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3 Understanding Law and Society

Early Approaches and Contemporary

Perspectives

Learning Objectives

1. Identify the major assumption of legal formalism.

2. Summarize the arguments of Durkheim, Weber, and Marx and Engels.

3. Identify the major assumptions of legal realism.

4. Outline critical race theory's view of law and society.

5. Explain feminist legal theory's perspective on gender, law, and the legal system.

The study of law and society features a general social science framework on law as spelled out in Chapter 1. At the same time, there is much to learn from the different perspectives that law and so-

ciety scholars have. This chapter reviews how social scientists have tried to understand law since the

study of law and society began during the 19th century. We first examine early approaches before turning to contemporary perspectives; subsequent chapters will reflect many of the assumptions and beliefs of these explanations.

Early Approaches

Law has been studied from a social science perspective for two centuries, and many perspectives or schools of thought exist. We review early approaches in this section and then turn to contemporary views in the next section.

Legal Formalism

Legal formalism, also called legal positivism or analytical jurisprudence, was quite popular in the 19th century and is still very influential. Its central assumption was the belief that law is a self-contained system of logic that is independent of social and moral considerations. This, of course, is the tra- ditional view of law, featured in Chapter 1, that dominates the teaching and understanding of law in law schools today. Legal formalists' main concern was only whether legal rules were logical, not

whether these rules were fair or just. Moral considerations, they thought, should play no role in

determining the worth and validity of law. A chief proponent of legal formalism was John Austin. Austin (1790-1859) is the British legal

philosopher cited in Chapter 2 for equating law with the command of a sovereign. Another chief

proponent was Hans Kelsen (1881-1973), an Austrian scholar who taught at Harvard Law School ~n l rh T i.. .... n i 1e., Tloloo. is L. wn 1,r 1 nuro tivonry of lnvi Relieving that

28 Understanding Law and Society

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Utilitarianism was developed during the 18th and 19th centuries, primarily by Italian economist Cesare Beccaria (1738-1794) and English philosopher Jeremy Bentham (1748-1833), during a time when the European criminal justice system was, to put it simply, horrid. People would be routinely arrested on trumped-up charges and weak evidence and incarcerated without trial in jails that were hellholes. The use of torture to force confessions was also quite common (McLynn 2014).

Beccaria and Bentham condemned these and other practices. Reflecting the philosophy of the

a Enlightenment, they both thought that people act rationally and with free will and are mainly con- cerned with maximizing their pleasure and reducing their pain. If so, the criminal justice system needed to be punitive only to the degree that deterred people from committing crime. Given this

assumption, these writers said, the criminal justice system as it then existed was much harsher than it needed to be to deter people from committing crime. Beccaria's and Bentham's views helped reform the criminal justice system in Europe, and they also influenced the thinking of notable figures in the American colonies such as John Adams and Thomas Jefferson (Bessler 2014). rn

In believing that law should be divorced from moral considerations, Austin, Kelsen, and other

legal formalists take issue with the natural law perspective. This perspective began with ancient

Greek and Roman philosophers and was developed by notable religious figures thereafter. The

term natural law refers to legal principles derived from nature or God and thought to be binding on

all human society, as opposed to positive law, which is law written by the human hand. Aristotle

wrote that natural law embodies universal truth while positive law is more temporary and subject

to the whims of the particular people who create law. St. Thomas Aquinas, the 13th-century Catholic theologian, added that laws that do not serve the common good are unjust and, in fact,

not laws at all. The debate between positive law and natural law has been the subject of countless essays, journal

articles, and books that address issues beyond the scope of this book. Whether you favor a natural- law or positive-law approach is a matter of your own philosophy; most social scientists probably favor the perspective of positive law over that of natural law.

The Historical School

Charles Darwin's theory of evolution, published in 1859, inspired the work of the historical school. This was the name given to the work of several 19th- and early 20th-century scholars who discussed how law and legal systems changed as societies evolved from ancient times to modern times. To these scholars, the ways in which law changed over those centuries reflected the ways in which the larger society changed. In developing and documenting this principle, the historical school established a basic theme of the study of law and society—that law reflects the society in which it is found—that still guides much theory and research today. (See Chapter 1.)

Friedrich Karl von Savigny: Law Reflects People's Beliefs and Values

A founder of the historical school was German scholar Friedrich Karl von Savigny (1779-1861), who believed that law expresses the culture, spirit, and values of a people and, in this sense, was little different from art or music. Taking issue with John Austin's view that law is the command of a sovereign, Savigny wrote that because law develops from a people's beliefs and values, it does not develop just from a ruler. This view led Savigny to draw two related conclusions: (1) law imposed by a ruler may violate the beliefs and values of a people, and (2) attempts to impose law on a people

Understanding Law and Society 29

sen, and other with whose beliefs and values it conflicts may prove relatively futile. We shall see evidence of this n with ancient latter conclusion in Chapter 8's discussion of law and social control. thereafter. The Although Savigny's views remain influential, critics say he ignored or underestimated some im- be binding on portant factors (Schur 1968). Although Savigny believed that law reflects people's beliefs and values, and. Aristotle some laws are passed despite many people's beliefs and values. A recent example of this fact involves ty and subject the US Supreme Court's 2022 Dobbs v. Jackson Women's Health Organization ruling that allowed states 13th-century to ban abortions. National and some state public opinion polls indicated that a majority of the public t and, in fact, in fact opposed this ruling and the new state bans (Pew Research Centex 2022; Pittman 2022). In

another criticism of Savigny's views, laws may differ between, say, two locations (such as two states assays, journal within the United States), even if people's beliefs are very similar in both locations. As well, law for a natural- £= may also influence people's beliefs and values rather than just reflecting them, as Chapter 9 discusses.

