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Society and The Law

by Karen Hayden

Copyright © 2020 by The Rowman & Littlefield Publishing Group, Inc.

1 Introduction NO PART OF OUR LIVES IS UNTOUCHED BY LAW. Legal terms and legal language saturates our consciousness. Law is complex and contradictory. It provides the grounds for our personal security, equality, and the freedoms that we should take for granted. But law can also distort and complicate our lives. In his book Democracy in America ([1835] 1961), Alexis de Tocqueville (1805–1859), a French aristocrat who traveled through the United States to study a developing democracy said, “scarcely any question arises which does not become, sooner or later, a subject for judicial debate” ([1835] 1961:223). De Tocqueville observed as far back as the 1800s that U.S. society was more focused on legal debate than it’s European counterparts. Even de Tocqueville could not have predicted the extent to which law now occupies the American public’s consciousness; it is the subject of countless movies, television shows, and books. Today there are approximately 1,300,705 licensed lawyers working in the U.S. legal system (American Bar Association 2015). Television personalities including Nancy Grace, Greta Van Susteren, and Dan Abrams make their careers by talking endlessly about current legal cases on 24-hour television news stations. The law is an occupation and a preoccupation in our lives. In American society it is not uncommon to hear people say, “There ought to be a law!” in response to social problems, or any event that negatively affects people. In fact, “There Ought to be a Law!” now has its own acronym, TOBAL, making it almost as recognizable as NIMBY or “Not in My Back Yard.” For example, Senior Huffington Post writer Radley Balko has a website, The Agitator, which features a “There Oughtta Be a Law” column covering controversial legal issues including: drug, alcohol, and tobacco policies; civil liberties; and policing controversies. The U.S. is, for better or worse, a litigious society. This means its citizens are prone to engaging in lawsuits to settle even minor disputes. In response to particularly horrific events we often call on our legislators to enact new laws. However, as they rush to enact them, we tend to forget that these laws can have long-term, unforeseen effects. Sometimes, the reality is that a new law can create new problems, or aggravate the problem it was intended to solve. American sociologist Robert K. Merton (1910–2003) examined the latent and manifest functions of all social phenomena. Manifest functions are the intended, obvious functions of individual actions, social structures, and social policies. Latent functions are the unclear and unforeseen functions of these social phenomena. Merton also used the term dysfunction to refer to the unanticipated, negative consequences (or outcomes) that run counter to the intended purpose of individual actions, social structures, or social policies (Merton [1949] 1957:60–69). Using Merton’s analysis of the types of social functions, Sociologists and legal scholars can study the outcomes of legal changes on individuals, groups, and society.

MANIFEST FUNCTIONS OF LAW

Merton’s distinction between the manifest and latent functions has been used to analyze a range of social structures and social issues including interracial marriage, social stratification, religious and social rituals, fashion, bureaucracy, and propaganda. Merton defined manifest functions as the needs, interests, conscious, and explicit purposes of social activity. Specifically, manifest functions are “those objective consequences contributing to the adjustment of the [social] system which are intended and recognized by participants in the system” (Merton [1949] 1968:51). A manifest function is what is supposed to happen when a law is enacted. Ideally, the public recognizes a social problem and calls on lawmakers to solve it by making it illegal, or by placing restrictions on the problem, and the problem is solved. In reality, legal solutions to social problems are not often so straightforward. LATENT FUNCTIONS OF LAW Laws can also have unintended consequences, which Merton called latent functions. Latent functions are initially unrecognized and may only become evident after the law has been in effect for months, or even years. Even in the case of young driver restrictions, which as discussed above appear to be quite successful in meeting their intended purposes, there are unintended consequences. When the New Jersey decal law was passed critics suggested that it would make young drivers more vulnerable to predators. Others argued that the decal amounted to an invasion of privacy and challenged the law in the state’s Supreme Court. New Jersey’s Supreme Court decided that these potential, unintended consequences were not persuasive enough to outweigh the benefits of the law. The court upheld Kyleigh’s Law with a 6–0 decision (Spoto 2012). We need to consider the unintended functions of junior operator laws more generally. Some teenagers need to drive to get to their jobs, and their jobs contribute to the family economy. Therefore, poor and working-class teens with after-school jobs would be more negatively affected by a 90-day suspension of their driving privileges. This is just one of countless examples of laws, or legal changes, affecting people of lower socioeconomic class more directly and more negatively than people of the middle or upper classes. We will return to the topic of law and inequalities of race, class, gender, and power in Chapter 6: Law and Social Control, Chapter 10: Gender, Inequality, and Law, and Chapter 11: Race, Inequality, and Law. The latent, collateral functions are often unforeseen, yet Merton argued that the sociological study of latent functions is crucial for making new discoveries about the social world. He said, “There is some evidence that it is precisely at the point where the research attention of sociologists has shifted from the plane of manifest to the plane of latent functions that they have made their distinctive and major contributions” (Merton [1949] 1957:64). When recognizing and analyzing the unexpected outcomes of new laws, sociologists have contributed to our socio-legal

