Hatcher, Southern Illinois University
Lenore Molee, Montclair State University
Robert W. Peetz, Midland College
Godpower O. Okereke, Texas A&M University at Texarkana
John Riley, University of Alaska
Nilsa Santiago, John Jay College of Criminal Justice
and several anonymous reviewers.
We also thank Marianne Hudson for helping with the test bank and for developing the excellent PowerPoint presentation that accompanies this text. Thanks
especially to Michael Bogner of Chadron State College, who supplied Figures 1.1,
3.1, 3.2, and 6.2.
Finally, Anthony Walsh would like to acknowledge his most wonderful and
lovely wife, Grace Jean, for her love and support during this and all the other projects
that have taken him away from her. She is a real treasure, the pleasantest of persons,
candy for his eye, and the center of his universe.
xxiii
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xxivAcknowledgments
Craig Hemmens would like to acknowledge the love and support of his wife and
colleague, Mary Stohr, and his stepdaughter, Emily Stohr-Gillmore. He would also
like to thank his former departmental colleague and once and future friend and coauthor, Tony Walsh, for encouraging him to avoid the trap of always thinking like a
lawyer. Last, thanks to all the students who have listened and (hopefully) learned
about the role of law in a just society.
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CHAPTER 1
LAW: ITS FUNCTION
AND PURPOSE
T
he bomb blast sent Jawad Sabah flying from his seat in Ali’s tea shop in
Baghdad. Jawad went there daily to seek the solace of relatives and
friends following the gang rape and murder of his wife, Abeer, by a marauding
militia gang six months earlier. He picked himself up dusty but uninjured,
saw the flame-engulfed bus, and cried soulfully at the futility and wickedness of the world around him. Jawad wasn’t thrilled with life under the
brutal dictatorship of Saddam Hussein, but at least Baghdad was relatively
safe, and he could drink his tea undisturbed. He remembered the jubilation
he felt after the Americans overthrew Hussein in 2003 and his brutal police
force melted from the scene. He also remembered the foreboding as looting
and vengeance killings began to openly occur as Iraq plunged ever deeper
into chaos. What law remained in Baghdad was imposed by the “infidel”
Americans or by ineffectual and openly corrupt Iraqi police officers, neither
of which could be considered legitimate by those whose behavior they were
charged with regulating.
The Unites States’ attempt to impose democracy on a country whose
values, norms, and customs are at odds with it has not worked out well. The
violence peaked in 2006 as Shiites and Sunnis continued to blow each other
up, although things significantly improved after the troop surge of 2007. The
American military finally withdrew from Iraq on December 15, 2011, ending
an action that left thousands of American servicemen and many more thousands of Iraqis dead or wounded. Since the withdrawal of American forces,
violence has again escalated across the country, and the Islamic State (IS) terrorist group is tearing it apart.
If Iraq is to become a viable state, it must afford its people security, stability, and personal safety; these are the things that law is supposed to provide.
The Iraqi Constitution is reasonably democratic for that area of the world,
but, as with all law, it is just a set of flat statements on paper without the will
of human actors to give it life. For the law to be more than words on paper
it needs the respect and even the awe of all individuals affected by its
1
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Law, Justice, and Society: A Sociolegal Introduction
constraints and obligations. It requires assurances that the police and judicial
processes will be open to scrutiny and will provide equal protections for all
citizens. Without such things, government loses its credibility, the economy
languishes, organized crime flourishes, vigilantism emerges, and innocent
people like Jawad are victimized. This chapter explores the cultural underpinnings and functions of law, describes how ancient philosophers and early
sociologists have viewed it, and introduces the idea of natural law.
INTRODUCTION
When most people think of law, images of the uniformed police officer or of the
pomp and circumstance surrounding the criminal courts tend to dominate. If we
ponder a little longer, we may conjure up images and smells of large, dusty books full
of sterile rules and a multitude of archaic Latin terms and phrases and conclude that
law is a pretty dull subject. Nothing could be further from the truth! Few topics are
broader in scope than the law, and none is more important to social life, as Jawad
Sabah would doubtless agree. For better or for worse, law insinuates itself into every
aspect of social life, governing the relationship between person and person; between
institution and institution; and between persons, institutions, and the state; we are
all potential victims, witnesses, jurors, and even offenders. The point is that law is a
social institution and to study it is to gain valuable understanding of one’s society—
its heritage, its values, and its day-to-day functioning.
Law has always been considered of the utmost importance in American life. The
excerpt from Abraham Lincoln’s Lyceum Address, given in 1838 when he was only
28 years old makes this abundantly clear:
Let reverence for the laws, be breathed by every American mother, to the
lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in
Almanacs;—let it be preached from the pulpit, proclaimed in legislative
halls, and enforced in courts of justice. And, in short, let it become the
political religion of the nation; and let the old and the young, the rich and
the poor, the grave and the gay, of all sexes and tongues, and colors and
conditions, sacrifice unceasingly upon its altars. (Basler, 2007, p. 6)
Law justly promulgated and justly applied is the bedrock of individual liberty
and social progress. Former legal counsel for the British government Phillip Allott
(2001) augmented Lincoln’s awe of the law when he wrote:
In the making of the human world, nothing has been more important
than what we call law. Law is the intermediary between human power
and human ideas. Law transforms our national power into social power,
transforms our self-interest into social interest, and transforms social
interest into self-interest. (p. 19)
Allott is saying that law is a mechanism by which diverse individual and community interests become as close to being the same thing as possible. Law has been a
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3
study of endless fascination and the subject of endless debate for generations of philosophers and social scientists—let us join them.
WHAT IS LAW?
What is this thing called law of which Allott is so enamored? The question is a simple
one with a variety of complex answers. The question also usually leads to others, such
as “Where did it come from?” “How did it originate?” “What is it based on?” “Whom
does it serve—everyone, or just those with the influence to get laws enacted and
enforced?” The next two chapters attempt to answer these questions from a number
of different perspectives. But let us first try to define law. The seventeenth-century
English philosopher Thomas Hobbes (1952) defined law as “just a statute, commanding those things which are honest, and forbidding the contrary” (chap. 26.1). But law
is much more than an aggregate of statutes that multiply promiscuously and then
sometimes are sloughed off; “it is crucially the art and technique of applying these
heterogeneous [statutes and] norms in the administration of justice” (Murphy, 2006,
p. 106). We could provide other definitions that various thinkers have given us, but we
spare readers that and offer our own definition: Law is a written body of general rules of
conduct applicable to all members of a defined community, society, or culture, which emanate
from a governing authority and which are enforced by its agents by the imposition of penalties
for their violation. This definition would not be acceptable to everyone. Nevertheless,
it is offered as a working definition so that we may proceed with our endeavor.
Our definition is appropriate for all modern systems of law, but it does not completely fit preliterate societies, since by definition such societies do not possess writing, nor do they typically employ agents to enforce rules of conduct. However, law as
a system of proscribed and prescribed behavior is certainly not unique to highly
developed societies with written statutes and a formal system of law enforcement.