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Sir Henry Maine: From Status to Contract

Another historical school scholar was British scholar Sir Henry James Sumner Maine (1822-1888), better known as just Sir Henry Maine. His 1861 book Ancient Law described the nature of law in the ancient world and outlined how it had evolved to the 19th century. A key change in law during this time, said Maine, was the change from status to contract. By this he meant that relationships in ancient times were governed by power: One party entering a relationship would have more power than the other party because their family of origin had greater wealth and prestige. Many relationships, in fact, were not voluntary at all, as slavery in ancient Rome reminds us. As society evolved, however, relationships based on power (i.e., status) gave way to ones that were more voluntary and governed eventually by verbal and then written contracts. Thus, law in essence changed from status to contract.

Emile Durkheim: The Rise of Restitutive Law

French scholar Emile Durkheim (1858-1917) was a founder of sociology and considered law a key variable for understanding how societies changed as they became more modern. His insights focused on how the type of law in a society depends heavily on the society's homogeneity (similar norms, beliefs, and values) or heterogeneity (dissimilar norms, beliefs, and values) (Durkheim 1893/1933).

In small, traditional societies, he wrote, people are very similar in thought and deed, and these societies are said to be homogeneous. Because people in these societies do have similar beliefs and values, their collective conscience, Durkheim's term for a society's belief and value system, is especially strong. And because any deviant act thus strongly offends this collective conscience, the response to this act is especially punitive as people react emotionally to an act that offends them. Durkheim called the harsh type of law found in these societies repressive law. In contrast, modern societies are heterogenous because people have different beliefs and values, and these societies' collective consciences are weaker. Their response to deviant acts is thus less punitive and instead takes the form of restitution as it involves compensating an aggrieved party for the harm done to them. Durkheim used the term restitutive law to characterize this type of law in modern societies.

Durkheim's linking of the type of law found in a society to the nature and extent of social bonds it exhibits, and thus to its level of modernization, was a key insight for early law and society thinking and continues to have historical importance for the study of law and society today. Unfortunately, later scholarship (Durkheim presented his argument in 1893, before the advent of modern anthro- pological research) indicated that Durkheim may have misinterpreted the relationship between type of society and type of law. As Chapter 4 discusses, many traditional societies studied by anthropolo- guts in fact rely on restitution to settle disputes and to deal with people who violate social norms. By the same token, many modern societies are very punitive in their approach to law. Although

30 Understanding Law and Society

whipping and other physical punishments are no longer used to bring criminals to justice, incarcera- tion is much more punitive than restitution, and the death penalty is still used in the United States. Even if Durkheim may have misread the law-modernization relationship, his thesis remains valuable for stimulating scholarship in law and society and for more generally advancing the idea that law reflects a society's beliefs, values, and social structure.

Max Weber: The Rise of Rational Law

German scholar Max Weber (1864-1920) was another founder of sociology. He recognized that as societies modernize, their procedures for accomplishing tasks rely less on traditional customs and beliefs and more on rational (which is to say rule-guided, logical, and impersonal) methods of decision-making, in which the means have a reasonable connection to the ends and vice versa. The development of rational thinking, he said, allowed complex societies to accomplish their tasks in the most efficient way possible. For Weber, then, the key hallmark of modern society is the development of rationality (Weber 1921/1978).

Weber used the concept of rationality to understand how societies changed legally as they be- came more modern. One major change involves the type of power characteristic of a society. In many traditional societies, he wrote, the major type of power is traditional authority, which is rooted in the long-standing beliefs and practices of a society. It exists and is assigned to specific individuals because of that society's customs and traditions. Individuals enjoy traditional authority either because they are the children or other relatives of people who already exercise traditional authority or because their societies believe their god anoints these individuals to lead their society. Traditional authority is most common in preindustrial societies, in which tradition and custom are so important, but it exists in some modern monarchies where royalty enjoy high status and at least some influence because they come from a royal family.

Traditional authority is granted to individuals regardless of their qualifications. They do not need any special skills to receive and wield their authority as their claim to it is based solely on their bloodline or divine designation. Someone granted traditional authority can be intelligent or witless, fair or arbitrary, and exciting or boring, but this person receives the authority just the same because of custom and tradition. Because not all people granted traditional authority are well qualified to use it, societies sometimes find that individuals with this authority are not always the best leaders.

A second type of power, said Weber, derives from law. This type of power is called rational-legal authority. To be more precise, rational-legal authority is based on a belief in the legitimacy of a society's laws and rules and in the right of leaders acting under these rules to make decisions. This type of authority is a hallmark of modern democracies, in which power is given to people elected by voters, and the rules for wielding that power are usually set forth in a constitution, charter, or other written document. Whereas traditional authority resides in an individual because of inherit- ance or divine designation, rational-legal authority resides in the office that an individual fills, not in the individual per se.

A third type of power discussed by Weber is charismatic authority, which stems from a per- son's extraordinary personal qualities and their hold over followers because of these qualities. Such charismatic people may exercise authority over a whole society or only over a specific group within a larger society. They can exercise authority for good and for bad as this brief list of charismatic leaders indicates: Joan of Arc, Adolf Hitler, Mahatma Gandhi, Martin Luther King Jr., Jesus Christ, Prophet Muhammad, and Buddha. Each of these people had extraordinary personal qualities that led their followers to admire them and to follow their orders or requests for action. Weber empha- sized that charismatic authority is often less stable than either traditional authority or rational-legal authority. The reason for this is simple: Once a charismatic leader dies, the leader's authority dies as

Understanding Law and Society 31

carcera- well. Although the leader's example may continue to inspire people, it is difficult for another leader d States. to come along and command people's devotion as intensely. valuable Charismatic authority can reside in a person who came to a position of leadership because of that law traditional or rational-legal authority. Over the centuries, several kings and queens of England and

other European nations were charismatic individuals as well (while some were far from charismatic). A few US Presidents—Washington, Lincoln, both Roosevelts, Kennedy, Reagan, and, for many people, Clinton, Obama, and Trump—also were charismatic.