knowledge about both the good and the harm that legal changes can bring about. Let us, in Merton’s words, shift to the plane of latent functions to examine a legal and political hot potato: Residency restrictions for sex offenders.

DYSFUNCTIONS OF LAW Along with latent and manifest functions, Merton also recognized social dysfunctions. As with the case of residency restrictions, some of the latent or unintended consequences of laws can also prove dysfunctional. Merton defined dysfunctions as “any process that undermines the stability or survival of a social system” (Merton [1976] 1996:96). He further explains that “A social dysfunction is a specific inadequacy of a particular part of the system for meeting a particular functional requirement. Social disorganization can be thought of as resultant of various social dysfunctions” (Merton [1976] 1996:96). The transience and social disorganization that results from sex offender residency restrictions are both unintended and dysfunctional to the larger social order. When considering other dysfunctions of law, laws can become outdated and used for purposes beyond their initial intention. For instance, blue laws dating back to the colonial period still exist in many New England states. Blue laws typically prohibit activities on moral or religious grounds (Sheldon 2016). These archaic laws most often prohibit activities on Sundays, such as the purchase of alcoholic beverages because Sundays were Sabbaths—holy days—and thus set aside for worship in the Puritan faith practiced by the colonists. Puritans in Virginia and the New England colonies imported some of their Sabbatarian traditions to America. In fact, some historians suspect that the term “blue laws” is derived from the religious laws that were bound in blue books dating back to the 1600s (Roberts 2016). However, in Massachusetts blue laws reached well beyond Sunday prohibitions and restricted all manner of behavior including; spitting on the sidewalk, committing adultery, checking into a hotel under an assumed name, and frightening a pigeon away from someone’s front lawn. While these laws are clearly outdated, and in some cases unconstitutional, they have remained on the law books for over 300 years (LeBlanc 2008). Similarly, but perhaps more insidious, are laws on the books that were enacted for one purpose and then fall out of usage only to be resurrected for another function. Sociologist William J. Chambliss studied how laws that have fallen into a period of dormancy, or inactivity, can be resurrected for new forms of social control (Chambliss 1964). For example, in Massachusetts in 1913, the state Senate passed a law prohibiting the marriage of two people in the state whose union would not be legal in the state in which they resided. At the time, the manifest function of the law was to prohibit people traveling to the state to enter into mixed-race marriages. These marriages had been legal in the Commonwealth of Massachusetts since 1843, but controversy surrounding people entering the state for the purpose of mixed-race marriages spurred the 1913 prohibition. The law remained on the books even after the 1967 Supreme Court case of Loving v. Virginia overturned anti-miscegenation laws—laws against mixed-race marriages—throughout the United States.

