Sociology of Law
Sociology of Law, Journals, Sociology of Law Abstracts, Sociology of Law Bibliography
"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?" - David
"Equality before the law does not
describe the actual operation of any known legal system, past or present." - Donald
"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 deviance (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.
Nlklas 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.
The Center for the Study of Law and Society.
International Institute for the Sociology of Law.
The tension in modern law between facts and norms.
Jurgen Habermas refers
to a duality in modern law. That is the duality of tension between facts and norms.
The facts: 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: 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.
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
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?
Anthony Giddens: "Once we admit the principle of
the critical evaluation of beliefs, how can anything be exempt?" (op. cit.. p.245)
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.
This law is enacted and enforced. Facticity. But there is tension with the justice and
legitimacy. First, there is much debate over whether prior strikes were violent, over what
should and should not count as a prior strike. Who shall have discretion? The district
attorney? or the judge?
Each must enforce the law.
Each is sworn to seek truth and justice.
One is the trier of fact. (The judge.)
One is an advocate arguing a given side. (The D.A.)
The incidence of crime may carry weight.
In a time of great violence and social concern discretion is likely to be weighted toward
the D.A., the prosecutor.
In a time of relative peace and concern for pluralism, situatedness, discretion is likely
to be weighted toward the judge, for a more neutral hearing.
Traditional knowledge is not just personal or
spiritual.. Traditional knowledge also has economic value. Certain communities depend on
their traditional knowledge for survival. Therefore traditional knowledge needs to be
Communities are now looking up to intellectual
property rights laws to preserve, protect, and promote their traditional knowledge.
Certain communities have also sought to make equitable use of their traditional knowledge.
Currently, only a few nations offer explicit sui generis protection for traditional