Sociology of Law

"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?" - Emile Durkheim.
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"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 deviance." -Arrigo

In 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," as a means to understanding injustices and how we might correct them to produce a better life for all. Sometimes that may mean tinkering with the system as it is, and sometimes that may mean 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 norm congruency.

The Center for the Study of Law and Society - http://www.law.berkeley.edu/institutes/csls/people-bio-ledelman.html

International Institute for the Sociology of Law.- http://www.iisj.es/websiteen.html

Sociology, Society, Law - Mathieu Deflem
www.socoflaw.net

The tension in modern law between facts and norms. (Habermas) - http://www.csudh.edu/dearhabermas/lwhndbk01.htm

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 pluralism.

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 the society?

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?

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 strike 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.

SOCY 540 - Syllabus - University of South Carolina
SOCIOLOGY OF LAW - Spring 2004
Instructor: Mathieu Deflem, Ph.D. - http://www.cla.sc.edu/socy/faculty/deflem/index.html

This course is designed for upper-level undergraduates majoring in sociology and is also open to graduate and law-school students. It reviews the most important developments, both theoretical and empirical, in the sociology of law. This is not a seminar, but a lecture course. The goal of the lectures is to understand some of the specific characteristics of the manner in which sociologists study law as well as to explain some of the patterns and dynamics of law and its components in a variety of social settings.

Successive sections of this course will focus on: classical theoretical contributions to the sociology of law; selected chapters in modern sociology of law; and a useful selection of empirical themes of law and law-related processes and structures to which the sociological theories will be applied. These empirical topics include, but are not necessarily limited to: law and economy; law and politics; law and culture; social structure and law; legality and legitimacy; the legal profession; law and inequality; and globalization and law. Many of the required readings for this course are primary sources (written by sociologists and/or actual examples of sociological research) to allow for an in-depth study of selected sociological perspectives.

Prerequisites:
The readings for this course are relatively extensive and of the highest academic and sociological rigor. Students wishing to take this course should be aware this is not a course in law, but in the sociology of law. The approach is not based in social-science in general, but in sociology specifically. The lecture materials, also, are rooted in sociological theory. Participation in this class, therefore, requires considerable background knowledge in sociology, especially in sociological theory. A necessary prerequisite for this course is SOCY 300, or SOCY 507, or SCCC 331, or consent of the instructor.

Graduate and law-school students who wish to take this course must consult the instructor prior to enrolling in the course.

COURSE READINGS
There is one required textbook as well as a collection of required research articles taken from books and journals. Regardless of the manner in which these materials are discussed in class, they comprise all of the required readings for this class.
Turkel, Gerald. 1996. Law and Society: Critical Approaches. Boston: Allyn and Bacon.
Course Readings. Package of articles for sale at the copy store AND online readings (see complete list at end of syllabus)

OUTLINE
Introduction: Sociology, Society, and Law
Part I. Theoretical Foundations of the Sociology of Law

1) Karl Marx on Law and Capitalism
2) Max Weber on the Rationalization of Law
3) Emile Durkheim on Law and Social Solidarity
Part II. Sociological Themes of Law and Society
1) Law and Power: Perspectives of Democracy
2) Law and Market: Labor Regulation
3) Law and Culture: The Public and the Private
4) Law and Integration: The Legal Profession
Part III. Selected Problems in the Sociology of Law
1) Inequality and Law
2) Legality and Legitimacy
3) Globalization and Law

REQUIREMENTS FOR GRADUATE & LAW-SCHOOL STUDENTS

Graduate and law-school students have to complete all of the readings and exams that are specified for undergraduates. Moreover, there are supplementary readings and the following additional assignments: a mid-term paper and a final paper. Additional required readings and further specifications of the assignments for graduate and law-school students will be made available by the course instructor. Please email the instructor for further details.

READING LIST

TEXTBOOK
Turkel, Gerald. 1996. Law and Society: Critical Approaches. Boston: Allyn and Bacon.

ARTICLES

These articles and chapters are available in the course package, except the underlined articles which are available online. Some of the latter can only be accessed from University servers or by proxy (USC) in Netscape.