In 2003, when Massachusetts became the first state in the nation to allow same-sex couples to marry, the then Attorney General Thomas Reilly revived the 1913 law in an attempt to block out- of-state same-sex partners from traveling to Massachusetts to marry and then returning to their home states. The then Governor, Mitt Romney, agreed with Attorney General Reilly and said the law must apply to same-sex unions. After several challenges by same-sex couples, the 1913 law was repealed in 2008. As we will discuss in more detail in Chapter 8: Law and Social Change, same-sex marriages are now the law of the land in the U.S., overturning any legal prohibitions against same-sex couples from entering into a legal marriage contract. A closer examination of anti-miscegenation laws is presented in Chapter 11: Race, Inequality, and Law. Another major dysfunction of law was identified by American legal scholar Donald Black (1989). Black argues that many kinds of discrimination and disadvantage are built into the legal structure and can be dysfunctional. Black quotes Anatole France (1844–1924) who said, “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread” (1894). But to whom are these laws most often applied? By and large, laws are constructed by those who already hold power in society. Therefore, the law has many dysfunctions, not least of which is the inequality built into its very construction and execution. Laws have also supported some of the worst evils in our society— slavery, wars, and treaties that nearly eliminated the Native American population of North America, the internment of Japanese citizens and Japanese-Americans during World War II, and the disenfranchisement of 50 percent of the American population (women) until 1920. In this book, we examine both the positive and negative consequences of current laws, legal changes, and legal issues. We will look at same-sex marriage laws, laws that attempt to determine racial and ethnic identity, and the state of law and gender discrimination in the U.S. Laws can both help and hinder. De Tocqueville and other scholars of the American legal structure have acknowledged both the positive and negative aspects of law on our lives. On the positive side, there is the social contract—laws keep tyranny at bay and grant us individual rights and freedoms. The social contract is a cornerstone of an organized society; it is the idea that individuals willingly enter into a state of governance in return for protection of their individual freedoms, their rights, and their general social welfare. The earlier discussion of junior operator laws provides an example of the social contract. The law was put in place to protect junior operators, and all drivers on the roads, from dangerous mistakes. If young people want to drive they willingly submit to the state’s requirements. Critics of the law argue that these and other driving laws, such as seatbelt requirements, represent the government as so-called “nanny state”—the notion of an overly protective government that wants to control all aspects of it citizens’ lives. But the laws are increasing the safety of people on the roads. Being a member of society presents a trade off between the loss of some individual choices and freedoms and the increased welfare and safety of citizens of the nation-state. De Tocqueville and countless other legal scholars also note the negative aspects of law. In fact, de Tocqueville worried about the tyranny of the majority, as did James Madison the fourth

president of the United States, “father” of the Constitution, and author along with Alexander Hamilton and John Jay, of the Federalist Papers. Just because a lot of people vote for something, or call on their legislators to enact a new law, does not make it right or beneficial. Madison’s system of checks and balances was intended to ensure that no one branch of the government gained too much power and that the tyranny of the masses will not threaten the liberty of individuals. Madison believed, “Justice was the end of government. It is the end of civil society” (https://www.billofrightsinstitute.org/founding-documents/primary-source-documents/the- federalist-papers/federalist-papers-no-51/). The apparatus of law gives vast power to judges, lawyers, and legislators. Judges can exercise their power arbitrarily; they are human beings who may harbor personal biases or conflicts with other human beings for instance, the lawyers trying cases before them. They are also given an enormous amount of institutionalized power and protection, which can lead to abuses of power. A horrifying example of judicial abuse of power played out in northeastern Pennsylvania, in what came to be known as the “kids for cash” scandal. In 2009 two judges in the Luzerne County Juvenile Justice System, Judge Mark Ciavarella and Judge Michael Conahan, were sentenced to lengthy prison terms for misdeeds involving their treatment of juvenile offenders. Throughout the first decade of the 2000s, the two judges sentenced over 2,000 juveniles to detention centers for minor infractions. Since the judges had financial stakes in the construction of the private detention center, Pennsylvania Child Care, and in keeping the building filled with juvenile offenders, these cases involved the blatant abuse of the power and trust that the people of Luzerne County had granted these judges (Ecenbarger 2012). Judge Conahan pled guilty to taking kickbacks for placing children in the privately owned Pennsylvania Child Care facility. He also pled guilty to money laundering and other federal offenses (Ecenbarger 2012). Conahan is serving 17 years in a federal prison. Judge Ciavarella, who the court determined played a larger role in the scandal, was found guilty of twelve federal felonies including racketeering (running an illegal business), bribery (taking or giving money, goods, or services to influence a person to act dishonestly), extortion (obtaining money, goods, or services through threats or intimidation), money laundering (making money that was obtained illegally look legal), and conspiracy (planning to commit a crime) (Ecenbarger 2012). Ciavarella is serving 28 years in federal prison. This scandal exemplifies the individual and institutionalized abuses of power and law. The judges involved were embedded in a culture of silence that protected them and allowed their abuses to go unchecked. They grew emboldened by the “zero tolerance” and “get tough on juvenile offenders” wave that swept the country after the Columbine and other school shootings in the late 1990s and early 2000s. While these two individuals were clearly in the wrong, larger cultural forces also shared some of the blame.

