sociology of law

Learning goals:

According to Weber, why do people obey the law?

1. Social norms become legal norms by judges determining which social norms become legal norms

a. Where do social norms come from? i. One person acts in a certain way ii. Others follow iii. Then that behavior becomes social norm

b. What motivates that one person who initiated diffusion of the behavior (or social norm)?

i. To protect their interests ii. Or as a response to a change in the external environment

c. How does a social norm become a legal norm? i. Plaintiffs/defendants and their lawyers seek to have a

social norm become a legal norm ii. The judge conditions or determines which elements of the

social norm become the legal norm d. How do judges determine which social norms become legal

norms? i. Based on the popularity of the social norm ii. Based on the new law’s relation to other existing laws iii. Based on a scientific method for determining which social

norms become legal norms 2. People obey legal norms by submitting to three types of authority

(legal-rational, traditional, charismatic)

1. Social norms become legal norms by judges determining which social norms become legal norms

a. Where do social norms come from? i. One person acts in a certain way ii. Others follow iii. Then that behavior becomes social norm

“Theoretically, the origin of legal norms might, as we have already seen, be thought of most simply in the following way: The psychological "adjustment" arising from habituation to an action causes conduct that in the beginning constituted plain habit later to be experienced as binding; then, with the awareness of the diffusion of such conduct among a plurality of individuals, it comes to be incorporated as "con- sensus" into people's semi- or wholly conscious "expectations" as to the meaningfully corresponding conduct of others. Finally these "con- sensual understandings" acquire the guaranty of coercive enforcement by which they are distinguished from mere "conventions."

Example: why do you raise your hand in class?

Not explained: So how are new laws made?

“The really decisive element has always been a new line of conduct which then results either in a change of the meaning of the existing rules of law or in the creation of new rules of law. “

Examples of new conduct: stop raising your hands…

a. What motivates that one person who initiated diffusion of the behavior (or social norm)?

iv. To protect their interests v. Or as a response to a change in the external environment

 “Several kinds of persons participate in these transformations. First we should mention those individuals who are interested in some concrete action. Such an individual may change his behavior, especially his social actions, either to protect his interests under new external conditions or simply to pro- mote them more effectively under existing conditions. …these, in turn, generate the rise of new types of customary behavior.”

Examples: a very impulsive person who does not think to raise their hand…

 “the total structure of social action changes in response to changes in external conditions, Of several kinds of action, all may have been well suited to existing conditions; but, when the conditions change one may him out to be better suited to serve the economic or social interests of the parties involved; in the process of selection it alone survives and ultimately becomes the one used by all so that one cannot well point out any single individual who would have "changed" his conduct.’

Examples: the teacher does not call on people with their hand raised, so the class stops raising their hand

“The parties to the new arrangements are frequently unconcerned about the fact that their respective positions are insecure in the sense of being legally unenforceable.”

“prior even to the regulated enforcement of norms … the function later fulfilled by the "legal" guarantee of a norm was undoubtedly performed by the general convention that the person who was admittedly "in the right" could find others who would help him against an offender”

a. How does a social norm become a legal norm? i. Plaintiffs/defendants and their lawyers seek to have

a social norm become a legal norm ii. The judge conditions or determines which elements

of the social norm become the legal norm

“While changes in the meaning of the prevailing law are thus initiated by the parties or their professional counselors, they are consciously and rationally adapted to the expected reaction of the judiciary.”

Examples:

Some famous supreme cases

Brown vs Board of Education

https://www.youtube.com/watch?v=TTGHLdr-iak

Roe vs. Wade

https://www.youtube.com/watch?v=9HZj8Qp4p2A&t=64s

Citizens United

https://www.youtube.com/watch?v=68wHngd9nYc

How do judges determine which social norms become legal norms?

1. Based on the popularity of the social norm

“the spread of consensual and rational agreements of a certain type naturally exercises a marked influence upon the probability of their coercive enforcement by the law.”