All groups of people living together in organized groups have at least some type of
rudimentary rules for governing conduct. They would not last very long as organized groups if they did not, for law is at the center of all organized social life. Indeed,
the word law itself has come to us from a variety of Latin and Nordic words meaning
“to bind” (people together). People “bound together” share a common culture, and
all cultures share certain core elements. Our first task is to see how these common
elements are related to law.
THE SIX PRIMARY CHARACTERISTICS OF CULTURE
AND THEIR RELATIONSHIP TO LAW
Culture is the totality of learned socially transmitted behaviors, ideas, values, customs, artifacts, and technology of groups of people living in a common society. It is
the transmission of all sorts of information from generation to generation by non­
genetic means. All cultures possess six primary elements: beliefs, values, norms,
symbols, technology, and language. These elements represent critical information
that maintains and transmits culture across the generations. Without a general
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Law, Justice, and Society: A Sociolegal Introduction
consensus about the nature of a shared culture in terms of the six primary elements,
the socialization process would be a difficult task indeed. All of these elements are
related to one another and, most centrally for our purposes, to the law. Let us take
these elements one by one and see how they are related to the law.
1. Beliefs
Beliefs are ideas that we have about how the world operates and what is true and
false. Beliefs may be about phenomena that are tangible and observable and things
that are not. Information that is observable or verifiable may be derived from scientific experimentation or some other type of experience. For example, although we can
scientifically demonstrate that the earth is round and that it rotates around the sun,
most people in Christopher Columbus’s day were convinced that it was flat and that
the sun rotated around the earth. However, scientists knew that the world was round
long before Columbus’s voyage; the Greek mathematician Eratosthenes had calculated its circumference with remarkable accuracy more than 1,000 years earlier. In
those days, knowledge and news, and hence beliefs, traveled slowly.
Cultures also communicate shared beliefs about intangible, nonobservable phenomena such as religious and philosophical beliefs relating to “ultimate” questions
such as “Who am I?” “What is the purpose of life?” “Where will I go when I die?”
and “How can I lead a just and good life?” These questions are not amenable to scientific answers, but they have been answered to the satisfaction of millions by religious, spiritual, and philosophical systems of belief that are even more important to
understanding culture and law than are beliefs that are open to verification or falsification. They are more important because they are at the core of human concerns
and meaning and because they appease the uncomfortable irritation of doubt.
Laws are often enacted to support our most deeply held beliefs, and as beliefs
change over time, so do the laws that support them. When the established doctrine of
the Roman Catholic Church was that the earth was the center of the universe and that
the sun revolved around it, astronomers who held contrary beliefs were labeled heretics and were in danger of severe punishment or even death if they made their beliefs
public (one of the reasons beliefs traveled slowly back then). Similarly, when slavery
was permissible in the United States, laws were made to protect the “property rights”
of slave owners. Now that we have ceased to believe in prescientific astronomical notions or in slavery, laws regarding heresy or property rights over human beings no
longer exist in Western societies. Laws against heresy, however, continue to exist in
many Islamic societies, and there are remnants of legally sanctioned slavery still existing in some African countries. The point is that if enough people believe something
is real, the consequences are often real regardless of the empirical validity of the belief.
Witches do not exist (at least not in the stereotypical, broom-flying, spell-casting,
potion-making sense), but this empirical truth was of no comfort to the thousands of
women legally burned over the centuries because people believed witches did exist.
2. Values
Values refer to normative standards shared by the culture about what is good and
bad, correct and incorrect, moral and immoral, normal and deviant. Values are more
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5
general and abstract than specific beliefs, although values themselves differ in their
generality and specificity. Shared values are an important binding force in culture
and an important integrative mechanism that combines the disparate parts of our
personalities into a coherent self-concept (Walsh, 2006). American values are based
on transplanted and modified Western European values. Examples of broad and general “core” values in all Western societies include the Golden Rule, justice, equality,
liberty, and the sanctity of life. Even though everyone defines these core values as
good, people of different ideological persuasions may have quite different images in
their heads when they talk about them. Take the different views of fairness and
equality held by conservatives and liberals. Conservatives view fairness as an equalopportunity process—a nondiscriminatory chance to enter the race—that governments
can guarantee via law; liberals tend to see fairness as equality of outcome, which implies that all should cross the finishing line at the same time—which no power on
earth can guarantee. If everyone is equally subjected to the same rules and equally
judged by the same standards, fairness is achieved, according to conservatives, even
if equality of outcome is not. Because they want to achieve greater equality of outcomes, liberals tend to believe in subjecting certain individuals whom they consider
disadvantaged to different rules and then judging them by different standards.
3. Norms
There are other rules governing appropriate conduct that are more specific than
values known as norms. A norm is the action component of a value or a belief patterning social behavior in ways consistent with those values and beliefs. Some norms
have serious moral connotations and are known as mores (“more-rays”). These standards are moral imperatives, and violations of them may be met with chastisement
or serious punishment. Less serious norms are called folkways. Lacking the moral
connotations of mores, folkways are habits that many people conform to automatically, such as the little rules of etiquette when meeting one’s fiancée’s parents.
Laws always reflect the core values and mores of a culture. Western core values
typically come from its Jewish/Christian heritage (think of the Ten Commandments
and the criminal law: “Thou shalt not kill,” “Thou shalt not steal,” etc.). Few laws are
ever passed that contravene deeply held cultural values without significant opposition from large segments of society. Laws assuring abortion rights, for instance, are
so hotly debated because they involve conflicting core values: the sanctity of human
life versus a woman’s privacy and the liberty to choose what happens to her body.
Similarly, efforts to pass a constitutional amendment banning the burning of the
American flag (exemplifying the value of patriotism) run up against the conflicting
values of freedom of speech and political protest. Law is thus a social tool in which
the norms reflective of a people’s deepest values are put down in writing to assure
the continuation of patterns of conduct that are deemed socially desirable.
Figure 1.1 illustrates the flow from values and beliefs to law. All societies have
behaviors they encourage and discourage through the use of informal rules. Discouraged behavior may eventually reach a point that society takes formal action by
enacting laws against it and specifying punishments for those who engage in it.
Legal philosophers differentiate between laws that arise from the norms and
customs of a given culture, which is known as positive law, with a hypothesized
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Law, Justice, and Society: A Sociolegal Introduction
Figure 1.1 The Progression from Informally Encouraged/Discouraged Behavior to Law
Encouraged
behavior
Discouraged
behavior
Values and
beliefs
Norms
Folkways
Mores
LAW
Figure provided by Professor Michael Bogner, Justice Studies Department, Chadron State
College (2006).
universal set of moral standards known as natural law. Legal positivism is a theory
of law that explains law by examining its cultural context and studying the cultural
sources of law as it is without passing moral judgments. Natural law adherents philosophize about the law as it ought to be. Believers in natural law view it as standing
above and placing limits on what is permissible in positive law, whereas positivists
draw a distinction between law and morality. It is not that positivists divorce law
from morality. Law and morality are always intertwined to some extent, but positivists aver that it is not necessarily so and that law is law if it has the appropriate authority behind it even if it offends moral sensibilities. Positivists insist that all law is
morally relative and must be judged according to the cultural context in which it
was made. That is, there are no “good” or “bad” laws judgeable as such outside of
their cultural context. The essential feature of law for most positivists is its coerciveness or authoritative power to command compliance with it, not its moral quality
(Leiter, 2001). Legal positivists may well agree that law should be moral but that we
should study law as we find it rather than as we would like it to be.