LAW AS A SOCIAL CONSTRUCTION Karl Marx said that people make their own history, “but [they] do not make it out of the whole cloth; [they] do not make it out of conditions chosen by [themselves] but out of such as [they] find close at hand” (1852:9). What do we mean when we say that law is a social construction? Anything that emerges through human interactions that take place within linguistic, economic, political, and legal contexts is a social construction. Laws are human constructs; we create laws to address social problems, settle disputes, and to exert power over others. ource: Edward Koren, New Yorker/CartoonStock.com What do we mean by law? Among scholars there is no universally agreed definition of law. If you want a definition of law, ask a legal scholar then, if you want another definition of the law, ask another legal scholar, and so on. One legal scholar, Max Radin, warned, “Those of us who have learned humility have given over the attempt to define law” (1938:1045). Another legal scholar, Oliver Wendell Holmes, preferred a simple, pragmatic definition of law as “the prophecies of what the courts will do, in fact and nothing more pretentious” (1897:460). Even poets have grappled with the question, “What is law?” In W. H. Auden’s Poem, “Law, Like Love,” the writer illustrates the difficulty of defining both concepts. Auden wrote: Law, say the gardeners, is the sun, Law is the one All gardeners obey Tomorrow, yesterday, today. Law is the wisdom of the old, The impotent grandfathers feebly scold; Law is the senses of the young. Law, says the priest with a priestly look, Expounding to an unpriestly people, Law is the words in my priestly book, Law is my pulpit and my steeple. Law, says the judge as he looks down his nose, Speaking clearly and severely, Law is as I’ve told you before, Law is as you know I suppose, Law is but let me explain it once more, Law is The Law (1983:1101–1102). Perhaps the perfect definition of law does not exist, but this is a book about society and laws, therefore, working definitions of both terms are required. The term society is often used but rarely defined. A working definition of society is the largest form of a human group. Members of society typically share a common territory and governance, as well as a common culture and social institutions, including the family, the economy, and law. A working definition of law for the

