law and society Flashcards
WHAT IS LAW?
- define the term law
- what is law to our society ?
- what is law important for ?
- what does law affect ? how are its effect?
The term ‘law’ refers to rules and regulations, but also refers to social institutions of which rules and regulations are an important part.
Law is an intrinsic part of our society.
Law is important for society and for individuals.
Law affects our way of life and our behavior (i.e. driving a car).
Nothing has a greater impact on our lives than laws.
The social functions of law:
Law as a means of social control
Law as a means of dispute settlement
Law as a means of social change
- Law as a means of social controlIn the absence of law:
- society would be chaotic;
- there would be more crime; and
- no resolutions for problems. - Law as a means of dispute settlementIn the absence of law, people would resort to force and other similar means in an attempt to settle their disputes.
- Law as a means of social changeLaw is considered as a key tool for bringing about changes in individual behaviors.
The social functions of law (continued):
- Law as a mean of preserving civil rights and civil liberties
- the rule of law
- Law as an expression of society’ s moral values
- Law as a mean of preserving civil rights and civil libertiesThe introduction of the Lebanese Constitution, the Bill of Rights, the Declaration of Human Rights, etc.
- The rule of lawThe rule of law means that no person is above the law, no matter how wealthy or powerful he/she is (i.e. President Nixon and the Watergate controversy).
- Law as an expression of society’ s moral valuesLaw reflects a social consensus on appropriate and inappropriate behaviors and on the structure and functioning of society’s basic social institutions.
The dysfunctions of law:
- Laws create and perpetuate inequality
- Laws reflect the moral values of influential social groups.
- Laws in some instances complicate matters , rather than ease them
- Laws create and perpetuate inequality
Some groups benefit more than others from the written laws
- Laws reflect the moral values of influential social groupsAuthority figures in power are the ones who legislate laws (i.e. the banning of alcohol in the USA was a result of efforts taken by pressure groups)
- Laws in some instances complicate matters , rather than ease themIn addition to laws, people may use alternative measures such as arbitration, mediation, conciliation, etc.
law is logic
would your race gender background etc affect the conclusion taken by law ?
If A>B and B>C then A…C
Nothing can affect the correct conclusion to be drawn from the premises because this conclusion is logical.
Your gender will not affect the solution.
Your race will not affect the solution.
Logic is just that and your diverse social backgrounds are independent of any conclusion that follows logically from a set of premises.
- Law in the traditional view
is law affected by society? - The social science view
Law in the traditional view is considered to be pure logic.
In other words law is not affected by society.
The social science view of law considers law as a social institution. This means that law is seen as a set of rules or a set of established procedures for the creation, implementation, and enforcement of these rules.
Law is firmly embedded in society.
Law has a reciprocal relationship with society.
Social backgrounds often matter for law and, in turn, law often matters for important aspects of our lives.
Law has a social and moral impact.
what was law based on ?
The following factors had the greatest impact in determining the rules by which men should be governed: (5)
The development of the law has not been based upon logical argument (syllogism); it has been based upon experience.
The following factors had the greatest impact in determining the rules by which men should be governed:
- the felt necessities of the time
- the prevalent moral and political theories
- institutions of public policy
- avowed or unconscious
- the prejudices which judges share with their fellow men
The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics (Oliver Wendell Holmes Jr., 1938, 1881: 1).
Assumptions in the study of law and society: (4)
- The legal system is not autonomousSocial phenomena such as culture, politics, and social norms affect the functioning of the law.
- Laws and legal decisions have a potential impact on one or more aspects of society.
- Major changes in society often bring about changes in law.
- Law, whether considered as rules or as legal system, reflects the type of society in which it is found.
Law and Justice:
Is every legal rule just or even fair?
If a rule is just or fair, does that make it right?
- In order to understand the field of law and society, we should appreciate two related aspects:
Law and Justice:
Justice means moral rightness , fairness.
Legal functionaries find it necessary to make ethical choices regarding legal matters.
These decisions are hard to make and they shape the legal system and therefore have an impact upon the society.
In the law world, there is always an alternative conclusion that can be reached.
In order to understand the field of law and society, we should appreciate two related aspects:
- The ethical choices that legal actors make regarding questions of justice.
- The ways that sometimes these choices conflict with the logical thinking that is thought to guide legal decision-making.
Definition of law:
what is law ?
what does it establish?
what about traditional societies?
what do we call law today ?
There is no agreement about a single definition of law.
Usually, laws refer to a set of rules and regulations, and to the social institutions that create, implement, and enforce these rules and regulations.
To understand law, we should distinguish it from custom:
Laws are official rules passed, implemented, and enforced by governmental and non-governmental groups and organizations (official and non-official, formal and informal).
Customs are unwritten norms that are enforced only informally by family and friends.
law establishes the norms under which a society is governed.
Traditional societies had their own types of laws even if the substance and operation of these laws differed in many respects from law in modern societies.
Today, what we call law really depends upon why we choose to call law.
Selected definitions of law:
1. Law is the command of the sovereign
2. Law is governmental social control
3. Law is the maintenance or establishment of social order
- Law is the command of the sovereign
The limits of this perspective are:
- It restrains law only to what is sovereign and disregards the ruling of the judges, the rules of the administrative or regulatory agencies, etc.
- Sovereigns can never be subject to the law itself.
- The commands of the sovereigns can be unjust or harmful.
- Law is governmental social controlThe limits of this perspective are:
- It is limited by the fact that governmental social control can be unjust or harmful. - Law is the maintenance or establishment of social orderThe limits of this perspective are:
- It neglects any function other than the social order function.
- It does not characterize the party that uses the force
- An order will be called law if it is externally guaranteed by the probability that coercion to bring about conformity or avenge violation will be applied by a staff of people holding themselves specially ready for that purpose. This restricts law to modern societies because of the use of the term ‘staff’.
a rule has the status of a law if: (3)
- Pressure to comply with the rule is external to the individual.
- The pressure involves coercion and force, especially physical force.
- The party that applies such force is socially authorized to do so.
- In contrast, customs are obeyed because individuals want to abide by them or because they fear informal social control such as disapproval or ridicule from family and friends if they do not abide by them.
Why do we obey the law?
1- We are afraid of physical force.
2- We feel obliged to obey simply because it is the law.
3- We are concerned with peer pressure or other informal sanctions.
3- Certain illegal behaviors might harm us even if we do not get arrested.
4- It is a habit to obey the law.
The essence of law is legality or the rule of law:
what is legality?
A rule or a command is not a law unless it satisfies the following criteria:
Legality is one of the cornerstones of democracy.
Therefore no authority is above the law.
- Rules must be general
- Rules must be generally known
- Rules must not be retroactive
- Rules must be reasonably clear
- Rules must not be contradictory
- Rules must not require the impossible
- Rules should be relatively stable through time
is it hard to define law ? from a social view
It is hard to define the law from a social view.
Our definition is affected by the concept that we adopt in order to approach the issue.