Weber's emphasis on the rise of rational-legal authority in modern society was a major con- ed that tribution to the understanding of law and society. Weber, in fact, used the development of law to

customs illustrate the development of rationality. He wrote that legal procedures can be either rational or hods o£ irrational, with the former characterizing modern societies and the latter characterizing traditional rsa. The societies. Rational legal procedures involve the use of logic and reason to reach legal decisions while ks in the irrational legal procedures are based on magic or faith in the supernatural, including religion. Weber oprnent said that legal procedures can also be formal or substantive. Formal in this context means that legal

decisions are based on established rules, regardless of whether the outcome of a decision is fair or they be- unfair. Substantive means that a legal decision takes account of the circumstances of individual cases

ociety. In to help ensure a fair outcome. which is Weber noted that law has become both more rational and more formal over time. Thus, most specific 'z ; modern legal systems are characterized by formal rationality: legal decisions are based on logic and do

authority not consider whether their outcomes are fair or unfair, only whether the outcome makes sense in aditional view of the facts and other circumstances of a case. This type of law, of course, creates the tension that

society. a,r sometimes occurs between logical decision-making and justice and fairness, as Chapter 1 discussed.

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Karl Marx and Friedrich Engels: Law as Domination

do not Karl Marx (1818-1883) was another founder of sociology, but he was also a towering figure in the on their history of social and political thought. He and his frequent collaborator Friedrich Engels (1820— witless, 1895) left a body of written work that has influenced the development of sociology, political science,

ebecause economics, and other disciplines. ed to

In understanding the modernization of society, Marx and Engels's chief concern was the rise of aders. capitalism as societies' economiesyevolved from agriculture to industry. Every capitalist society, they

al -legal said, has two classes based on the ownership of the means of production—tools, factories, and the y of a like. In a capitalist society, the bourgeoisie or ruling class owns the means of production, while the

This proletariat or working class is oppressed and exploited by the bourgeoisie. This difference creates lected an automatic conflict of interests between the two groups. Simply put, the bourgeoisie is interested er, or in maintaining its position at the top of society, while the proletariat's interest lies in rising from the erit- bottom and overthrowing the bourgeoisie to create an egalitarian society. not Marx and Engels thought that law aided the ruling class's oppression of the working class in two

ways (Cain and Hunt 1979; Collins 2001). First, law helps preserve private property. Because the a per- ruling class owns almost all private property, law thus benefits this class much more than the working Such class. Second, law provides legal rights for all and thus creates a facade of justice that helps the work- thin ing class feel good about their society when, in fact, they should be angry about their oppression.

antic In this way, law contributes to false consciousness, which prevents the working class from realizing its Christ, revolutionary potential.

bes that Marx and Engels also wrote about crime, though in three different ways. Sometimes, they de- pha- picted crime as the working class's logical reaction to the squalid conditions in which they lived

;=legal under capitalism, while in other writings, they depicted crime as political rebellion by the work- es as ing class. The third way that they viewed working-class crime was much more negative, as they

32 Understanding Law and Society

sometimes called criminals the lumpenproletariat, by which they meant "the social scum, the posi- tively rotting mass" of street criminals (Marx and Engels 1848/1955:44). It should be obvious from their language that Marx and Engels viewed the lumpenproletariat very negatively, partly because they thought it lacked the class consciousness needed for a working-class revolution.

Legal Realism

Legal realism was a popular school of thought in the United States in the early to mid-20th century that greatly influenced the study of law and society then and now (Skolnick 2012). It sought to understand how law really works as opposed to how it is supposed to work in theory. In doing so, legal realism directly challenged the assumptions of legal formalism, which ne- glected the possibility that legal rules may not work in practice the way they are supposed to work in theory.

Legal realists devoted much attention to the appellate judges' decision-making. Recall that legal formalism and traditional legal theory assume that judges' decisions are merely logical conclusions. In this sense, judges are said to find law in the evidence and circumstances of cases. In contrast, legal realists argued that judges make law instead of just finding it. By this, they meant that judges some- times make decisions according to certain beliefs reflecting the judges' socioeconomic backgrounds and not just according to legal doctrine. They then reach a decision based on what they consider a fair outcome and, after doing so, write a decision in which they interpret the law in such a way as to justify this outcome.

Legal realists also wrote about juries. Here again, they found that how juries function sometimes departs from the way they are supposed to £unction. Ideally, juries should base their verdicts on an impartial assessment of the evidence and law in a case, and their verdicts should represent the jurors' best attempt to logically apply the law based on this assessment. Instead, legal realists argued, juries sometimes base their verdicts on their biases for or against a defendant.

Although legal realism reached its zenith in the 1920s and 1930s, its origin is often credited to the work in the 1880s of Oliver Wendell Holmes, Jr., who later served on the US Supreme Court. As Chapter 1 noted, Holmes took issue with the traditional view of law espoused by legal formalism. His famous passage included in Chapter 1 is worth repeating here in shorter form:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism [logical argument] in determining the rules by which men should be governed.

(Holmes 1881/1963:1)

In this passage, we see legal realism's emphasis on the importance of nonlegal factors for legal decision-making.

The two most notable legal realists after Holmes were Karl Llewellyn and Jerome Frank. Llewellyn (1893-1962) was a US law professor who, among other notable writings, authored a classic study with anthropologist E. Adamson Hoebel on law among the Cheyenne Native Ameri- can people (Llewellyn and Hoebel 1941). Frank (1889-1957) was a federal appellate court judge whose most influential books were Law and the Modern Mind (Frank 1930) and Courts on Trial: Myth and Reality in American Justice (Frank 1949). In the former book, he attributed judges' decisions to aspects of their personality and not only to their logical deductions, while in the latter book, he

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Legal realism's theme that law often operates differently from how it is supposed to operate re- flects this approach's more general view that nonlegal factors affect legal decision-making. This em- phasis is certainly central to law and society scholarship today. It underlies work by political scientists since the mid-20th century on the social backgrounds and political ideologies of judges that helps explain their legal decisions (Coplan 2011; Cross 1997; Harris and Sen 2019), and it also underlies work by law and society scholars from several disciplines on the nonlegal factors that may affect the outcomes of criminal and civil cases. At the same time, legal realism has also been faulted for exag- gerating the subjectivity of legal decision-making, which many scholars consider more objective and logical than the legal realists did.