Natural law theorists counter that if everything is relative and there are no absolute standards for deciding among conflicting beliefs of right and wrong, all cultural
value systems are equally valid and anything goes. This limits discussion of issues of
morality and truth to descriptive and nonnormative discourse. It amounts to intellectual laziness hiding behind the mask of tolerance of diversity because it leads to the
conclusion that we can rest content with “truth” being whatever happens to be true for
us or for the culture in question. Relativism relieves us of the burden of being in error,
since there is no objective way of determining truth and error. Such a position, according
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to natural law adherents, is incoherent because it provides relativists with no defensible grounds for criticizing obnoxious cultural practices (the Holocaust, slavery, the
execution of homosexuals, female genital mutilation, torture, cannibalism, and so on).
We must have bedrock moral principles to base our law on or else “laws” are simply
the commands of a sovereign state backed by the gun. The great British legal philosopher H. L. A. Hart, although an ardent positivist, praised the US Constitution for incorporating moral principles, thus making “morality relevant to determining the law
in a manner consistent with positivism” (Soper, 1992, p. 2408).
4. Symbols
Anthropologists and sociologists often refer to nonmaterial culture as symbolic culture. Although the totality of symbolic culture includes nonphysical things such as
gestures, language, values, and norms, we concentrate here on physical and tangible
symbols that are identified with something else less tangible. Symbols are concrete
physical signs that “stand for” and signify abstractions that range from the mundane
and specific (the little man or woman painted on the restroom door) to those that are
suffused with meaning and can evoke the deepest of feelings such as a nation’s flag.
While the figures on the restroom doors point to something useful, they do not capture our emotions. A flag, while less useful in a day-to-day sense, expresses all that
it means to be a part of the nation signified by that piece of cloth. A symbol such as a
flag may transcend many cultures so that persons living in different cultures may
understand the symbol within their own cultural context. Think of the different
emotional responses evoked in Washington, Paris, and Teheran by seeing a mob
burning the American flag. The American flag is recognized as a symbol representative of the American nation in each of those cities, although this recognition has
vastly different emotional meanings to their citizens.
Symbols are of vast importance to the law, which is a rather abstract and intangible notion itself. Think of the symbolic meanings involved inside an imposing
courtroom, viewing robed (and sometimes bewigged) judges sitting on elevated
stages flanked by flags and uniformed law officers. Think of the “sacred” text of the
nation’s constitution, the pomp, the ritualism, the old-fashioned terminology sometimes used (“Hear ye!”), the formal oaths sworn, all of which symbolically support
the notion that the law is of great importance and above any individual. The law
must “stand for something” (which is what symbol means) that is agreeable to at least
the majority of society’s members if it is to be considered legitimate.
Finally, we have the symbol of justice in the Greek goddess Themis (Justitia for the
Romans) personifying the divine law established by the gods, whose familiar statue
is found atop many courthouses. She is usually depicted carrying scales to weigh
truth and fairness in one hand and a sword depicting the state’s power to enforce
its legal rulings in the other. She is also usually portrayed wearing a blindfold to
symbolize the idea that justice should be neutral and meted out objectively, with no
concern for the respective status, power, or identity of the parties involved. The symbolism surrounding the law helps those who observe it to “feel” its majesty and awesome power and thus helps to legitimize and sustain it.
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5. Technology
Technology is the totality of the knowledge and techniques a people employ to create
the material objects of their sustenance and comfort. As Karl Marx was fond of telling us, the different forms of technology employed by a culture (hunting and gathering, agriculture, industrial, postindustrial) create different physical, social, and
psychological environments. It should be obvious to all that the way we live and
work has profound effects on all aspects of our lives, including our beliefs, values,
and symbolic interpretations. The material trappings associated with life in a technologically advanced culture connote a special significance to its members that would
not be evident to persons in preliterate societies. The more technologically advanced
a society, the more complex the relationships among its parts, and the more that society relies on law to monitor those relationships.
Different stages of technology affect the law in at least three ways (Vago, 1991).
First, it supplies technical inventions and refinements (e.g., fingerprinting, DNA testing, polygraphy, computerized databanks, and closed-circuit TV cameras) that change
ways in which criminal investigations are conducted and the law is applied. Second,
technological advances in the media (the ability to televise congressional hearings
and courtroom dramas, videotapes of police officers beating suspects) may change
the intellectual climate in which the legal process is executed. Third, new technology
presents the law with new conditions with which it must wrestle. For instance,
modern practices such as artificial insemination and surrogate motherhood bring up
issues never dreamt about 50 years ago. If a man donates his sperm, or if a woman
carries the fertilized egg of another woman, what are their legal claims to the child?
How about other technology-driven issues such as surgical and chemical “cures” for
criminals, pornography and fraud on the Internet, human cloning, and the possible
uses and misuses of DNA profiling? How about freedom of expression in semipublic
venues like Facebook and Twitter? In 2009 bad-girl rocker Courtney Love was sued
for libel by a fashion designer for defaming her on Twitter. Love settled out of court;
so what can one say on Twitter?
The challenges that scientific and technological advances present for the law
are different from past challenges because many of these advances (nuclear power,
genetic engineering, chemical plants, and so on) have potentially catastrophic risks
attached to them. In the past, catastrophes (e.g., disease, natural disasters, and foreign
invasion) came overwhelmingly from events external to the affected society and
were accepted as normal, inevitable, and beyond the society’s control. Modernization
and globalization, however, have brought potential catastrophes internally manufactured and with global reach (Giddens, Duneier, & Applebaum, 2005). The nuclear
accident in Chernobyl, Ukraine, in 1986; the chemical leakage in Bhopal, India, in
1984; and the toxic waste incident in Love Canal, New York, in 1978 are examples of
huge manufactured disasters with consequences that extended beyond national
boundaries.
Because these and a host of other potential hazards are manufactured and internal rather than natural and external, we have evolved a risk society, meaning a society “increasingly preoccupied with the future (and also with safety), which generates
the notion of risk” (Giddens, 1999, p. 3). This does not mean that there are more risks
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9
today than in the past, although arguably there are, but rather that we are more aware
that we can do something about them. Risk is thus conceptually different from danger
or hazard in the sense that it is bound up with human control and “particularly with
the idea of controlling the future” (Giddens, 1999, p. 3). Automobiles are not going to
stop pouring excessive carbon dioxide into the air unless the law mandates lower
emission levels; the ozone layer will grow and global warming will increase unless
law mandates control of chlorofluorocarbon and puts a stop to deforestation. But
since these things occur cross-nationally, there is little that the legal system of a single
country can do except tend to the problems in its own backyard. The point is that
whether problems/risks/hazards are addressed by local, national, or international
law, law has an increasingly central role in our lives.