purposes of this book is a body of norms or rules that regulate the actions and interactions of individuals, groups, institutions, and societies. Laws are the codified social norms of society. Norms are established rules of conduct. To codify a norm means to write it into legal code and classify it among other legal codes to make it official. MAX WEBER’S SOCIOLOGICAL APPROACH TO THE STUDY OF LAW One of the most influential conceptualizations of law within the sociological tradition is the one proposed by Max Weber (1864–1920). In his book Economy and Society ([1905] 1978), Weber defined law as a body of rules maintained through consensus and coercion. According to Weber, consensus is agreement about how and why laws are made and what their purposes are. Consensus is the notion that there are deeply held standards of behavior upon which people agree and to which they willingly consent. Coercion is the enforcement of norms through the use of organized governmental power. As Weber states, “an order will be called a law if it is externally guaranteed by the probability that coercion, physical or psychological, to bring about conformity or avenge violation, [and] will be applied by a staff of people holding themselves especially ready for that purpose” (1947:127). Coercion includes all forms of negative sanctions, or punishments, for the violation of norms. Negative sanctions can include fines, community service, probation, and time in jail or prison. To illustrate Weber’s concept of law, let’s look at the setting of a college classroom. A college classroom contains elements of both consensus and coercion. Typically, there is consensus about the roles of student and professor, and there is agreement on the terms set forth in the syllabus. People enter the class because they have agreed to be there and to act in accordance with the roles and the expected behaviors attached to those roles. However, coercion could come into play if a student violates the norms of the class, if he or she is late every day, interrupts class, plagiarizes a paper, hands in someone else’s work, or cheats on an exam. If a student breaks any of the rules set forth in the syllabus or the college’s or university’s honor code, there will be sanctions including a failing grade on the assignment or in the class, and depending on the extent of the infraction expulsion from the school. These are negative sanctions. Professors can also be the subjects of coercion if they act improperly—if they discriminate against a student or somehow treat students unfairly. For instance, if a professor arbitrarily changes the rules of the class midway through the semester, he or she could be sanctioned by the department or by the college. If the violation is egregious enough, the professor could be terminated from the school. This is just one example of how consensus and coercion operate continuously within every aspect of our lives, even when a person appears to be the authority figure in a situation. In Weber’s conception of law, the law contains three basic features that distinguish it from other normative orders, including folkways or conventions, and customs or mores. These three features are:

1. Pressures to comply with the law must come externally in the form of actions, or threats of actions by others, regardless of whether a person wants to obey the law or simply does so out of habit.

2. These external actions or threats always involve coercion or force. 3. Those who enact the coercion are individuals whose official role is to enforce the law.

This corresponds to Weber’s notion of legitimate authority. Legal authority is legitimate because it is based on rational grounds and is the right of those who have been elevated to positions of power to issue rules and commands (1947).

In contrast to laws, Weber said, were customs and conventions. Customs are general rules that members of a society follow, but they are not tied to any external sanction (Weber 1947). You will not be formally punished if you choose to break a custom. Similar to Weber’s term custom is William Graham Sumner’s use of the term folkway. Sumner (1840–1910) was an American sociologist who defined folkways as “habits of a group” (1907:2–3). Folkways are the small, daily behaviors that people tend to follow out of tradition and because doing so helps maintain the flow of social interaction, such as holding the door for someone or facing the door when you get on an elevator. You could face your fellow elevator passengers, but it would interrupt the daily routine of elevator travel. Weber’s use of the term convention also stands in contrast to law. Conventions are more binding than customs, but not so binding as to be written into law (1947). People conform to conventions not because they fear arrest, but because they will meet with the strong disapproval of their family and peers. Weber’s conventions correspond to Sumner’s mores, which are standards of behavior that are more important to the social structure than folkways, but not so important that they have been written into law (1907). Mores reflect the general welfare of the group such as looking out for small children or taking care of one’s elders (Figure 1.1). Laws are distinct from other norms or rules of conduct. They carry the weight of punishment; they are enforced by specialized people in offices with legitimate authority to do so. Laws reach into every part of our lives but not all laws are equal. Since the apparatus of law is so enormous, we will be looking at ways to make the study of law more manageable. One way to break law down into smaller parts is by using typologies. A typology is a system of classification that helps break a large concept into smaller categories, making it easier to grasp and apply to real-world scenarios. Weber also contributed to the study of society and law by using typologies of legal systems. In his sociological examination of law, Weber made a distinction between public and private law. Public Law is the system of legal norms that directly regulate actions by the state, state officials, and people acting as agents of the state. The highest level of public law is constitutional law; it establishes the fundamental laws to which all others must conform. Private law is made up of all of the legal norms that regulate relations among individuals and among associations of individuals in social and economic relationships including marriage laws and other family law, labor contracts with private employers, and all other forms of civil law ([1905] 1978). A crime is a public wrong; a tort is a private wrong.

