law midterm Flashcards
Law and Society
All societies have had systems of the law that vary in scope and complexity
Homogenous societies may rely on an informal legal system based on customs
larger societies systems become more complex and formal
Law and sociology
Similar themes and areas of inquiry
-values, morality, norms, interpersonal relations, social processes of society
Historically the two have been considered non-compatible disciplines
some difficulties with interactions of legal scholars and sociologists because of terminology, methodology, and professional culture
Law - defined
Not easily defined
-each discipline, area of distinction and scholar may provide a distinct definition
Max Webber argues that there are 3 basic features of law
1. External pressure to comply
2. Pressure is coercive
3. Individuals enforce law coercively under authority of state
Donald Black and styles of social control
Donald Black argues that four styles of social control are represented in law
Penal
–Policies, law, criminal code, legislation
Compensatory
–Sue people, torts,
Therapeutic
–Correcting, rehabilitating people
Conciliatory
Categories of law
Can be categorized as substantial or procedural
further distinction is made between public and private
more specifically civil law and criminal law
4 main law systems
Romano-germanic system
Common law system
socialist legal system
islamic system
Functions of law in society
3 most common factors
1. social control
2. dispute settlement
3. social change
Consensus perspective
Considers members of society as a stable, functional system, composed of diverse groups with conflicting interests
conflict perspective
Views society as disharmonious and composed of groups with conflicting values
role of sociologists in law
some consider their role as understanding social processes, describing and explaining social phenomena
others consider that their role is to be critical of a social system and its processes
lastly some argue for the notion of praxis- combining theory with practice
substantive law
laws made by city council
governs how members of society are supposed to behave
contrasted with procedural law
ex. laws on legalizing marijuana
procedural law
process that the criminal justice system must follow
ex. offender is arrested, everything that follows that like rights must be read, how evidence must be handled, everything that goes from the arrest all the way to the justice system
private law
anything that has to do with jones and smith- person a suing person b
private matters not public
civil laws
ex. divorce, you and your tenants
torts
a civil wrong that causes a claimant to suffer
criminal law
kings bench
investigating and prosecuting people who may have broken the law
common law
judge made laws
formed in England after the Norman conquest
basis for the us legal system
code
systematic collection of statutes
principle function of law
social control, dispute settlement, social change
consensus perspective
law is a neutral framework
maintains societal integration, society characterized by diverse groups with conflicting interests
public law
Deals with affair between government and individual
Criminal laws
Levels of court - Lowest to Highest
Provincial court- 50,000 or less for suing- judge only
King’s Bench- 50,000 or more for suing- judge only or judge and jury
Court of Appeal- 3 judges, you go here when you think an error has been made at the King’s bench
Federal court- immigration stuff
Supreme Court of Canada- 9 judges- chief justice and 8 other highly accomplished judges
Formal codified law
Emerges when the social structure becomes so complex that informal mechanisms of social control are no longer adequate
regulatory systems and methods of dispute can no longer be dependent on customs, social, religious or moral sanctions
primitive legal systems
typically found in hunting/gathering and simple agrarian societies
laws not written or codified
coexist with ancient norms
no well developed political system
laws enacted by elders, chiefs, councils, or kin leaders
transitional legal systems
advanced agrarian and early industrial society
economic, educational, and political subsystems are increasingly different from kinship relationships
legal subsystems become more complex
greater differentiation between law and tradition, custom and religion
baron de Montesquieu
influenced the framework for the constitution of the United States
active in polictics
against the absolutism of French monarchy
law is integral to peoples culture
Marx’s theory of law
every society rests an economic foundation
three principle assumptions of law
1. law is a product of revolving economic forces
2. law is a tool used by the ruling class to maintain power and control over the lower class
3. in a communist society law with wither away and disappear
Weber’s 3 types of administrations
developed a typology of legal systems which makes 2 fundamental distinctions of legal procedure and law:
substantive irrationality
formal irrationality
substantive rationality
formal rationality
khandi justice
empirical justice
rational justice
legal realism
judges are responsible for formulating law