6. Language
Language is a vast repository of information about culture; it is in effect the “storehouse of culture.” It would be practically impossible to develop any kind of culture
as we know it without language. Language is a terribly complex thing, but children
learn it almost effortlessly, thanks to Mother Nature’s “technology” built in over eons
of evolutionary time. Human communication enables us to discuss the simple and
the profound, talk about events and ideas from the past, and plan for the future, and
it provides a way to convey a wide array of ideas and events to others. Language is
part of the great biological leap that separates the human species from other species.
Although animals communicate with one another, and some primates can even be
taught to communicate vocally in a rudimentary, humanlike way, only humans are
able to express and understand abstract ideas through language.
Language is created abstractly and is added to or modified according to the
needs of each culture. Words mean what they mean because culture defines the
meanings they denote. In cultures with writing—a symbolic representation of
the language—information can be recorded and transmitted to future generations.
Language thus becomes the vehicle for cultural evolution. In a very real sense,
cultural definitions existing in the language help to create reality for the members
of a culture.
Language is related to law in the most obvious way; it provides us with the
ability to formulate, articulate, and understand rules of conduct. Without language,
none of the other characteristics of culture would be possible, and our behavior
would be regulated only by vague visceral feelings of right and wrong impinging on
us through anger, fear, anxiety, joy, and empathy. Written language is absolutely necessary to the idea of law because written law warns everyone in advance about what
is forbidden conduct and what is not. Although preliterate cultures have rules, the
simplicity of such cultures necessitates only a few simple rules that everyone understands. The more complex a culture becomes, the more it relies on written codes of
conduct. This is a general principle of legal philosophy upheld by all anthropological,
historical, and sociopolitical data available to us.
Law, then, is integral to all aspects of culture. Since the dawn of civilization,
there has been some form of rules and sanctions designed to ensure socially desirable conduct and thereby bring order to a culture; to define authority and its limits;
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and to clarify the responsibilities, duties, and obligations members owe to one another. Given the great importance of law, it is not surprising that philosophers, historians, sociologists, and scholars from many other disciplines have debated the nature
and function of law for centuries. The ideas of some of these men are discussed in the
following sections. We limit ourselves to what these scholars had to say about topics
that have the greatest bearing on the content of other chapters in this book and to a
brief discussion of one of the earliest and most famous legal codes.
THE CODE OF HAMMURABI
The first legal codes showed that there were well-advanced societies that exhibited signs
of mature civilizations many centuries ago. The Code of Hammurabi (Hammurabi
was a King of Babylonia who lived from 2123 to 2081 bc) was long acknowledged as
the oldest known written code of law. We now know, however, that other documents
of this type existed in the area of the Middle East called Mesopotamia, but no other
was so broad in its scope. The code was discovered inscribed on a round pillar, seven
feet four inches high. On the top of the pillar was Shamash, the sun god, handing the
legal code to Hammurabi. The code of King Hammurabi was not law in the sense that
law is understood today, that is, a set of abstract principles applicable to all. Rather it
was a set of judgments originally pronounced to solve particular cases (Bottero, 1973).
Nor was it an attempt to cover all possible situations as modern codes are; and as far
as we know, it was never copied and distributed to those officials charged with the
day-to-day administration of Hammurabi’s vast kingdom (Sinha, 1990). Nevertheless,
the system of justice contained in the code showed signs of mature rule development
in that it governed relationships pertaining to sexual behavior, property rights, theft,
and acts of violence. The law’s administration was almost exclusively in the hands of
the priesthood. The law forbade retaliatory actions and deadly blood feuds among
the people, leaving punishments to be dispensed by the king’s agents. The “eye for an
eye, tooth for a tooth” (lex talionis) concept of justice stated in the code predates the
Old Testament passage familiar to Jews, Christians, and Muslims. The law introduced specified standards of conduct and remediation by independent third parties
to settle disputes. A written code, theoretically impartial in its application, represented a tremendous advance for society in general and the administration of justice
in particular.
Although the laws contained in the code were secular in nature, Hammurabi
was wise enough to buttress the codes (and his own) authority with the approval of
the gods. The linking of the code to an honored deity was a powerful piece of psychological gilding employed by many others before and after Hammurabi. The prologue
to the code reads,
Then Anu and Bel delighted the flesh of mankind by calling me, the renowned prince, the god-fearing Hammurabi, to establish justice in the
earth, to destroy the base and the wicked, and to hold back the strong
from oppressing the feeble: to shine like the Sun-god upon the blackhaired men, and to illuminate the land. (Edwards, 1971, p. 23)
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EARLY THINKERS ABOUT LAW
The extent to which law has been deemed important in the affairs of humans can be
gauged by noting that every social and political philosopher of any stature has felt
compelled to comment on it at some length. They have attempted to come to grips
with such topics as where law comes from, what its nature is, what it is for, why it is
necessary, whom it serves, and what human life would be without it. Philosophical
insights have been important in every field of inquiry as a beginning point, as a basis
for examining what may or may not be possible, and as a method by which we clarify
our terms and organize our thinking. We begin with Plato and his thoughts about
natural law and how it is related to positivist law.
Plato
Plato (427–347 bce) stands as one of the most influential thinkers in the history of
the world. Not only do his writings affect all Western legal systems, but his approach
to thinking about legal concepts influenced how law is taught and learned in most
Western universities. This method of inquiry became known as the “Socratic method,”
named after Plato’s mentor, Socrates. Rather than define the concepts to be discussed
at the outset, Plato’s definitions and ideas slowly unfolded in “dialogue” form as he
debated them in his imagination with Socrates.
Perhaps Plato’s best-known contribution to philosophy is his theory of forms. His
theory is of interest to us because it helps us to understand the ideas of natural law
and of justice developed by later philosophers and legal theorists. For Plato, all philosophy is an attempt to come to grips with forms, or ideas. Plato’s “ideas” are not
subjective mental images confined to our minds, but rather they are essences wholly
independent of our knowledge about them, which contain the only true and ultimate
realities. The objects (including the law) that we perceive through our five senses are
corrupt and transitory copies of these ultimate and eternal realities of the forms.
Among the imperfect objects we possess is the law. Only by apprehending the nature
and substance of the eternal ideas these copies mimic can humans act with wisdom,
and only by conforming to universal principles (forms) can the rules of rightful conduct be determined. The task of lawmakers is thus to gain an understanding of the
form or idea of law so that they can fashion the best possible resemblance of it that
humans are capable of making (Lavine, 1989).
Although never wavering from his theory of forms, Plato did not neglect to analyze and dissect the tangible world and the imperfect reality it contained. Because
human beings as they exist in the transitory world are imperfect copies of the idea
of humanness, their behavior was less than perfect. To regulate the self-interested,
contentious, and sometimes evil mortals, law was necessary even if it is also less than
perfect, as all manmade things are. Plato (1952) offered one of the most comprehensive
ideas of law in ancient times in a treatise on government:
When men have done and suffered injustice and have had experience of
both, not being able to avoid the one and obtain the other, they think that
they had better agree among themselves to have neither, hence there arise
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Law, Justice, and Society: A Sociolegal Introduction
laws and mutual covenants; and that
which is ordained by law is termed by
them lawful and just. This they affirm
to be the origin and nature of justice—
it is a mean or compromise, between
the best of all, which is to do injustice
and not be punished, and the worst of
all, which is to suffer injustice without
the power of retaliation; and justice
being at a middle point between the
two, is tolerated not as good but as
the lesser evil, and honored by reason
of the inability of men to do injustice.