In contributing to our understanding of law Weber also constructed a typology of three general academic approaches to how the law can be studied. The purpose of Weber’s typology is to provide different ways of analyzing the law. I will briefly discuss all three approaches, but the remainder of the book will focus mainly on the third approach, the sociological approach to the study of law (Figure 1.2). 1. The Moral Approach The moral approach to law is based on the idea that law is rooted in some underlying beliefs about the nature of human beings and about what is right and what is wrong. Law is an expression of a common moral order on which there is general consensus. The moral approach is associated with claims of universality or commonality. Murder is against the law because we all agree it is bad, wrong, and immoral. An example of the moral approach to law can be found in the writings of French philosopher Jean Jacques Rousseau (1712–1778). Rousseau believed that all people are born good and noble but if they become bad they have been corrupted by society. In The Social Contract (1762) Rousseau wrote that “man is born free, and everywhere is in chains.” According to Rousseau, the evils of social life are due to the constraints of society: the government, laws, and social institutions. Rousseau wondered how individuals retain their freedom within the social structure. He argued that morality exists outside the law and that law is an attempt to embody moral values but does not always succeed. Along these lines American poet, naturalist, and philosopher Henry David Thoreau (1817–1862) offered another moral approach to law. Thoreau argued that people can and sometimes should disobey the law on the basis of moral principles. Civil disobedience is any act of lawbreaking intended to illustrate that the laws themselves are wrong and unjust ([1849] 2004). Examples of civil disobedience are acts of deliberate resistance, such as refusal to pay taxes which Thoreau did during the Mexican–American War. Other examples are refusal to join the armed forces as a conscientious objector, leaving the battlefield as a war deserter, and striking or taking part in other forms of work stoppages to highlight unjust practices of employers. In 1955 Rosa Parks carried out one of the most famous acts of resistance of the civil rights movement when she refused to give up her seat and sit in the “colored section” at the back of the bus. Acts of resistance are topics that could be studied using a moral approach to the law. 2. The Jurisprudence Approach Jurisprudence is the scientific study of law. This approach argues that the law should be internally consistent, orderly, and logical. The law should be autonomous; it should be independent of religious, ideological, and political beliefs. Law is viewed as a coherent body of rules that are rational, logical, and meted out fairly. Law is the expertise of those within the legal profession, especially judges and legal scholars. These assumptions make it quite different from the moral approach. The jurisprudence approach was discussed by Nicholas Timasheff in his 1937 article “What Is

Sociology of Law?” Following Weber, Timasheff differentiates between the sociology of law and the jurisprudence approach to law, which he defines as the science of law. Timasheff also notes that jurisprudence has many branches or subfields including comparative/ analytical jurisprudence, historical jurisprudence, and theoretical jurisprudence. Practitioners of the jurisprudence approach believe in the strict separation of legislative lawmaking and judicial decision-making and argue that the latter is the true arena of pure law (Figure 1.3). For example, let’s look at the definitions of negligence from a jurisprudence approach. Legal definitions of negligence require bipolarity, one of the legal constructs that defines the law on negligence. In a criminal case bipolarity means that one party is harmed (the victim) and another party caused the harm (the perpetrator or the defendant). In civil law awards of damages are based on the wrongfulness inflicted by the defendant. Legal theories of causation consider how directly the wrongful action of the defendant harms the plaintiff. Definitions of negligence and harm are legal constructs that have been established over time. They can be studied, and analyzed, and traced back to their origin. This type of academic exercise is the goal of the jurisprudence approach to the law. 3. The Sociological Approach The third approach in Weber’s typology takes a sociological approach to the study of law. This approach is concerned with the morality of law and its internal logic, like the first two approaches, but its primary concern is social: the effects of law on social action, how the law affects people’s beliefs about the social world, and how social and legal institutions are organized and change as society changes. A sociological approach to law also examines how law is created, which social groups have access to law-making, and how various social groups are affected by the law’s enactment. Sociologists are interested in how laws are created and the social conditions that give rise to new laws and changes in law. To distinguish between Weber’s three approaches let’s take the example of how a sociological approach to law differs from the moral and jurisprudence approaches, using laws determining the legal age to drink alcohol in the United States. What would the moral approach consider on the issue of underage drinking? A moral philosopher of law might argue that drinking is dangerous and immoral for minors and that children need protection from the potential harm and corruption of alcohol. A moral approach could also look at the act of underage drinking as a form of resistance to a law deemed unfair or arbitrary by teen drinkers, not unlike Thoreau refusing to pay his taxes. A jurisprudential approach to the topic of underage drinking might ask the following questions: What is the appropriate age of legality? How and when were these limits established and by what branch of the government? Why? Were there legal precedents? Are the laws establishing legal drinking ages consistent across time and place? Are those who sell alcohol to minors culpable for harms that occur while minors are under the influence? A jurisprudential analysis might also consider legal definitions of harm, risk, and liability associated with underage drinking.

