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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.


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.


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

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.

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

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”

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.

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/

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.

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

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

NO SINGLE THEORY EXPLAINS SOCIETY AND LAW; rather, there are many theoretical approaches to these two vast and interrelated topics. Some of these approaches are opposed to one another; others overlap and are combined to explain various aspects of law in society. In this chapter, we consider several historical and contemporary theoretical perspectives on society and law. However, this chapter is by no means comprehensive. It provides a survey or overview of important theories in the field, many of which are discussed in other parts of this book. The focus of this chapter is on how the study of society and law emerged to examine the shift from traditional, premodern social organizations to modern, industrial societies. I also look at recent theoretical contributions to the study of law in society and in our everyday lives.
Formal, codified law emerges as societies grow in size and complexity. Historically, the development of legal systems and the process of modernization—including industrialization, urbanization, democratization, and stratification—are closely linked throughout the world. Legal structures emerge when the social structure of a given society becomes so complex that traditional regulatory mechanisms including folkways and norms, as well as other traditional methods of settling disputes, such as small-town hall meetings, no longer suffice. When societies can no longer depend on informal customs, mores, and conventions, nor can they call upon community, religious, or moral sanctions to regulate social life, people begin to construct formal legal structures to address social problems and keep citizens safe from harm, to control citizens, and to settle disputes between and among citizens. Formal and institutionalized regulatory mechanisms arise when other methods of controlling people’s behavior are no longer sufficient.
Modernization and the Expansion of Law
Several interrelated and sweeping social transformations that emerged in the late eighteenth and the early nineteenth century necessitated changes in the number of laws and in the shape and importance of legal structures in different societies. The Industrial Revolution and the rise of capitalism, the process of urbanization, political revolutions and the democratization of the United States, France and elsewhere in Europe prompted social change in every area of social life. This brought about the need for new laws and entire legal systems to deal with modern social problems.
The Industrial Revolution
The Industrial Revolution began in the mid- to late-1700s and was in full swing by the mid-1800s. Industrialization first took hold in England and is still spreading globally. An industrial society depends on mechanization, or mechanical sources of power, to produce goods. Industrial societies are driven by inventions that facilitate new forms of agriculture and the production of goods and services. Industries also rely on new sources of energy, such as steam and gasoline. In the shift from farm-based, agrarian economies to those driven by manufacturing and mechanization, many societies experienced irrevocable shifts to new social relations and social structures. These changes affected every aspect of life: work, religion, family and child-rearing, homes, and schooling. The shift occurred very rapidly and in ways that must have seemed unrecognizable to those caught up in the massive changes. And, the law stepped into people’s lives in ways that were completely new and increasingly pervasive.
Capitalism as a new economic system drove industrialization. In capitalist systems, factories, raw material, land, and tools are held in the hands of a relative few whose primary goal is to accumulate and expand their capital. Capitalism involves an owning class, the capitalists and a working class, the laborers. The working class, who own nothing but their labor, must exchange their ability to work for a wage. Under capitalism commodity is king. A commodity is any item: a tool, a stand of trees, or a cotton gin that can be exchanged for money. Therefore, in a capitalist economy labor power itself is a commodity. The capitalist brings together several commodities including the means of production, the raw materials, the laborers, and the machinery, to make something of greater value than each of those items is worth individually. With mechanization, goods can be mass produced. The owners of capital expand their holdings—they own more wealth and increasingly expand their production further.
Directly linked to the Industrial Revolution is the process of urbanization —the development of cities. Urbanization involves the wide-scale movement of people from rural, agrarian areas of the country to developing metropolitan hubs. Urbanization began long before the Industrial Revolution and dates back to the Middle Ages and the growth of early European cities. With industrialization, people in large numbers moved in search of paid employment, or wage labor, involved in the mass production of goods and rendering of services. Urban areas tend to be more diverse and heterogeneous than traditional, agricultural-based communities. They are more densely populated, and they present different social problems and challenges that call for centralized legal structures.
Political Revolutions and the Rise of Democracy in the United States (1775–1783), France (1787–1799), and Other Parts of Europe