Sociological Jurisprudence

Developed at about the same time as legal realism, the school of sociological jurisprudence drew on the new discipline of sociology to argue that law has social underpinnings and impact. The two leading figures of sociological jurisprudence, Eugen Ehrlich and Roscoe Pound, pursued this theme in slightly different ways.

Eugen Ehrlich (1862-1922), an Austrian scholar, distinguished between positive law and living law. Positive law, as we saw earlier, simply means the body of law enacted by legislators and shaped by judges while living law refers to a society's customs. Ehrlich emphasized that positive law can be effective only to the extent that it corresponds to living law; if specific laws violate people's customs, these laws are not likely to be very effective. Taking this view one step further, he added that law by itself cannot produce social order unless people are already predisposed to want to obey legal norms because they regard these norms as legitimate and binding on their conduct.

Roscoe Pound (1870-1964) served from 1916 to 1936 as dean of Harvard Law School. Although he greatly influenced legal education at Harvard, he also wrote many articles, reports, and books that greatly shaped the bourgeoning field of law and society. Pound distinguished between law in action and law in books to stress his idea that there is a large gap between what formal legal rules say and how they actually work or, to put it a bit more simply, between what the law says and what it does. To illustrate this distinction, Pound said that although justice should be blind to differences based on race, social class, and other such factors, the legal system was, in fact, discriminatory and a setting in which the low-income people received little justice. Accordingly, he called for extensive reform in the criminal justice system and other areas of the law.

As another illustration, Pound observed that legislators may have a specific purpose in passing a statute, but the actual effects of the statute may be quite different from what the legislators intended. In a recent example of this phenomenon, several states and cities have enacted "ban the box" poli- cies that prohibit employers from asking about criminal history on job applications. The intent of this legislation is to enhance the employment prospects of convicted offenders, who are dispropor- tionately Black or Latinx, and, in turn, to reduce their likelihood of reoffending. However, some research has shown that these policies have made it more difficult for Black and Latinx applicants to secure job interviews, apparently because employers suspect in the absence of a criminal history question on their job applications that these applicants may well have a criminal history anyway (Doleac 2016).

As this example suggests, sociological jurisprudence's emphases continue to help us understand law from a social science perspective. As Schur (1968:43) observed, "[S]ociological jurisprudence left an indelible mark on American legal thought and also provided suggestive guidelines for social research on the law"

34 Understanding Law and Society

The Early Law and Society Movement

By the end of the 1930s, the stage was set for the social sciences to embrace law as a key topic for theory and research. Not only was law a social institution in its own right, but, as the historical school showed, the study of law could also help enable the understanding of society itself. Utilitari- anism, the historical school, legal realism, and sociological jurisprudence all had yielded important insights and emphases that the social sciences could have incorporated and expanded to study law. Despite this foundation, however, the social sciences generally ignored law for another two decades until after World War II, when the study of law and society, often called the law and society movement, began in earnest (Friedman 1986).

Anthropology

This movement encompassed several academic disciplines and was spearheaded by anthropologists before and after World War II. As Chapter 2 noted, these anthropologists found that the societies they studied had what were then considered to be surprising amounts of social order and social control, thanks in part to regular methods for settling disputes that often did not involve the use of physical violence. To many anthropologists, these societies were far from lawless, and much anthro- pological writing emphasized the law that did, in fact, characterize traditional societies.

Bronislaw Malinowski published one of the earliest and still most influential anthropological legal studies, Crime and Custom in Savage Society, in 1926 (Malinowski 1926). This book examined norms, norm violation, and social control among the peoples of the Trobriand Islands near New Guinea in the South Pacific. It emphasized that law existed among the Trobriand people even if they did not have the police, courts, and judges that typify modern societies. To make this case, Malinowski de- fined law as the reciprocal obligations that people have to each other that, if not fulfilled, would lead to disappointment and other negative consequences. Some scholars later criticized his definition for not neglecting the role that physical coercion from an authoritative body might play in enforcing norms (Schur 1968). One of these scholars was A.R. Radcliffe-Brown, whose definition of law, presented in Chapter 2, highlighted this role. For this reason, Radcliffe-Brown (1952) thought law did not exist in the many traditional societies that lack centralized authority and physical coercion.

A noted legal anthropologist of the post—World War II period was US scholar E. Adamson Hoe- bel (1906-1993). Hoebel, co-author with Llewellyn of the book on Cheyenne law noted earlier, also wrote another very important book, The Law of Primitive Man: A Study in Comparative Legal Dynamics (Hoebel 1954). This book explained Hoebel's views of law based in part on his observa- tion of norms, law, and dispute settlement among several Native American societies. He emphasized both that law was essential for society and that society, or rather social bonds and consensus, were essential for law: "Without the sense of community there can be no law. Without law there cannot be for long a community" (Hoebel 1954:332).

Two other legal anthropologists of this period were Paul Bohannan (1920-2007) and Max Gluck- man (1911-1975). Bohannan ended his long academic career at the University of Southern Cali- fornia and won acclaim for his study of African homicide and suicide. Gluckman spent his career at the University of Manchester in England and was active against colonialism. During the 1950s and 1960s, both men were part of a debate among anthropologists on the applicability of modern Western concepts of law to the society and culture of traditional societies (Nader 1969).

Political Science

Political science also made notable contributions after World War II by studying the decisions of justices on the US Supreme Court and on the federal appellate courts. This body of research began

Understanding Law and Society 35

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where legal realism left off and examined how factors such as the socioeconomic backgrounds of justices, their religious upbringing, and their membership in either the Democratic Party or Re- publican Party seemingly influenced their judicial decisions (Grossman 1966; Schubert 1963). For example, in cases involving disputes between labor and management, Democratic judges tended to side with labor, and Republican judges tended to side with management. Political scientists during this period also wrote several pathbreaking studies of the Supreme Court's involvement with the political world outside its chambers (Pritchett 1948) and of the social psychology of its decision- making (Murphy 1966; Snyder 1958).

