It has been said that respect for the law, in a democracy, has derived from the fact that the law expressed the will of the citizens. But how could this hold good for the minority groupy? - David Emile Durkheim. "Equality before the law does not describe the actual operation of any known legal system, past or present." - Donald Black.
The notion of social justice per se will not be fixed or static or certain; rather, it will be a more dynamic expression of events and actors subject to the social, economic, and political forces that shape ideas and issues pertaining to law, crime, and deviant behavior. - Arrigo.
Studying the legal system and its ramifications, we are faced with the need to look at the theory and policy which support the present system of law, but also to "talk and think about how things could be," to understanding injustices and how we might correct them to produce a better life for all. That may mean tinkering with the system as it is, and the need for fundamental change to the social order.
Niklas Luhmann's sociology of law was a description of the emergence of legal structures as the development of congruent reactions to the disappointment of norm expectations. In a society of Individuals faced with an excess of possibilities, the criteria for the selection of such laws was the enhancement of norms congruency.
Jurgen Habermas refers to a duality in modern law. That is the duality of tension between facts and norms. The facts Habermas refers to are the positive (enacted) law that is reliably enforced. He also calls this "facticity," the social facts defining the "free choice" within which the individual may determine his actions. Law as specifically enacted and enforced is empirical. What the law says can be related to empirical facts. The norms Habermas refers to are our expectations about the validity and legitimacy of the law. Validity affects our expectations of fairness, justice, right.
Habermas speaks of legitimacy, following Kant, who based
such legitimacy on morality. Habermas criticizes Kant's dependence on morality because of
the pluralism of the modern democratic society. Habermas
claims there is no more overriding morality, values, sacred
belief to provide social integration, because there
are other moralities, values, sacred beliefs in the challenge of
The tension: Between the facticity of positive and enforced laws and the validity or legitimacy of that system of law, there is always tension. The law on which Habermas depends to create social integration in modern society must be law that we obey because we believe it right and just for all to obey. The tension is between the claims of legitimacy and the facts of the enacted and enforced law.
Habermas' mechanism for resolving the tension, and thus providing legitimacy and social
integration, is the commitment of all individuals in good faith to the discourse of the community as a whole. Habermas believes that rational argument of
citizens can replace the morality lost to pluralism. We must note, however, that Habermas
uses very specific definitions for these terms. He doesn't mean an ordinary committee
debate over coming to terms on norms. He means the transcendent language of a community
willing to negotiate validity claims and committed to abiding by the community consensus.
The criticism: Once we begin to question the legitimacy of law, assuming that reason will ultimately suffice for us to decide, how do we draw the limits? If there are groups or situations for which the law does not produce just results, then do we lose legitimacy? Do we lose some of our social integration? And at what point does that become critical to the society?
One modern application: In California's recently enacted three strikes law we encounter the legitimacy issues faced by modern democracies. In this proposition, voted into the State Constitution by popular vote, there is a major penalty enhancement for violent felonies when the defendant has a prior felony conviction (a strike). For a third conviction, (that is, for a defendant with two prior strikes) the penalty is 25 years to life.
The ecology of law - Arjen van
Witteloostuijn, Durham Business School, University of Durham.
Abstract: This theoretical paper is a plea for grafting yet another branch onto the flourishing tree of what may be called the social sciences of law: an ecology of law. In a nutshell, ecology deals with the evolution of (populations of) physical and social entities, well-known examples being animals and organizations. In the current paper, the argument is that the application of ecology can further the understanding of the evolution of law. That is, the ecological apparatus offers a different lens for the study of the rise and fall of classes or populations of statutes. Of course, this apparatus must be adapted in order to fit with the idiosyncracies of the domain of law. This paper offers a first attempt to do precisely this. Particularly, the argument is that a merger of the ecology of rules with the demography of rule-makers is likely to produce a productive mixture for the development of an ecology of law.
Anachronism of the Moral Sentiments? Integrity, Post-Modernism, Justice - The relationship between postmodernism and justice. Apparent disjunction between post-modernists' moral and political intuitions on the one hand and their philosophical views and cultural leanings on the other. Crudely put, the essay asks what we can learn from the fact that someone who rejects the notion of "integrity" as either a psychological, moral or textual quality, nevertheless condemns the Dean or the Senator for having "no integrity," admires the display of principled consistency in public life or the interpretation of the Constitution, and would characterise the difference between, say, Nelson Mandela and Bill Clinton, as the difference between a principled ascetic who would endure jail or death for his beliefs and a pack of cut-out caricatures, reshuffled at every shift in public opinion, held together only by an expensive suit and a set of selfish appetites. - James Boyle.
Juror Sensitivity to the Cross-Race Effect
- Jordan Abshire
Department of Psychology, Louisiana State University, Baton Rouge, Brian H. Bornstein, Department of Psychology, University of Nebraska, Lincoln, Nebraska.