What can a sociological approach add to the discussion of underage drinking? Despite the fact that laws forbidding this behavior have been in place for decades—and the legal definitions take into account harm, risk, and liability—we know that underage drinking is a widespread social phenomenon, particularly on college campuses and other places where teenagers and young adults congregate. Sociologically, we could look at the impact of the law on social behavior. For instance, what is the point of upholding a law that is so routinely broken? Maybe prohibition of underage drinking is not harsh enough, and the legal drinking age should be 22 or 23. Sociologists can look at drinking as a teen ritual or rite of passage, or as a form of groupthink where group members seek consensus or unanimity above all else, even to the point of suppressing their own personal opinions and silencing dissenters (Janis 1982). We could examine the social context of the laws, when were the laws constructed and why? Which states changed the laws first, and which ones waited until later? A sociologist could conduct a cross-cultural analysis of teen drinking patterns in the United States compared to those in countries that do not have age limits. Do the laws deter teen drinking? How does drinking behavior differ in the United States when compared to countries with more liberal approaches to young adults imbibing, such as France or Italy? A development in the study of law dating to the mid-nineteenth century combines two of Weber’s approaches to the study of law. Sociological jurisprudence brings together the sociological with the jurisprudential approach to study law, legal philosophy, and the use of law to regulate conduct. Roscoe Pound (1870–1964) founded the field of sociological jurisprudence. He argued that law should be studied as a social institution, and he utilized sociological theories and data in his work. Pound served as the dean of Harvard Law School from 1916 to 1936, and in those twenty years he developed his interdisciplinary approach to the study of law and society, viewing law as a dynamic, ever-changing system influenced by social forces, which in turn influence the larger society. As Pound stated in one of his most famous quotations, “The law must be stable, but must not stand still” (Pound 1922:19). We will look more closely at law and social change in Chapter 8. Sociology and the study and practice of law do not always fit together perfectly. Each field has its own specialized language and methodologies. Lawyers are advocates and sociologists are scientists who should try to be as objective as possible. Sociologists view the law as an object of scholarly inquiry, not a tool to be used and practiced by social scientists. Increasingly, sociologists and lawyers are working together on problems that concern both groups, including jury behavior (social psychology), jury selection, conflict resolution, and consumer protection issues. Many lawyers and judges use sociological and criminological research in their work. The two professions certainly overlap and can complement each other. In the next chapter, we will look more closely at the rule of law as well as different typologies of law and legal systems. As we have already seen in this chapter, there is no one way to define and study law. In Chapter 2: The Rule of Law and Major Legal Systems, we continue to examine some of the ways sociologists and other socio-legal scholars have taken up the task of defining law and

studying how law affects the social lives of individuals. We also look at other typologies of law and different legal systems that exist throughout the world.

• civil disobedience • codify • coercion • consensus • conventions • crime • customs • dysfunctions • folkway • jurisprudence • law • litigious • manifest functions • latent functions • mores • negative sanctions • norms • private law • public law • social contract • sociological approach • tort • typology • working definition of society • working definition of law