This work by political scientists was significant in its own right and provided the basis for much law and society scholarship today. Perhaps most importantly, it made clear that judges are not merely "logical machines" but rather very human and thus subject, as most people are, to beliefs and biases stemming from their personal backgrounds and involvement with individuals and groups outside their chambers. As two contemporary political scientists wrote, "Given that the application of the law rarely provides one objectively correct answer, it is no surprise that judges' decisions vary ac- cording to their personal backgrounds and, more importantly, according to their ideology" (Harris and Sen 2019:241). To the extent this is true, law is a very different phenomenon from how the legal formalists of the 19th century described it.

In the 1970s, several political scientists turned their attention to the criminal courts (Eisenstein and Jacob 1977; Jacob 1978). They discovered something that judges, prosecutors, and defense attorneys already knew; this "something" was that the adversary model of criminal justice is largely a myth. In most criminal cases, prosecutors and defense attorneys do not vigorously contest the evidence, as the adversary model implies and as many TV shows and films about lawyers and courtrooms dramatically il- lustrate. Instead, political scientists found, consensual decision-making characterizes most criminal court proceedings as judges, prosecutors, and defense attorneys cooperate on plea bargaining to ensure the ef- ficient processing of huge numbers of criminal cases. For this reason, these political scientists considered plea bargaining to be a necessary and even useful phenomenon. Chapter 12 examines this issue further.

Sociology

During the 1960s and 1970s, sociologists published several accounts that criticized the lack of justice in the criminal courts for lov -income people and people of color (Blumberg 1967a; Clarke and Koch 1976; Mather 1973; Sudnow 1965). They found that defense attorneys were often overbur- dened and/or underqualified. They also found that the caseloads in the nation's municipal courts were so large that defense attorneys could spend little time on any one case, with the result that many defendants might be induced to plead guilty even if they had not committed any crime. One scholar charged that law was a "confidence game" in which defense attorneys' main concern was to collect their fee while doing as little work as possible on behalf of their clients (Blumberg 1967b).

Beginning in the 1970s, sociologists and criminologists began to conduct quantitative analyses of the factors affecting whether criminal defendants were found guilty and the harshness of the punishment if found guilty. These studies concluded, contrary to what many scholars might have assumed, that race did not affect sentence lengths once factors such as the seriousness of the charges and a defendant's prior record were taken into account (Hagan 1974; Kleck 1981). However, later studies found that race and other extralegal factors sometimes do affect sentencing, as Chapter 10 discusses further.

Contemporary Perspectives

The law and society movement has grown since the 1970s and flourishes today. Although contem- porary law and society work comprises many perspectives, certain perspectives stand out because

36 Understanding Law and Society

they have either shaped scholarly thinking or challenged key assumptions of traditional law and society scholarship. We now turn to these perspectives.

Functionalist and Conflict Views

A basic difference in how law and society may be understood emerges from considering views drawn from functionalist and conflict perspectives, which offer contrasting assumptions of how society works. Sociolegal scholars have applied these two perspectives' general frameworks to law as a social institution. Before discussing functionalist and conflict views on law, it will be helpful to review the more general perspectives from which these views are drawn.

Functionalist theory—also known as functionalism in sociology and better known as pluralism in political science—was developed as an intellectual reaction to the French Revolution of 1789 and to the Industrial Revolution of the 19th century. The French Revolution, of course, involved a bloody revolt against the French aristocracy, while the Industrial Revolution produced large cities and their serious problems of crime and poverty. Concern about social order and stability in the wake of these two revolutions prompted European intellectuals to emphasize in their writings that societies need effective rules and socialization and strong social bonds to survive (Allan and Daynes 2017). A key intellectual of this period was Emile Durkheim, whom we discussed earlier. Much of functionalist theory derives from his emphasis on the importance of social integration and socializa- tion for social stability.

Functionalist theory today uses the human body as a model for understanding how society should and should not work. Just as the body has various components that allow it to function (for example, our eyes allow us to see), so society has various parts, including the family, schools, and religion, that enable it to function. Because it emphasizes the importance of society's social institutions for social stability, functionalist theory disapproves of sudden social change. Just as any sudden changes in our bodily parts can endanger our health and general well-being, so can any sudden changes in social institutions endanger society's ability to function. A close offshoot of functionalist theory is consensus theory, which assumes that most people, regardless of their race and ethnicity, social class, gender, age, and so forth, generally hold similar views on important social and political issues.

Some of Durkheim's•work is especially relevant for a functionalist understanding of law, crime, and society as it involves deviant behavior. If we define deviance as behavior that violates social norms and arouses negative social reactions, Durkheim (1895/1962) recognized that there will al- ways be people who violate the many social norms that exist. Given this fact, Durkheim stressed that a society without deviance is impossible because the collective conscience is never strong enough to prevent all rule breaking. Because Durkheim thought deviance was inevitable, he considered it a normal part of every healthy society.

In a surprising and still-controversial twist, Durkheim further argued that deviance serves several important functions for society. The first function is that deviance clarifies social norms and in- creases conformity. This happens because the discovery and punishment of deviance reminds people of the consequences of violating norms.

A second function of deviance is that it strengthens social bonds among the people reacting to the deviant. An example of this function is a school pep rally. At these rallies, the "deviant" is the other school that your own school's team will soon play. As you and your schoolmates rally against this "deviant" school, you feel more united as a result.

A third function of deviance, said Durkheim, is that it can help lead to positive social change. Although some of the greatest figures in history—Socrates, Jesus, Joan of Arc, Mahatma Gandhi, and Martin Luther King, Jr., to name just a few—were considered the worst kind of deviants in their time, their heroic example contributed to the freedom of thought we now enjoy.

Understanding Law and Society 37

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Conflict theory, derived from Marx and Engels' work, differs from functionalist theory in many respects. In contrast to functionalist theory's positive view of social institutions, conflict theory em- phasizes that these institutions help perpetuate inequality by maintaining the status and influence of the ruling elite. Whereas functionalist theory dislikes sudden social change, conflict theory asserts that such social change is needed to lessen social inequality. And whereas consensus theory as- sumes that people generally agree on important issues regardless of their social backgrounds, conflict theory assumes that people often disagree because of different needs and perceptions arising from their backgrounds.