(p. 311)
Plato further argued that the state was
virtuous, and it was only through the state
that the behavior of the citizenry could be regPlato and Aristotle
ulated. The state was superior to the individual
because only it could lay down a set of workable
rules to govern the complex behaviors of human beings. Anarchy and chaos would
be the inevitable result if law was not present to restrain the insatiable desires of the
citizenry. Without the law, human nature would run amok, since it always sought to
satisfy its appetites without much regard for the concerns of others. Plato felt that
humans lacked the power to distinguish good from evil, for if they had the power to
comprehend the difference, there would be no need for law. Plato’s concept of positivist law and of its necessity due to the insatiable and selfish appetites of human
nature would be given its greatest impetus by the British philosopher Thomas Hobbes
many centuries later—and later yet by the French sociologist Émile Durkheim.
Aristotle
Aristotle (384–322 bce) was a pupil of Plato. Aristotle assumed that the state was not
only created so individuals could simply live but so that they could live well. Aristotle
agreed with his master that law must be something more than mere convention,
a simple codification of custom. Aristotle disagreed with Plato on a number of other
law-related issues, however. Whereas Plato was an elitist who favored the rule of an
elite class (philosopher kings and guardians) whose great wisdom would guide the administration of law, Aristotle favored an egalitarian system in which the rulers are
subservient to the law. This faith in the common person and in the ultimate authority
of the law was a very radical idea, one that is difficult to find in the writings of any
other legal philosopher until John Locke’s work 2,000 years later. He knew that laws
passed by rulers tended to favor the interests of their own class and warned that
legislators must guard against these tendencies. Accordingly, the goal of the legislature must be to provide for the greatest happiness of the greatest number (Aristotle,
1952). Aristotle’s ideas were given impetus by British philosopher and lawyer Jeremy
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Bentham, who popularized the “greatest happiness for the greatest number” principle in the early nineteenth century.
Aristotle (1952) equated the concept of law with justice:
Since the lawless man was seen to be unjust and the lawful man just, evidently all lawful acts are in a sense just acts; for the acts laid down by the
legislative art are lawful, and each of these we say is just. (p. 377)
Persons acting unlawfully receive “too much” from society, and victims of their
behavior receive “too little.” The goal of law was to see that everyone receives what
they justly deserve by their actions. These just desserts may be in the form of rewards, if acting justly, or punishments, if acting unjustly. Aristotle’s ideas of justice
are expanded in the next chapter.
Thomas Hobbes
English philosopher Thomas Hobbes (1588–1679) was perhaps the most important of
the seventeenth-century legal philosophers. In his famous book Leviathan (“commonwealth” or “state”), we see Hobbes’s view of human nature lead him to views of law
quite different from those of Plato and Aristotle, although he mirrored Plato in advocating an all-powerful sovereign. Hobbes considered humans to be a selfish lot concerned only with their own interests. According to Hobbes, in the “state of nature”
(i.e., precivilized life), life was a “war of all against all” and was “nasty, brutish, and
short.” Fear of violence and death under such conditions drove human beings to
devise a social contract with one another to create a state that could protect them
from predation and exploitation.
Hobbes had a great concern for order in society (he had witnessed the bloody
English civil wars of 1642–1645 and 1648–1649) and argued for a strong sovereign
capable of enforcing the social contract and thus providing security from disorder
and anarchy. Hobbes (1952) disavowed any notion of natural law and was very much
a legal positivist, arguing that there are no
laws until a government is formed: “When a
Commonwealth is once settled, then are there
actually laws, and not before; as being then the
commands of the Commonwealth; and therefore also civil laws: for it is the sovereign power
that obliges men to obey” (p. 131). Justice is thus
identified with positive law, the form of which
was to be determined by a strong sovereign (in
the modern sense, the state) rather than with
some set of universal principles, as in the natural law of Plato and Aristotle. Laws are the
commands of the sovereign—nothing more,
nothing less. The sovereign’s subjects are morally obliged to obey because they are parties to
the social contract.
Thomas Hobbes
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Law, Justice, and Society: A Sociolegal Introduction
Hobbes’s overweening concern for order and security can be gauged by his opinion that any government that provided these things for its citizens, by whatever
means, was just. According to Deininger (1965):
The theme in Hobbes’s Leviathan is that men are normally better off even
in a despotic state than they would be in the absence of a political organization. Hobbes believes men are weak and cowardly, even subject to moments of sheer irrationality—thus needing for their protection a political
structure which, by its coercive might, can minimize disorder by restraining the rash actions of individuals and groups as well as by laying an obligation to act when security is at stake. (p. 153)
Hobbes’s defense of absolutist monarchy was published in 1661, just 12 years
after Charles I was beheaded by the English Parliament for trying to practice what he
preached. In many ways, Hobbes served to galvanize the thoughts of the Parliamentarians about what it was they were fighting for. Hobbes’s liking for unquestioned
obedience to authority and for peace at any costs provided them with an articulated
agenda they could oppose item by item. One person whose work can be construed as
a response to Hobbes is fellow English philosopher John Locke.
John Locke
John Locke (1632–1704) held a much more optimistic view of human nature than
Hobbes. Because of his views about the common person and the law, Locke’s writings have been interpreted by a number of individuals as providing justification for
the Glorious (English) Revolution of 1688, the American Revolution of 1776, and the
French Revolution of 1789 (Lavine, 1989). In The Second Treatise on Government, originally published in 1690, Locke described the state of nature as an inferior to the
organized political state only because of its lack of law, not because it was “nasty”
and “brutish.” Locke believed that our minds and personalities are like “blank slates”
when we arrive in this world; what we become and how we behave is entirely the
result of our past experiences interacting with our present circumstances. Locke’s
(1952) conception of the state of nature, human nature, and the necessity of law is
captured in the following passage:
Though man in that state [of nature] has an uncontrollable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself,
or so much as any creature in his possession, but where some nobler use
than its bare preservation calls for. The state of nature has a law of nature
to govern it, which obliges every one; and reason, which is that law, teaches
all mankind who will but consult it that, being all equal and independent,
no one ought to harm another in his life, health, liberty, or possessions;
for men being all the workmanship of one omnipotent and infinitely wise
Maker—all the servants of one sovereign master, sent into the world by
his order, and about his business. (p. 5)
Contrary to Hobbes, Locke postulated that this state of nature had natural laws
based on moral obligations that governed conduct and logically preceded an
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established political system. This led Locke to
one of his most important conclusions regarding the state of nature and the formation of a
government. The central question of his Second
Treatise is “Why would men, living in a state of
nature with harmonious relationships form
a political system to govern them?”