The more widespread is a norm the greater probability that it would become legally enforceable

2. Based on the new law’s relation to other existing laws

“But even in more normal cases the judge is doing more than merely placing his seal upon norms which would already have been binding by

consensual understanding or agreement. His decision of individual cases always produces consequences which, acting beyond the scope of the case, in- fluence the selection of those rules which are to survive as law.”

“The decisions of lay judges, too, require a long development and much travail to reach the idea that they represent "norms" going beyond the individual case”

3. Based on a scientific method for determining which social norms become legal norms

“There also exists another intrinsic element. Obviously, it is difficult, and often impossible, for a judge who wishes to avoid the charge of bias to disregard in a later case a norm which he has consciously used as his maxim in an earlier similar decision, and to deny his power of enforcement when he has once granted it before”

“New legal norms thus have two primary sources, viz., first, the standardization of certain consensual understandings, especially pur- posive agreements, which are made with increasing deliberateness by individuals who, aided by professional "counsel," thereby demarcate their respective spheres of interest; and, second, judicial precedent In this way, for example, most of English common law developed.* The ex- tensive participation in the process of juridically experienced and trained experts, who to an ever increasing degree devoted themselves "pro- fessionally" to the tasks of "counsel" or judge, has placed the stamp of "lawyers' law" upon the type of law thus created.”

Examples?

“There is not excluded, of course, the role played in the development of the law by purely "emotional" factors, such as the so-called "sense of justice." Experience shows, however, that the "sense of justice" is very unstable unless it is firmly guided by the pragma of objective or sub- jective interests.”

What is the role of “justice” in the formation of legal norms?

2. People obey legal norms by submitting to three types of authority (legal- rational, traditional, charismatic)

Politics as a Vocation

Politics = matters of the state and governance

“Ultimately, one can define the modern state sociologically only in terms of the specific means peculiar to it, as to every political association, namely, the use of physical force.”

“Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. Note that 'territory' is one of the characteristics of the state.”

https://www.youtube.com/watch?v=e9yK1QndJSM

“The state is considered the sole source of the 'right' to use violence. Hence, 'politics' for us means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.”

“the state is a relation of men dominating men, a relation supported by means of legitimate (i.e. considered to be legitimate) violence. If the state is to exist, the dominated must obey the authority claimed by the powers that be. When and why do men obey? Upon what inner justifications and upon what external means does this domination rest?”

To begin with, in principle, there are three inner justifications, hence basic legitimations of domination.

First, the authority of the 'eternal yesterday,' i.e. of the mores sanctified through the unimaginably ancient recognition and habitual orientation to conform. This is 'traditional' domination.

Examples?

There is the authority of the extraordinary and personal gift of grace (charisma), the absolutely personal devotion and personal confidence in revelation, heroism, or other qualities of individual leadership. This is 'charismatic' domination, as exercised by the prophet or--in the field of

politics--by the elected war lord, the plebiscitarian ruler, the great demagogue, or the political party leader.

Examples?

Finally, there is domination by virtue of 'legality,' by virtue of the belief in the validity of legal statute and functional 'competence' based on rationally created rules. In this case, obedience is expected in discharging statutory obligations. This is domination as exercised by the modern 'servant of the state' and by all those bearers of power who in this respect resemble him.

Examples?

In-class activity

The three authority types are pure or ideal, and in reality people — and the positions of power they occupy — usually contain some combination of all three types of authority.

Three generic examples. A policeman would be high on rational-legal authority, a priest would be high on traditional authority, and a used car salesman would have almost none of these authority types but would still exercise their will over others through charisma. An Army drill sergeant in the middle of the triangle as that position of authority stereotypically has an equal amount of each type of authority.

1. Work with your partners to place the following people on the triangle

Jay-z Joe Loughran Oprah Andrew Yang

Hitler Hillary Clinton Donald Trump Kim Kardashian

Michelle Obama Cory Booker Steve Jobs Karl Marx

2. Work with you partners to come up with 5 more and place them in the triangle.

3. Take a picture of your work and upload the file to blackboard under the folder ‘in class activities’