Functionalist and Conflict Perspectives on Law and Society

These general views of functionalist and conflict theory have been applied to law, and they offer a contrasting view, partly reflected Chapter 1's discussion of the functions and dysfunctions of law, The functionalist view emphasizes the importance of law for the proper workings of society. More specifically, law is said (to recall the functions of law outlined in Chapter 1) to help preserve social order, make social life possible, settle disputes, protect individual freedom, and bring about needed social change. The functionalist view further assumes that the major sociodemographic groups gen- erally agree on important legal issues such as appropriate sentencing for convicted criminals.

The pluralist variation of functionalist theory found in the field of political science adds an im- portant assumption to these general views. Pluralist theory recognizes that society is filled with in- terest groups that compete for wealth and influence. As they do so, they try to affect what legislation gets passed and what social policies get enacted. Pluralist theory assumes that law serves as a neutral referee over the competition among interest groups. In this view, law does not take the side of one interest group or another but rather ensures that the competition is conducted fairly and that every- one "plays by the rules" Any legal decisions that help determine the outcome of the competition are thus based not on any bias toward one side or the other but rather on dispassionate interpretations of law, evidence, and other considerations.

Once again, conflict theory differs from functional theory in all the beliefs just outlined. First, it assumes that law is dysfunctional for society; in particular, it assumes that law is unequal in its operation and also contributes to inequality in the larger society. Second, it assumes that major so- ciodemographic groups disagree on important legal issues in ways that reflect their life experiences and different positions on the socioeconomic ladder. Third, it assumes that law takes sides in the competition among interest groups and, more specifically, that it takes the side of powerful, estab- lished interests such as corporations.

Where does the truth lie? There is much evidence to support either the functionalist or the con- flict perspective on law and society, and many scholars favor one perspective or the other. This book finds merit in both perspectives. It is certainly true that law serves the several functions assumed by functional theory, but there is also compelling evidence that inequality sometimes characterizes the law and that law may reinforce social inequality (see Chapter 10). Similarly, there are certain beliefs about legal issues on which the major sociodemographic groups generally agree, but there are others on which they disagree. For example, research finds that white people are more punitive than Black people regarding the death penalty and other types of legal punishment and that racial prejudice among white people leads them to be more punitive (Butler et al. 2018; Unnever 2014).

l 38 Understanding Law and Society

Turning to the issue of interest group competition, the evidence is complex, but it does seem that

the "haves" in society are often better able to take advantage of the law to win important advantages

for themselves (Galanter 1974). Regardless of whether or not law acts as a neutral referee, it offers

an arena for conflict in which individuals and groups with money and influence are better equipped

to compete and win. (See Chapter 10.)

Marxist Perspectives

Recall that Marx and Engels thought that law helped the capitalist class maintain its position at the

top of society by preserving private property and by convincing the working class that society was

fair and just. Beginning in the 1970s, Marxist scholars drew on this basic view to develop competing

perspectives of the relationship between law and society (Gold et al. 1975; Hepburn 1977; Jessop

1977). Although these perspectives agree that law and the state serve the interests of the ruling class,

they differ on some key elements.

One perspective is called the instrumentalist view (also orthodox Marxism). In this view, law and

the state are tools the ruling class can use to easily oppress the working class and, in other respects,

to maintain its own superior position (Michalowski and Bohlander 1975). As one instrumentalist

proponent wrote, "The state exists as a device for controlling the exploited class. . . . Contrary to

conventional wisdom, law instead of representing community custom is an instrument of the state

that serves the interests of the developing capitalist class" (Quinney 1977:45).

Although many Marxists initially endorsed this perspective, other Marxists and non-Marxists

said it was too simplistic (Chambliss and Seidman 1982; Greenberg 1976). The ruling class, they

said, does not always win in the legal and political arenas, contrary to what the instrumentalist view

assumes. Moreover, individuals and groups comprising the ruling class sometimes disagree among themselves over key issues. These criticisms generated two other Marxist perspectives.

The first of these is the structuralist view, which, contrary to the instrumentalist view, con- cedes that ruling-class individuals and groups sometimes disagree among themselves over important issues and compete with each other for short-term advantages. Such short-term victories may ben- efit one group at the expense of the others and may even lead to instability in the larger society. As this competition proceeds, the state and its legal system benefit from being relatively autonomous from the ruling class (Beirne 1979). This relative autonomy helps convince the public that the eco- nomic and political systems are fair and impartial.

Because the state is relatively autonomous from the ruling class, says the structuralist view, the rul- ing class is not omnipotent. This means that sometimes the working class and other "have-nots" win short-term victories. However, these victories are sham victories for two reasons: (1) they do little to change the fundamental inequality in society; and (2) they help blind the public to this inequality because, as just noted, the victories convince the public of society's fairness. In this way, the relative autonomy of the state and legal system helps preserve capitalism and serves the long-term interests of the ruling class (Poulantzas 1973). This analysis leads structuralist theorists to dismisses attempts by the have-nots to use the law to better their position as shortsighted and self-defeating (Collins 2001).

Although many Marxists favor the structuralist perspective, some criticize it for refusing to admit that any legal or political victories by the have-nots are real and effective and not just shortsighted and self-defeating (Balbus 1982; Jacobs 1980). They also say that the structuralist view is guilty of circular reasoning by assuming that any state action helps support capitalism even if it does not ap- pear to support capitalism.

The remaining Marxist perspective attempts to address the problems of the instrumentalist and structuralist views. This view, called the dialectical view or class struggle view, agrees with the struc- turalist view that the state and its legal system are relatively autonomous from the ruling class, but it

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Critical Legal Studies

Critical legal studies (CLS) is a movement that formally began in 1977 with a conference at the University of Wisconsin-Madison attended mostly by law school students and young law professors. Active in the protest movements of the 1960s and 1970s, these individuals regarded law as a key contributor to social inequality and other problems (Tushnet 2005). CLS incorporates many of the ideas we have already examined from legal realism and Marxist views on law, but it also critically addresses the nature and quality of legal education. Although CLS proponents have diverse views, several general CLS beliefs may nonetheless be identified (Trubek 1989; Unger 2015).