Men being, as has been said, by nature
all free, equal, and independent, no
one can be put out of this estate and
subjected to the political power of
another without his own consent. The
only way whereby any one divests
himself of his natural liberty and puts
on the bonds of civil society is by
agreeing with other men to join and
unite into a community for their comJohn Locke
fortable, safe, and peaceable living one
amongst another, in a secure enjoyment
of their properties and a greater security against any that are not of it. This
any number of men may do, because it injures not the freedom of the
rest; they are left as they were in the liberty of the state of nature. (Locke,
1952, p. 54)
For Locke, human beings enjoyed freedom and independence in the prepolitical
state of nature, and they do not have to surrender their liberty in order to live in a
political community, as Hobbes supposed. Like Hobbes, Locke assumed that individuals enter into a social contract with the government to be governed, but the government must protect individual freedoms, not curtail them in the name of security
and order. Furthermore, since the social contract is entered into freely, it can be
broken by the governed if the state does not maintain its part of the contract, that is,
if it acts despotically and arbitrarily. This principle became extremely important to
the American colonists, and later to the framers of the Constitution, who were trying
to deal legally with what they considered to be the oppressive laws, policies, and
decrees of the British Parliament. The influence of Locke on the writing of such
American authors of the Constitution and the Bill of Rights as Thomas Jefferson and
James Madison was great (Pojman, 1989).
John Rawls
The eminent American legal philosopher John Rawls (1921–2002) theorized broadly
about justice from a liberal position without being explicit about natural law. However, he did allude to it when he compared law to a scientific theory: “A theory
however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust” (1999, p. 3). Laws and institutions must
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Law, Justice, and Society: A Sociolegal Introduction
thus be evaluated according to the principles of justice, as scientific theories are
judged by truth. Of course both truth and justice are intangible and open to subjective interpretation.
What is justice for Rawls? Just like the social contract theorists we have discussed,
he found it necessary to propose a time in history in which humans did not live in
organized political societies. Rawls shapes his theory of justice with the use of a
thought experiment conjuring up a hypothetical situation he called the original position. In Rawls’s state of nature, individuals were neither brutal beasts nor noble
savages but were equal, rational, and self-interested with “a capacity for a sense of
justice and for a conception of the good” (Rawls, 1996, p. 19). He wanted to go beyond
thinkers like Hobbes and Locke to describe in some detail the nature of the contract
in terms of the kind of society the contract would specify. In elucidating the terms of
the contract, Rawls strongly favored equality over meritocracy without belittling the
latter. He envisioned a just society as one that arranged social institutions so that
even the least advantaged members of society would reap fair benefits (without spelling out exactly what “fair” means in this context) and in which all social positions
would be open to all people under conditions of equal opportunity.
Rawls was uneasy with the idea of equal opportunity as a nondiscriminatory
process because, as he points out, some individuals have greater natural talents than
others, and, according to him, that is unfair. He asserted that we have done nothing
to earn our natural talents, and thus we are not fairly entitled to all the benefits that
those talents could bring us. Here he reveals his preference for equality of outcome
over equality of opportunity. Rawls was aware that in coming together to write this
hypothetical social contract, rational self-interested individuals will try to do so in
such a fashion as to privilege themselves and their descendants.
How might it be possible to prevent them from doing this? Rawls asks which
principles of justice would rational and self-interested individuals choose to regulate social institutions if they had to choose behind a veil of ignorance. By the veil
of ignorance, Rawls means that in determining the nature of their society, individuals would not know if they were going to keep any of the ascribed roles (race,
class, gender) or achieved roles (pilot, lawyer, street sweeper) they now have or
even their unique talents (intelligence, strength, conscientiousness). In other words,
what kind of society would people endeavor to make in complete ignorance of their
future place in it? Rawls argues that they would choose exactly the same liberties
and opportunities for everyone, because each of them would be that “everyone.”
They would choose a society in which the most disadvantaged would be afforded
special help and opportunities because they just might be one of the disadvantaged. We expand on Rawls’s ideas of justice and equality when we debate the
concept of “social justice” in chapter 11.
SOCIOLOGICAL PERSPECTIVES OF LAW
The law is one of the six social institutions (the others are the family, education, religion, the economy, and the polity). All institutions make rules regulating conduct
within them, but in modern democratic and secular states, only the rules contained
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Max Weber
17
Émile Durkheim
Karl Marx
in the law enjoy the enforcement power of the state. In many ways, law serves the
purposes of the other institutions, such as regulating what constitutes a legal marriage, defining what is permissible in schools, defining the relationship between church
and state, making sure contracts are adhered to, and determining voter eligibility.
Because the law serves these purposes, sociologists specializing in the study of these
other institutions should have an understanding of the law. Sociologists also recognize
that law is written by humans who bring ideological biases and personal baggage
with them to the task and thus recognize that laws should be critically analyzed.
Early sociological luminaries such as Karl Marx, Émile Durkheim, and Max
Weber were steeped in law and “regarded the sociology of law as an integral part of
social theory” (Schluchter, 2002, p. 257). They all wrote at times when other social
institutions appeared to be radically changing, and they sought to understand why.
All three saw law as a method of redefining relationships between persons and institutions. But, according to their ideological leanings, they viewed law as either greasing the squeaky wheels of change to make the passage quieter for everyone or as a
weapon to maintain the power and privilege of the few. These early social thinkers
saw law as both a product and a producer of social change and as a response to, and
sometimes a cause of, social unrest. In fact, nineteenth-century sociology was so immersed in the law that Donald Kelly (1990) has characterized modern sociology as
“the ghost of jurisprudence past” (p. 275).
Max Weber
Few scholars have had greater influence on contemporary legal thinking than
German sociologist and lawyer Max Weber (1864–1920). In his most famous work,
Economy and Society (1905/1978), Weber argued that the law was different from other
kinds of rule-following behavior in three fundamental ways. First, regardless of
whether or not persons want to and habitually do or do not obey the law, they face
external pressures to do so in the form of actions and threats. Second, these external
pressures involve the threat of coercion and force. Third, these threats are carried out
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Law, Justice, and Society: A Sociolegal Introduction
by agents of the state charged with that specific duty. Nowhere in Weber’s writings
do we see allusions to natural law by which unjust laws may be invalidated.
Weber’s major interest was in the increasing rationalization of the world. He
wanted to explain how the world had changed from a hierarchical world of lords
and peasants, overwhelmingly concerned with the afterlife, to a world of technical
progress and capitalism firmly planted in this life (Collins & Makowsky, 1993). The
progress and expansion he saw around him was possible only if the people responsible for it could plan ahead secure in the knowledge that if all citizens followed
certain binding rules, things would happen in a relatively predictable fashion. Without such predictability, economic progress and expansion cannot happen, and the
economy is destined to remain at the level of barter. Predictability and progress can
only occur under a binding code of conduct rationally derived from the minds of
individuals schooled in legal and administrative theory and practice and enforced
by a cadre of honest and professional state agents. As Robert Gordon (2012) sees it:
The rule of law then came to be seen as crucial to modernization and the
building of viable capitalist societies. The difference between dynamism
and stagnation, prosperity and poverty boiled down to a few simple
variables—legal variables regulating a free and competitive market. (p. 211)
Weber was very interested in how authorities in various cultures make decisions
when confronted with issues of contention and how the decision-making process
that was employed accelerated or retarded modernization (rationalization) in those
cultures. Weber is perhaps best known in legal circles for his fourfold typology of
legal decision-making. As expected, the two fundamentals of Weber’s typology are
the rationality or irrationality of legal procedure. Rational procedures rely on logic;
nonrational procedures rest on mysticism, faith, or superstitions. Rational or irrational procedures may be either formal or substantive. Formality refers to decision-making
on the basis of established and inflexible rules and implies the independence of the
legal system from other social institutions. Substantive decision-making takes the
substance of individual cases into consideration rather than relying on general legal
principles (Turkel, 1996). Next the four methods of legal decision-making derived
from these elements are described in more detail.