Trevino, Chapter 1, from The Sociology of Law.

Trevino, Chapter 4 on Marxian Perspectives, from The Sociology of Law.

Marx, Karl. 1846. First selection from The German Ideology: Part I: Feuerbach, Section B. The Illusion of the Epoch. Online from the Marxists.org Internet Archive. [only the first pages, up until the section Feuerbach: Philosophic, and Real, Liberation].

Marx, Karl. 1846. Second selection from The German Ideology: “The Relation of State and Law to Property.” Online from the Marxists.org Internet Archive. [only the section, The Relation of State and Law to Property].

Marx, Karl. 1869. “Report of the General Council on the Right of Inheritance.” Online from the Marxists.org Internet Archive.

Trevino, Chapter 5 on Weberian Perspectives, from The Sociology of Law.

Weber, Max (1922) 1954. “Basic Concepts of Sociology; The Formal Qualities of Modern Law.” Pp. 1-10, 301-321 in On Law in Economy and Society, ed. M. Rheinstein. New York: Simon and Schuster.

Trevino, Chapter 6 on Durkheimian Perspectives, from The Sociology of Law.

Durkheim, Emile. (1906) 1974. “The Determination of Moral Facts.” Pp. 35-62 in Sociology and Philosophy, translated by D.F. Pocock. New York: The Free Press.

Durkheim, Emile. (1901) 1996. “The Evolution of Punishment.” In Trevino, The Sociology of Law, pp. 275-286.

Henry, Stuart. (1985) 1995. “Community Justice, Capitalist Society, and Human Agency.” In Richard Abel, ed., The Law & Society Reader. New York: New York University Press.

O’Barr, William, and John M. Conley. (1988) 1995. “Lay Expectations of the Civil Justice System.” In R. Abel, ed., The Law & Society Reader. New York University Press.

Alshuler, Albert W. (1979) 1995. “Plea Bargaining and Its History.” In Richard Abel, ed., The Law & Society Reader. New York: New York University Press.

Friedman, Lawrence M. (1991) 1995. “American Legal Culture: The Last Thirty-Five Years.” Pp. 271-278 in Law & Society, edited by Stewart Macaulay, et al. New York: W.W. Norton.

Sutton, John R., Frank Dobbin, John W. Meyer, and W. Richard Scott. 1994. “The Legalization of the Workplace.” American Journal of Sociology 99(4):944-971.

Marx, Gary T. 2001. “Censorship and Secrecy, Social and Legal Perspectives.” In International Encyclopedia of the Social and Behavioral Sciences.

Arnold, Bruce L. and John Hagan. 1992. "Careers of Misconduct: The Structure of Prosecuted Professional Deviance Among Lawyers." American Sociological Review 57(6):771-780.

Brown v. Board of Education 347 US 483 (1954).

Deflem, Mathieu. 1998. “The Boundaries of Abortion Law: Systems Theory from Parsons to Luhmann and Habermas.” Social Forces 76(3):775-818.

Deflem, Mathieu. 2002. “Technology and the Internationalization of Policing: A Comparative-Historical Perspective.” Justice Quarterly 19(3):453-475.

Deflem, Mathieu. 2003. “The Boundaries of International Cooperation: Problems and Prospects of U.S.-Mexican Policing.” In Corruption, Police, Security & Democracy, edited by Menachem Amir & Stanley Einstein. Office of International Criminal Justice.