First, law is politics: Political views, biases, and considerations affect the creation of law, including legislative policymaking and judicial decisions and the operation of law. With this assumption, CLS joins legal realism in challenging the premise of legal formalism that law is merely logic.

Second, law is indeterminate. This means that the evidence and law in any particular case do not necessarily lead logically to any particular conclusion (as legal formalism assumed); instead, the law is sufficiently vague and even contradictory that several outcomes are possible, opening the door for politics to affect the outcome.

Third, law is ideology. In the social sciences, ideology is a term that often means a set of beliefs and values that supports the status quo (Mannheim 1936). Recall that Marx and Engels thought that law created an appearance o£justice that helped placate the working class and that structuralist Marxists make the same claim. By asserting that law is ideology, CLS proponents agree that law legitimizes the (unequal) status quo by suggesting the legal and political systems are fair, just, and impartial when, in fact, they are not.

Fourth, legal education in law school contributes to law student passivity and to social inequality in the larger society when new law school graduates go out to practice. This critique of law school and legal education aroused much controversy when it was first advanced, and Chapter 11 on the legal profes- sion explores it at greater length.

CLS scholars have applied these beliefs in many interesting studies, and an example involv- ing freedom of speech is illustrative. According to David Kairys (1990), most people believe that freedom of speech has been a hallmark of American democracy since the Constitution and Bill of Rights were enacted. This belief is a myth, he argues, because the right to free speech did not re- ally exist before the law changed between 1919 and 1940. Before this time, he observes, authorities often prohibited statements criticizing various policies. Freedom of speech developed between 1919 and 1940, thanks to that period's massive labor movement, which, among other legal victories, won an important free speech ruling from the US Supreme Court in Hague v. CIO (307 U.S. 496 [1939]). Thus, says Kairys, the Supreme Court's rulings in favor of free speech during this time are best un- derstood as responding to the political pressures exerted by the labor movement.

CLS flourished during the late 1970s and through the 1980s and often aroused heated arguments in scholarly journals and inside law schools themselves. One law school dean accused CLS law pro- fessors of being nihilists and said they have "an ethical duty to depart the law school" (Carrington 1984:227). Several CLS professors had contentious tenure proceedings. A quieter period set in after this, but CLS continues to be influential today, even if the tempers it once aroused have abated. As

40 Understanding Law and Society

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one law professor observed, "[M]ajor components of critical legal studies have become the com- mon sense of the legal academy, acknowledged to be accurate by many who would never think of identifying themselves as critical legal scholars" (Tushnet 2005:100).

Critical Race Theory

The critical legal studies movement was composed mostly of white males whose focus on law and inequality concerned social class and the economic structure. As a result, they neglected racial and gender issues. Scholars interested in these issues faulted this neglect. Many of these scholars were people of color or women, and they began developing legal theories and perspectives that took race and gender explicitly into account. Critical race theory and feminist legal theory were the two general views they developed.

Critical race theory (CRT) draws on sociology, philosophy, and several other disciplines to ex- amine the racialized nature and impact of law in the United States and other modern societies. Its main argument is that the United States is a racist society and that the law both manifests this racism ] and contributes to it (Bracey 2022; Crenshaw et al. 1996; Delgado and Stefancic 2017; Edelman et t al. 2016). For this reason, law cannot be understood without taking race into account, and race can- not be understood without taking law into account. CRT questions the common view that racism in i American society stems only from prejudiced individuals and is thus capable of being remedied through s appropriate legislation and court rulings. Racism is instead rooted, say CRT scholars, in the institutional € fabric of our society and is not easily remedied via legal means. Although CRT originated with a legal t focus, its basic understanding about racism is relevant to other social institutions. Scholars in other disci- f plines have applied these understandings to develop critical race theory analyses of education, the family, public health, and religion (Bracey 2022; Ford 2020; Lemmons and Johnson 2019; Taylor et al. 2023). p

Several legal scholars pioneered the development of CRT. Without meaning to overlook any of tc their contributions, the work of law professor Kimberle Williams Crenshaw is perhaps especially a. worth mentioning. Crenshaw coined the now-common term intersectionality to describe the v triple effects of racism, sexism, and classism on people's lives and the triple burden that low-income women of color face in American society (Crenshaw 1989, 2023b). She has also advocated for 1: change and written extensively on many issues, including racist aspects of the COVID-19 pandemic w (Crenshaw and HoSang 2023), racist aspects of police violence against both women and men (Cren- shaw2023a; Crenshaw et al. 2015b), the school discipline of Black girls that increases their chances 8- of criminal justice contact ("the school-to-prison pipeline") (Crenshaw et al. 2015a), and the racist e? foundations of many academic disciplines (Crenshaw et al. 2019). io

Despite or perhaps because of CRT's evident popularity in academic circles, it generated contro- versy in 2021 when conservative critics falsely charged that it was being taught in secondary schools to impressionable middle-schoolers and high school students. In response to this groundless claim, several states, including Florida as discussed in Chapter 1, passed laws that restricted or banned the teaching of CRT concepts in K-12 classrooms (Ray and Gibbons 2021; Sawchuck 2021).

CRT law scholars have written about many topics, but a particularly relevant line of work con- cerns the period of Reconstruction following the Civil War. This was an era dominated by racial issues, and CRT scholars have documented how these issues shaped the development of law during this time. For example, Pamela Brandwein (2000) discussed US Supreme Court rulings during Re- ot]

construction relating to the 14th Amendment, which provides "equal protection of the laws" to eve- sei

ryone. She argued that the Court's rulings were shaped by white supremacist beliefs that limited the (T help that the rulings gave to Black Americans and other citizens. In another study, Michael Elliott tie:

(1999) discussed how white people during Reconstruction felt they needed to be "all white" to be no

superior to Black people. White legislators thus enacted certain laws—for example, those banning are

Understanding Law and Society 41

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racial intermarriage—to keep the races as separate as possible and implemented legal classifications regarding who, by blood, was "white" and who was "Black." These classifications helped determine whether people were allowed to vote. (If Black, they were not allowed.)