1. Substantive irrationality: This method is the least rational of the four types.
It is based on case-by-case political, religious, or emotional reactions on the
part of a nonlegally trained person acting without a set of legal principles.
The biblical story of King Solomon who was asked to solve the dilemma of
two women claiming maternity and possession of the same infant is an example of substantive rationality. Solomon ordered the baby to be sliced into
two and divided between the women. One woman agreed to this solution,
while the other begged Solomon to give the infant to her rival. Solomon reasoned that the second woman must be the true mother and that the first
woman could not possibly be and made his decision in favor of the second
woman. Because Solomon’s decision was shorn of any legal rules, it was irrational; and because it was decided on a case-by-case basis, it was substantive. However, the decision was the essence of justice and wisdom.
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Table 1.1 Summary Table of Max Weber’s Decision-Making Typology
Irrationality
Rationality
Substantive
Decisions made subjectively by
nonlegally trained individuals on
a case-by-case basis.
Decisions made on a case-by-case basis guided
by logically consistent principles (bureaucratic
rules, religion, ideology) other than law.
Formal
Decisions based on formal rules
that are not based on logic
(superstition, magic, ordeals, oathswearing, etc.).
Decisions based on formal logical rules and
principles made by legally trained persons
bound by those rules but with a high degree of
independence.
2. Formal irrationality: This method is based on such concepts as religious
dogma, magic, oath-swearing, and trial by combat or ordeal. There are certain
formal rules to be followed, but they are not based on reason or logic. The
process of oath-swearing (discussed in chapter 14), used to settle cases in
some Islamic countries, is an example of formal irrationality.
3. Substantive rationality: This method is guided by a set of internally consistent
general principles other than law. Examples of this type would be decisionmaking applied on a case-by-case basis according to the logic of some religious,
ideological, or bureaucratic set of rules. The principles that are seen in the
Code of Hammurabi indicate that substantive rationality was the method of
legal decision-making used. Much of American administrative law is of this
type when dealing with issues involving complex technological issues (see
chapter 7).
4. Formal rationality: This is the most rational and ideal of all four types. This
type combines a high degree of independence of legal institutions with a set
of general rules and procedures applicable to all. Those who make the decisions on these grounds are monitored by others trained in the law. All Western
legal systems fall into this category (Evan, 1990). Table 1.1 presents a summary
table of Max Weber’s decision-making typology.
Although Weber clearly favors Western formal rationality, none of the other
three methods are necessarily “wrong” or unjust; all methods must be evaluated in
the context of the culture in which they are being used. Weber was primarily concerned with identifying the kind of legal reasoning best suited to modern capitalism
and not necessarily passing judgment on these decision-making methods as functional or dysfunctional in the cultural contexts in which they were employed. As we
shall see in the next chapter, cases settled exclusively on the basis of formal rationality may sometimes be at odds with justice.
Émile Durkheim
French sociologist Émile Durkheim (1858–1917), a contemporary of Weber’s, was interested in the relationship between types of law and types of society. Durkheim’s
basic theme is that all societies exist on the basis of a common moral order, not on the
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Law, Justice, and Society: A Sociolegal Introduction
basis of rational self-interest as implied in the “social contract” theses of Hobbes or
Locke. In his famous book Division of Labor in Society (Durkheim, 1893/1960), he set
out to examine the effects of the division of labor on social solidarity. By social solidarity Durkheim meant the degree to which people feel an emotional sense of belonging
to their groups. The strength of social solidarity depends to a great extent on the kind
of economic system a society has and on the stage of its development. Durkheim divided societies into two types: the nonindustrial societies of earlier times, which
were characterized by what he called mechanical solidarity, and modern or industrial societies, characterized by organic solidarity.
In nonindustrial societies, social relations were based mostly on primary group
interactions (frequent face-to-face contact with the same people), which tended to
result in strong emotional bonds. There was only a simple and limited division of
labor in such societies; individual differences were minimized. Since people were
involved in a limited range of occupations, most looked at life in the same predictable
way. Social relations were personal and uncomplicated for the most part, with strong
behavioral norms leaving little leeway for deviant behavior. Mechanical solidarity
thus grows out of sameness—out of a commonality of experience—and produces a
very strong collective conscience or collective consciousness (in French they mean the
same thing; Collins & Makowsky, 1993).
With the onset of the Industrial Revolution and the factory system came a broad
division of labor, which resulted in a shift from mechanical to organic solidarity.
Durkheim chose the term organic to illustrate this type of solidarity because it was
consistent with his functionalist view of society as an organism consisting of interdependent parts. Organic solidarity is characterized by secondary relationships in
which people interact for brief periods to accomplish specific goals such as exchanging services (workers in factories, students in schools, shoppers in stores, repairmen
in homes, etc.). The collective consciousness is weakened because of this basically
unemotional pattern of temporary and goal-directed interaction. Additionally, because of occupational specialization, people began to conceive of themselves less in
terms of the groups to which they belong and more as individuals. Organic solidarity
thus grows out of differences and a sense of social interdependence rather than from
shared experiences and a common identity.
With changes in patterns of interaction came changes in the form of social solidarity, which in turn generated changes in the law. The greater the complexity of a
society and the greater the shift from predominantly primary to secondary interaction, the more laws are required to regulate the different kinds of relationships
among citizens. Growth in social and economic complexity almost by definition requires growth in legal complexity. For instance, the efforts of the Chinese government to modernize and to develop a market economy has resulted in thousands of new
laws, and the number of lawyers in the country more than doubled (Turkel, 1996).
Different types of social solidarity generate changes in the criminal law also. In
preindustrial societies, the community exercised great power over the life of the individual. Because of the strong collective conscience, norm violations generated great
moral outrage, and punishments were extremely harsh. Durkheim called this pattern of response to violations of the collective conscience retributive or repressive justice
(Durkheim was too Eurocentric here; many preliterate cultures stressed arbitration
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21
and reconciliation over harsh punishments). Punishments, according to Durkheim,
functioned to reaffirm the righteousness of the moral norms that had been violated.
As the collective conscience became weaker under the increased division of labor in
industrial societies, so did the strength of collective moral outrage. The lessening of
moral outrage led to more tolerant attitudes toward minor rule breakers and to a
more humanitarian form of justice that was restitutive rather than retributive. The old
notions of retributive justice are still in evidence in some Islamic countries that continue to lop off the hands of thieves, stone adulterers to death, and apply the lash to
users of alcohol (Fairchild & Dammer, 2001).