judges exercise choice
judges make decisions based on their concept of justice
emile Durkheim
the division of labour in society
law is a measure of the type of solidarity in society
-mechanic
-organic
two types of laws
Donald black
law is a quantitative variable that can be measured by the frequency by which in a given social setting
-statutes are enacted
-regulations are issued
-complaints are made
5 measurable variables of social life
-stratification
-morphology
-culture
-organizations
-social control
adjudication
settles disputes and mediates claims
typically voluntary settlement of lower claims
administrative procedure act of 1946
private dispute
Absence of initial participation by public authorities
dispute of everyday life
legal and non-legal methods of dispute resolutions
public defendant dispute
government participants as defendant
challenge of authority of government agency
initiated by individuals or organizations
claims that government has not followed its own rules
American court system
dual hierarchies
state and federal courts
decentralized structure
includes trial courts, intermediate courts of appeal, and a court of last resort
federal court system
divided into 13 circuit courts of appeal directly above district courts
supreme court is last resort
4 groups of participants
litigants- individuals, organizations, govt officials who are trying to settle disagreements
lawyers- provide assistance to litigants navigating laws, rules and procedures of court system
judge- interpret rules and govern proceeding
juries- listen and decide the interpretation of events
function of legislative bodies
lawmaking, conflict management and integrative functions
includes legislators, executives and lobbyists
legislators
serves as the elected position of representative
executives
source of ideas and instruments of the law
lobbyists
contact person, campaign organizer and watchdog
administrative agencies
administer their relative legislation
investigation, rule making and adjudication
investigation
gathering of information
rule making
administrative lawmaking
adjudication
administrative agencies equivalent of a judicial trial
judges
apply the law
all attention
interpret the rules that govern proceedings
autonomous decision maker
discretionary power
jury
scientific jury selection
surveyed, questioned
if biased won’t be used
both sides are allowed to do this to jury
Oliver wendell holmes
Supreme Court justice
legal realism
-judges responsible for formulating law
-judges exercise choice
-judges make decisions based on their conception of justice
perspectives on law making
Rationalistic model- laws are created as rational means of protecting societal members from harm
functionalists view- laws are a special kind of deinstitutionalized custom
conflict theory- values dissensus , unequal access and cleavages of society as the basic determent of law
moral entrepreneur thesis- attributes key events to the presence of enterprising individuals and groups
legislative generation
6 stages
instigation and publicizing of a particular problem, information gathering, formulation of specific legislative remedy, interest aggregation or gathering support for the legislation, mobilization, modification
administrative adjudication
process to which specific, limited parties bring a case of controversy to the administrative agency for hearing
rule making vs adjudication
rule making
- single most important function
- defines the agencies mission
-formulation of policies and procedures
-3 types of rules
-procedural
-interpretive
-legislative
adjudication
-for settling disputes and mediating claims
-specific controversial cases
judicial lawmaking
increasing source of law in the u.s
3 primary types of judicial lawmaking
1. by precedent
2. by interpretation of statuses
3. by interpretation of constitution
influences on lawmaking
interest groups, public opinion and social sciences all influence lawmaking
social control
2 basic processes
- internalization of group norms
-control through external pressure
internalization of group norms
consequence of socialization
informal social control
folkways, mores, more effective in small groups
formal social control
-more complex
-higher division of labour
-competing subgroups with different mores and ideologies
-laws, regulations, codes
folkways
established norms of such common practice such as those that specify modes of dress, etiquette, and language
ex. covering mouth when sneezing, raising hand to speak
mores
societal norms associated with intense feelings of right and wrong and definite rules of conduct that simply must not be violated
victimless crimes
seen as morally repugnant
harm occurs primarily to the participating individuals
ex. drug addiction, gambling, prostitution
white collar crimes
crimes committed in connection with an occupation
administrative law and social control
accomplished through licensing, inspection and the threat of publicity
license
official permit to engage in a specified activity
inspection
allows for regular monitoring of activities
threat of publicity
effective against businesses and corporations in that negative publicity produces adverse consequences