CRT has also made a methodological contribution to law and society scholarship. It is pro- narrative, meaning that it frequently relies for its evidence on personal accounts rather than on statis- tical studies to provide rich, often searing descriptions of racism in practice. Given that many CRT scholars are people of color, they have often experienced many types of discrimination and/or know people who have experienced discrimination themselves and, for either reason, are well placed to write about these experiences.

Feminist Legal Theory

es to ex- Feminist legal theory (FLT), also known as feminist jurisprudence, is the other intellectual move- cieties. Its 4 - ment that arose because the critical legal studies movement had neglected issues of race and gender.

.this racism Paralleling the argument that CRT makes for race, FLT argues that law both reflects and contributes dehnan et to fundamental sexism in the larger society (Harbach 2020; Levit and Verchick 2016; West 2018). race can- Again, like CRT, FLT draws on several other disciplines, especially the broader field of feminist

t racism in intellectual thought, to develop its general perspective on the gendered nature of law and the legal d:through - system. It recognizes that because most of the people who make and enforce laws are men, this dtutional gender imbalance "affects in major ways how women are thought of and treated by the legal sys- th a legal tern" (Sokoloff et al. 2004:19). The title of an influential book, Women's Lives, Men's Laws, by famed

other disci- feminist legal scholar Catharine MacKinnon (2007), captures this dynamic nicely. he family, Feminist scholars differ in the extent to which they consider change possible within the existing

aal.

2023). political and economic system. Liberal feminists think change is very possible by passing legislation ok any of to addresses discrimination against women while critical feminists think such reform is too limited especially and instead "aim to fundamentally restructure private and public life and to recast relations between

vibe the women and men in political terms" (Sokoloff et al. 2004:21). -income Much FLT work is historical as there is ample evidence of sexism in American legal history. In bated for 1873, for example, the US Supreme Court ruled in Bradwell v. Illinois (83 U.S. 130 [1873]) that

demic women were not entitled to practice law The plaintiff, Myra Bradwell, was denied permission to (Cren- practice law in Illinois, even though she had met all the necessary qualifications. The Court ruled

chances 8-1 against Bradwell on the grounds that the 14th Amendment's guarantee of certain rights did not e. racist i extend to the practice of law. Joining the majority, Justice Joseph Bradley wrote a concurring opin-

ion that women were naturally unsuited to practice law: tro-

hools The civil law, as well as nature herself, has always recognized a wide difference in the respective claim, spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. ed the The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it

for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.

Reflecting the sentiments in Justice Bradley's concurring opinion, which was joined by two other justices, American law, until the past few decades, did not let women enter into contracts, serve on juries, or enjoy many other rights and responsibilities that men had long taken for granted (Thomas and Boisseau 2011). It was thought that women were simply not suited for these activi- ties and that engaging in these activities might even upset their "delicate natures" Although we now regard these notions as ridiculous and sexist, they served to reinforce women's inequality and are still accepted in some circles. For example, 13 percent of the respondents in the 2018

42 Understanding Law and Society

General Social Survey (GSS), a random sample of Americans aged 18 and older, agreed that "most

men are better suited emotionally for politics than are most women." In the 2021 GSS, 22 percent

agreed that "it is much better for everyone involved if the man is the achiever outside the home and

the woman takes care of the home and family." Since the 1970s, feminist legal scholarship and advocacy have made important contributions

to several areas of the law, perhaps most notably to the areas of family law and divorce, workplace discrimination and sexual harassment, and rape and domestic violence (Bartlett et al. 2021; Thomas 2016). However, much inequality for women continues to exist, and the legal profession and law school are not yet bastions of gender equality. Chapters 11 and 12 explore these issues further.

Summary

1. Legal formalism was popular in the 19th century and is still very influential today. Its central assumption is the belief that law is a self-contained system of logic that is independent of social and moral considerations.

2. Utilitarianism was developed during the 18th and 19th centuries by Cesasre Beccaria and Jeremy Bentham, who both thought that people act rationally and are chiefly concerned with maximizing their pleasure and reducing their pain. Beccaria and Bentham reasoned that the criminal justice sys- tem certainly needs to be punitive only to the degree that it deters people from committing crime.

3. The historical school is the name given to the work of several 19th- and early 20th-century scholars who discussed how law and legal systems changed over the centuries as societies de- veloped from ancient times to the time the scholars were writing. These scholars included Friedrich Karl von Savigny, Sir Henry Maine, Emile Durkheim, Max Weber, and Karl Marx.

4. Legal realism was a popular school of thought in the United States in the early to mid-20th cen- tury that greatly influenced the study of law and society then and now. It argued that how law really works can be very different from how it is supposed to work in theory. Key legal realists were Karl Llewellyn and Jerome Frank.

5. The school of sociological jurisprudence argued that law has social underpinnings and impact. Its two leading figures were Eugen Ehrlich and Roscoe Pound.

6. The early law and society movement generally began after World War II and involved work by anthropologists, political scientists, and sociologists. Beginning in the 1940s and especially the 1950s, political scientists pioneered sophisticated empirical studies of the decisions of justices on the US Supreme Court and on the federal appellate courts. Beginning in the 1960s, sociologists published several accounts that emphasized the lack of justice in the criminal courts for the poor and people of color.

7. Two contemporary perspectives on the study of law and society are functionalist and conflict theories. Functionalist theory sees law as helping preserve social order, make social life possible, settle disputes, protect individual freedom, and bring about needed social change. Conflict theory assumes, among other things, that law is characterized by inequality and also contributes to inequality in the larger society.

8. Several contemporary Marxist perspectives on law exist. The instrumentalist view assumes that law and the state are tools for the ruling class to oppress the working class while the structur- alist view maintains that legal or other victories by the working class are sham victories that ultimately reinforce ruling-class dominance. The dialectical view argues that these victories can indeed be real and consequential and not just sham.

9. The critical legal studies movement began in the 1970s and aroused much controversy in legal circles. Its basic beliefs are that law is political, indeterminate, and ideological and that legal edu- cation contributes to law students' passivity and to social inequality in the larger society when new law school graduates go out to practice.

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