TWO OPPOSING PERSPECTIVES:
CONSENSUS AND CONFLICT
Sociologists who study the law as a social institution and its function as a social
control mechanism tend to view it in terms of one of two broad perspectives. Which
perspective a scholar favors tends to depend on his or her more fundamental perspective on society. Some scholars view society as basically good, just, and providing equal opportunity for all individuals: This is the consensus view of society.
Others view society as basically unjust, unequal, and discriminatory: This is the
conflict view of society. Consensus theorists emphasize how society is structured
to maintain its stability and view it as an integrated network of institutions (the
family, church, school, economy, government) that function to maintain social
order and the system as a whole. Social stability is also achieved in this view
through cooperation, shared values, and the cohesion and solidarity that people
feel by being part of a shared culture. Consensus theorists are aware that conflicts
often arise in social life, but they stress that such conflicts are temporary and can
be and are solved within the framework of shared fundamental values as exemplified by a neutral legal system.
Conflict theorists consider society to be composed of individuals and groups
with sharply different interests and characterized by conflict and dissention. People
and groups everywhere, they maintain, seek to maximize their interests. Since resources are limited, conflict between different individuals and groups is inevitable
and continuous. The stability and order that consensus theorists see is only temporary and is maintained by coercion rather than consensus, that is, the ability of more
powerful people and groups to impose their will upon the less powerful.
Which view is correct? The simple answer is that it is impossible to say without
specifying what society we are talking about. All societies are characterized by both
consensus and conflict; it is almost impossible to imagine any society in which they
are absent. Max Weber recognized the dual nature of society when he defined law in
a manner that encompasses both consensus and coercion: “Laws are ‘consensually
valid in a group’ and are ‘guaranteed through a coercive apparatus’” (Turkel, 1996,
p. 8). We have to remember that these two competing models are examples of what
sociologists call ideal types. Ideal types are abstract conceptual tools that accentuate,
purely for analytical purposes, the phenomenon being studied; they lay no claims to
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Law, Justice, and Society: A Sociolegal Introduction
mirror the day-to-day reality of any concrete example of that phenomenon. Let us
examine law in the context of these two ideal-type models of society.
The Consensus Perspective
All of the legal theorists we have encountered thus far have been proponents of the
consensus perspective. This perspective views law as basically a neutral framework
for patching up conflicts between individuals and groups who primarily share the
same set of fundamental values. Law is viewed in a manner analogous to the immune
system of the body in that it identifies and neutralizes potential dangers to the social
body before they can do too much damage. Thus law is a just and necessary mechanism for controlling behavior detrimental to peace, order, predictability, and stability
and for maintaining social integration. Specific legal codes are assumed to express
compromises between various interest groups regarding issues that have been contentious in the past, not to codify the victories of some groups over others. Law is also
seen as reflecting the community’s deeply held values and as defining the rights and
responsibilities of all those within it, and it is considered a legitimate expression of
morality and custom. If coercion is sometimes needed to bolster conscience, it is because the individual, not the law, is flawed. The law is obeyed by the vast majority of
people not out of fear but out of respect, and it is willingly supported by all good
people.
Perhaps the main reason we have not encountered any theorist with a conflict
view of the law is that these theorists were all members of privileged classes,
which naturally endears the status quo to them. Except for Aristotle’s brief note of
concern that legislators should guard against laws favoring their own class, any
hint in the works of these writers that the law could unfairly serve the needs of
the elite comes percolating from below the surface. We see this in Thrasymacus,
Plato’s antagonist in the dialogue on justice contained in The Republic (1960, book 1).
Thrasymacus argues that the law is merely the legalizing of the interests of the
stronger. For the conflict perspective to be given full voice, it had to wait for writers
arising from the less privileged classes, which could only come after education became
more widespread.
The Conflict Perspective
Underlying the conflict perspective of the law is the view that law functions to preserve the power and privilege of the most exploitive and duplicitous, not to protect
the weak and helpless. As we have seen, although thinking of social processes in
terms of conflict between rival factions (usually between social classes) goes back as
far as Plato, the more formal treatment of conflict as a concept traces its origin to the
thought of the nineteenth-century German philosopher Karl Marx. Marxist legal
scholars agree that law exists to settle conflicts and restore social peace but insist that
conflicts are always settled in favor of the ruling class in any society, even if it may
sometimes look like other segments of society also benefit (e.g., a general tax cut in
which the wealthy gain millions while the working person gains a dollar or two
every paycheck). The basic proposition of the conflict perspective was set down by
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Marx and Engels (1888/1972) in The German Ideology: “The ideas of the ruling class are
in every epoch the ruling ideas; i.e., the class, which is the ruling material force of
society, is at the same time its ruling intellectual force” (p. 136).
For Marx and Engels, society is divided into two classes: the rulers and the ruled.
The ruling class—by which Marx and Engels meant the owners of the means of production, that is, factory owners and entrepreneurs—control the “ruling material
force of society.” Because these individuals control the means of production, they
are able to buy politicians, the media, the church, and all other social institutions that
mold social values and attitudes and thus law. The relationship between power and
lawmaking has been described (perhaps cynically) as the “Golden Rule,” which
posits that “Those with the gold make the rules.”
Marx and Engels explain why “the exploited” do not recognize their exploitation
with reference to the idea of false consciousness, by which they mean that the working classes have accepted an ideological worldview that is contrary to their best interests. Workers have been duped into accepting the legitimacy of the law by the ruling
classes and are not aware that the law does not serve them. They blindly and docilely
obey the law, believing that they are behaving morally by doing so. The ruling class
is able to generate the false consciousness of the workers by virtue of its control over
key institutions such as education, religion, the media, and, of course, the law itself.
These institutions define what is right and what is wrong, and they control the flow
of information so that it conforms to the worldview of the ruling class.
A school of legal thought premised on Marxist/conflict views is critical legal
studies (CLS) or critical legal theory. CLS emerged in law schools during the tumultuous years of the late 1960s and early 1970s in law schools that challenged the status
quo and rejected much of positive and natural law. This school claims that law is
politics by other means in the sense that it is a way the “privileged classes” maintain
their favored place in society and a way to “legitimately” keep the working class
down. Legal rules are not the codification of cultural custom as positivists claim but
rather a series of statutes legitimizing exploitation and designed to maximize economic growth and efficiency, which is a bad thing for CLS theorists because they
believe it is done to the detriment of the workers. CLS theorists look almost exclusively at what they consider defects in the law and ask “how law legitimates power
in both senses of the word: how it shapes, channels and restrains power and how it
mystifies, disguises, and apologizes for it” (Balkin, 2008, p. 1).
CLS is a sort of radical left-wing legal realism (a system of thought we meet in the
next chapter) maintaining that judges do not simply apply logic to the law as written
but rather seek to impose rulings that support and reinforce the status quo by looking for provisions in the law that will support their interpretation. CLS has more or
less vacated the legal academy with the…
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