Abstract: Black and White mock jurors' sensitivity to the cross-race effect was investigated by varying the race of the eyewitness in a simulated murder trial of a Black defendant. Participants heard an audiotape of a trial after which they rendered a verdict and rated the credibility of the witnesses. White participants found the prosecution witnesses (including the eyewitness) more credible, and the defense witness less credible, than did Black participants; they were also more likely to find the defendant guilty. The Black eyewitness was perceived as more credible than was the White eyewitness, but eyewitness race had no effect on verdict. These results are consistent with the literature indicating that jurors of different races reach different verdicts, and also that jurors are relatively insensitive to factors that affect eyewitness testimony, such as the cross-race effect. Article ID: 471150 - Law and Human Behavior.
EXPENDABLE CHILDREN: DEFINING BELONGING IN A BROKEN WORLD - THERESA GLENNON - INTRODUCTION - The American Law Institute has tackled one of the most deeply contentious and emotional areas of law in a remarkably logical and moderate manner. Family dissolution, especially when it involves a lengthy relationship or children, shatters the dreams and disrupts every aspect of the lives of those involved. - law.duke.edu
THE MOUSE WHO WOULD RULE THE WORLD! HOW AMERICAN CRIMINAL JUSTICE REFLECTS THE THEMES OF DISNEYIZATION - Matthew B. Robinson - Appalachian State University - This paper specifies the relationships between the trend of Disneyization and the increasingly efficient, scientific, costly, and control-oriented systems of American criminal justice. Disneyization is the process by which the principles of the Disney theme parks are coming to dominate more and more sectors of American society as well as the rest of the world. It is related to the concurrent phenomenon of McDonaldization and Ebayization, which has been more widely written about and even applied to criminal justice. This paper discusses the trend of Disneyization and then illustrates how the main elements of Disneyization (theming, dedifferentiation of consumption, merchandising, and emotional labor) typify American criminal justice activity. Much of the paper is concerned with media coverage of crime and criminal justice, given the intimate relationship between it and criminal justice system processes.
EXOTIC DANCERS: GENDER DIFFERENCES IN SOCIETAL REACTION, SUBCULTURAL TIES, AND CONVENTIONAL SUPPORT - Old Dominion University - Department of Sociology and Criminal Justice - ABSTRACT - We explore the world of female and male exotic dancers. Utilizing Hirschis Bonding theory, we look at gender differences in societal reaction, subcultural ties, and conventional support among dancers in a large metropolitan area.
PRIME-TIME MURDER: PRESENTATIONS OF MURDER ON POPULAR TELEVISION JUSTICE PROGRAMS - Danielle M. Soulliere- University of Windsor - ABSTRACT - Entertainment television has long been fascinated with violence and murder. This paper examines presentations and explanations of murder in three popular prime-time television justice programs - NYPD Blue, Law and Order, and The Practice - and compares these mediated presentations with images presented by official statistics and established research findings. The findings suggest that murder is presented fairly accurately such that viewers should come away with a basic understanding of the nature and circumstances surrounding murder, although they are likely to be somewhat misled that violence is common. In addition, the explanations offered for the commission of murder are heavily individualistic, precluding an adequate sociological understanding of murder by ignoring important social factors.
The International Journal of the Sociology of Law is an interdisciplinary forum for high quality research and debate on social context and social implications of law, law-enforcement, and legal process. It welcomes contributions from all areas of socio-legal study, and particularly those which address comparative issues and questions of development, change, and reform in socio-legal processes.
Canadian Journal of Law & Society - Law & Society Association (US); Socio-Legal Studies Association (UK); Research Committee on the Sociology of Law of the ISA.
Injustice - Journal - A refereed international electronic journal that helps focus academic attention on the study of injustices around the world. The editors welcome essays devoted to understanding the nature of injustice, types of injustice, and the history, politics, and moral psychology of particular injustices, ranging from global to local events.
The Western Criminology Review (WCR) is a forum for the publication and discussion of theory, research, policy, and practice in the rapidly changing and interdisciplinary fields of crime and criminology and criminal justice.
Law and Human Behavior
Law and Human Behavior is a bimonthly academic journal published by the American Psychology–Law Society. Law and Human Behavior publishes original empirical papers, reviews, and meta-analyses on how the law, legal system, and legal process relate to human behavior, particularly legal psychology and forensic psychology.
Law and Critique - Law and Critique is not affiliated with any law school. Law and Critique is a triannual law journal closely involved with the critical legal studies community. Law and Critique takes a critical perspective on all aspects of legal theory, jurisprudence, and substantive law and covers the influences of a variety of schools of thought into legal scholarship, such as postmodernism, feminism, queer theory, critical race theory, literary approaches to law, psychoanalysis, law and the humanities, law and aesthetics, and post-colonialism.
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Turkel, Gerald. 1996. Law and Society: Critical Approaches. Boston: Allyn and Bacon.
Karl Marx. 1846. Second selection from The German Ideology: The Relation of State and Law to Property. Online from the Marxists.org Internet Archive.
Marx, Karl. 1869. Report of the General Council on the Right of Inheritance. Online from the Marxists.org Internet Archive.
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OBarr, William, and John M. Conley. (1988) 1995.
Lay Expectations of the Civil Justice System. In R. Abel, ed., The Law &
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Alshuler, Albert W. (1979) 1995. Plea Bargaining and Its History. In Richard Abel, ed., The Law & Society Reader. New York: NY University Press.
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