Criminal `organisations' in Greece and public policy: from non-real to hyper-real?
Effi Lambropoulou - Department of Sociology, Panteion University of Social and Political Sciences, 136 Syngrou Ave., Athens 176 71, Greece
Available online 22 April 2003. - International Journal of the Sociology of Law.
http://www.sciencedirect.com/science/journal/01946595
http://dx.doi.org/10.1016/S0194-6595(03)00002-9
Abstract
The article gives an overview of the situation of criminal group activities in Greece, characterised as `organised' crime, during the last decade. It refers briefly to the political and socio-economical changes in its neighbouring Balkan countries, the subsequent movement of the populations and their impact on the country's crime rates, in the general context of the globalisation of crime. Furthermore, it describes the development of crime in the country. The study also refers to the main components of the public policy to confront these activities at a normative and practical level, as well as the impact they had on European and international commitments of Greece.
Article Outline
1. Introduction
2. The development of criminality in Greece and the expansion of illegal markets
3. Legislation and law enforcement
4. Concluding remarks
References

From refugees to infiltrators: constructing political crime in Israel in the 1950s
Alina Korn - Department of Criminology, Bar-Ilan University, Ramat Gan 52900, Israel
Available online 5 August 2003. - International Journal of the Sociology of Law.
http://www.sciencedirect.com/science/journal/01946595
http://dx.doi.org/10.1016/S0194-6595(03)00021-2
Article Outline
1. Introduction
2. Crime, law and politics
3. Political legislation
4. Statistical trends and patterns
5. Infiltration as a political crime
5.1. Political consciousness
5.2. Social reaction
6. Conclusion
References

Terrorism: Cloning The Enemy
Vincenzo Ruggiero - School of Social Science, Middlesex University, Queensway Enfield, Middlesex EN3 4SF, London, UK
Available online 5 August 2003. - International Journal of the Sociology of Law.
http://www.sciencedirect.com/science/journal/01946595
http://dx.doi.org/10.1016/S0194-6595(03)00022-4
Article Outline
1. Introduction
2. Epileptics and neophiles
3. Definitional relativism
4. Controversial characteristics
5. Plethoric causes
6. Relational dynamics
7. Animus belli
8. Conclusion
References

The Ecology Of Law
Arjen van Witteloostuijn
Durham Business School, University of Durham, Mill Hill Lane, Durham City DH1 3LB, UK
Available online 23 August 2003 - International Journal of the Sociology of Law.
http://www.sciencedirect.com/science/journal/01946595
http://dx.doi.org/10.1016/S0194-6595(03)00024-8
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.
Article Outline
1. The evolution of law
2. The ecological argument
3. The role of statute density-dependent processes
4. The role of statute-makers' demography
5. An empirical research agenda
6. An appraisal
References

The labour inspection of Belgium, the United Kingdom and Sweden in a comparative perspective
Philippe De Baets - Molenstraat 175, Eeklo 9900, Belgium
Available online 6 September 2003. - International Journal of the Sociology of Law.
http://www.sciencedirect.com/science/journal/01946595
http://dx.doi.org/10.1016/S0194-6595(03)00023-6
Abstract
This limited comparative study on labour inspection in Belgium, the United Kingdom and Sweden is dominated by a criminological approach. This is not an obvious point of view. Labour inspectorates tend to avoid criminal law and the criminal justice system to resolve occupational health and safety problems. Enforcing occupational health and safety standards, however, should not be considered as a merely technical matter. The increasing international popularity of occupational health and safety management schemes at enterprise level coexists with the growing European awareness that labour inspectorates will have to come down hard on employers who breach legislation that protects workers. Quality of work has become a political priority again and it may affect future inspection efforts considerably. The final outcome remains unclear at the moment, but the functions of labour inspection have unmistakably been set in motion. Administrative authorities appear to play an important role in this, because they provide the necessary impetus with regard to steering. Much attention is paid to the link between the institutional framework on the one hand and law enforcement strategies on the other.
Article Outline
1. Introduction
2. A retrospect
3. A conceptualization of labour inspection
3.1. Securing the enforcement of legal provisions
4. OHS `back in business'
5. A comparison of the institutional framework
6. Diversion
7. Labour inspection and the criminal justice system
8. Strategies of law enforcement
9. Conclusions
References
Further Reading
Vitae
De Baets: Philippe De Baets (1971) has an academic degree in criminology and a degree in advanced studies in European criminology and criminal justice systems (Ghent University, Belgium). He has published several articles in the Flemish criminological journal PANOPTICON.

Sociology of Law - Journals

International Journal of the Sociology of Law
http://www.sciencedirect.com/science/journal/01946595