Democracy simply means government by the people—rule by the citizens for the citizens. No two democracies are alike. The American Revolution of 1775–1783 gave rise to rapid and irrevocable social changes, which necessitated laws to address new social relations under a newly formed democracy. The establishment of individual rights, liberties, and the pursuit of happiness took priority and replaced the rule of the monarchy. In order to establish a newly independent nation, and state governments for the 13 original colonies, law proliferated. Law was called upon to establish territories and trade regulations, to institute property and tax rules, to build and maintain an independent army, and to generally formalize and codify what it meant to be an independent nation. These vast changes permeated all aspects of public and domestic life.
Many leaders of the French Revolution admired the American Declaration of Independence and drew inspiration from it. The French also participated in and supported the American fight for independence. In France, with the toppling of the French monarchy in 1789, changes proved to be so rapid that some social theorists, such as Friedrich Karl von Savigny an eighteenth- century legal scholar and August Comte, the so-called father of sociology, feared that chaos would replace the rule of the monarchy (Rodes 2004; Schaefer 2011). France was the most populated country in Europe at the time. The profligate spending of King Louis XVI brought the country to the brink of bankruptcy, and urban poor and rural peasants like were dying of hunger due to droughts, poor harvests, and soaring food prices. The French Revolution had many causes, but it was influenced by the American Revolution and by philosophers of the Enlightenment as well as scholars of law and government, such as Jean-Jacques Rousseau (1712–1778), Montesquieu (1689–1755), and Voltaire (1694–1778), all of whom emphasized individualism, as well as reason, logic, and science over tradition and religion.
Taken together, these major historical changes make up the process of modernization: the shift from traditional, agrarian-based economies to modern, industrial-based economic structures in which democracy prevailed. This massive, tumultuous period also saw the rise of modern systems of law.
These major transformations occurred rapidly and caused people to think about the social world in new ways. Several new academic fields of study emerged during this period of modernization to grapple with and explain the massive social changes under way. Sociology developed to study the effects of modernization on the social structure and social relationships, and to try to understand social problems, the family, immigration, and racial and ethnic relations. Out of the larger field of sociology came demography: the study of population growth and transformations. Criminology and sociolegal studies emerged to study new issues related to law-making, lawbreaking, and the social consequences of both.
Traditional Legal Systems
“To understand law one must view it in its social context and not as something which can be described by the analysis of a sample, however large, of cases alone” (Nader 1964:408).
Traditional or primitive legal systems are found in hunting and gathering societies as well as some simple, subsistence farming communities. The word “primitive” as used here means in the early stages of development. In traditional or primitive legal systems, there are some distinctions made between substantive law and procedural law. Substantive law addresses rights, duties, and prohibitions. Procedural law considers how law is to be administered, enforced, and changed over time. In traditional legal structures, judges are typically village chiefs, elders or religious leaders, or even people who community members see as capable legal listeners (Nader 1964). Courts might be held in town hall-like structures or they can be temporary; they are set up to address legal issues and then dispersed after the matter is settled (Nader 1964, 1965).
In traditional societies, no strict separation exists between law and religious beliefs. Laws are typically not written and are intertwined with customs, traditions, religious and spiritual beliefs, and ancient norms. Law is called upon to settle disputes, to coordinate social relationships, to control behavior, and to enforce kinship and other rules (Nader 1965; Hoebel 1954).
Transitional Legal Systems
Transitional legal systems are found in advanced agrarian and early industrial societies where the economic, educational, and political systems are increasingly separated from kinship relationships (Vago 2012). In transitional legal systems, there are basic legal structures including:
· Some written laws
· Courts
· Enforcement agencies
· Legislative structures
· Public/Private law distinctions
· Criminal law distinguished from torts (private wrongs)
· Procedural/substantive distinction.
But these structures are newly established and not as advanced and specialized as law under modern, industrialized nations. Transitional legal systems can take many shapes and forms; they are by definition transitory and thus are often unstable, as with the socialist legal systems discussed in the previous chapter. In addition, postcrisis transitional legal systems can arise anywhere in the world after wars or significant conflict. For instance, in 1999, both East Timor and Kosovo emerged from horrifying conflicts.
In 1999, the Balkan country now known as Kosovo emerged from widespread and brutal ethnic cleansing campaigns by Serbian and Yugoslavia militia forces. In the same year, in the Southeast Asian state of East Timor, a vote for the country’s independence from Indonesia after decades of brutal occupation sparked a campaign of “killing, burning, and looting” by forces that supported the integration of East Timor into Indonesia (Strohmeyer 2001). In both cases, the United Nations was called upon to quickly build transitional legal systems to fill the voids that years of conflict had opened. The transitional legal systems were called upon to restore order and to set each region on a path to nation-building (Strohmeyer 2001). Both cases highlight the importance of clearly defined legal systems, even if they are transitional and somewhat rudimentary. As legal scholar and humanitarian Hansjöerg Strohmeyer said of both regions:

The experiences of the United Nations in Kosovo and East Timor have shown that the reestablishment, at a minimum, of basic judicial functions— comprising all segments of the justice sector—must be among a mission’s top priorities from the earliest stages of deployment. Indeed, the absence of a functioning judicial system can adversely affect both the short- and long-term objective of peace-building efforts, including the restoration of political stability necessary for the development of democratic institutions, the establishment of an atmosphere of confidence necessary for the return of refugees, the latitude to provide humanitarian assistance, the implementation of development and reconstruction programs, and the development and reconstruction of an environment friendly to foreign investment and economic development. The lack of adequate law enforcement and the failure to remove criminal offenders can inevitably affect both the authority of the mission and the local population’s willingness to respect the rule of law. (2001:60)
This excerpt illustrates the importance of examining the social context in which legal systems are constructed. A legal system born of brutal conflict and built by an outside body—such as the United Nations—looks quite different to one that has evolved over years of relative stability. The passage also highlights the importance of legal structures in bringing about stability and promoting the rule of law. Finally, Strohmeyer shows that formal, codified law must be backed by adequate law enforcement and sanctions for it to hold up in extremely difficult and contentious circumstances.
Modern Legal Systems
Modern legal systems contain all of the structural features of transitional systems but in greater numbers and in more complex, specialized arrangements. In modern societies, law grows in size, and it grows increasingly centralized and bureaucratized.
· There is a proliferation of public and procedural laws (or administrative law).
· Statutory law becomes more important than common law.
· Legislation becomes a more acceptable method of adjusting law to social conditions.
· There are clear hierarchies of laws and courts, from local/regional to constitutional law.
· Courts become more important and are used with increased frequency.
· The legal profession becomes more centralized and credentialized with licenses (e.g., the American Bar Association as credential-granter).
· Police forces are large and differentiated: town, county/parish, state, Federal (e.g., Federal Bureau of Investigation).
· Additional regulatory agencies emerge and proliferate, such as: the Food and Drug Administration, the Environmental Protection Agency, the Federal Trade Commission, Occupational Safety and Health Administration.
In modern legal systems, the rule of law prevails, and rules and regulations apply to everyone. Rights and duties stem from transactions or contracts, and legal norms are universal. Ideally, the law should be predictable, uniform, impersonal, and rational. Law is separated from religion and belief systems, kinship groups, and the monarchy. The nation-state administers law, and legislative, judicial, and executive functions are separate and distinct in modern law.
As law was growing and changing in the process of modernization, theories of law and society also emerged and proliferated. These theories attempt to answer questions about the development of law in different societies, the various functions of law in societies, how law changes over time, and who benefits from laws and legal structures.
Early European Scholars of Law
For centuries in Europe, law was considered to be an absolute and autonomous entity unrelated to the social structure in which it existed (Deflem 2008). This idea was based on the notion of natural law —law viewed as a universal entity, applicable to all humans. The origins of natural law are traced back to ancient Greece. Aristotle maintained that natural law had a universal validity based on pure reason, free of passion, and subjectivity. St. Thomas Aquinas saw natural law as part of human nature and the way in which rational humans participate in the eternal laws of God (Vago 2012).
The idea of natural law is based on the assumption that, through reason, the nature of human beings can be known and that this knowledge can provide the basis for the social and legal ordering of human existence. Natural law is considered superior to law enacted by humans. Under the influence of natural law many European scholars believed that law in any given society was a reflection of a universally valid set of legal principles, and not socially constructed by humans (Deflem 2008).
Starting in the mid-eighteenth century, and through the mid-nineteenth century, the idea of natural law was called into question and largely displaced by evolutionary interpretations of law and legal positivism. Legal positivism is a scientific approach to law that examines objective social conditions, such as how culture and religious beliefs affect legal norms. Early European scholars of law and society employed legal positivism to make sense of the law as a human construction and not as a universally given set of standards. Legal positivism asserts that the law can be studied as any subject can be studied—through careful examination, collection of data, and theorizing.
Baron de Montesquieu (1689–1755)
Charles-Louis de Secondat, Baron de Montesquieu was a parliamentarian in Bordeaux, France, who argued against the absolutism of the French monarchy and also challenged the notion of absolute natural law. He believed that legal structures should be specific to a society’s culture. Law must fit within its surroundings. He wrote The Spirit of Laws (1748) in which he argued that law results from a number of social and cultural factors such as customs, the economy, and the physical environment—the climate and the soil on which it stands (Vile 1998).
Montesquieu is most famous for his doctrine of the separation of powers: the legislative branch enacts new laws, the judicial branch interprets the laws, and the executive branch enforces and administers laws (Deflem 2008). While there is some debate over who first introduced the notion of the separation of powers, Montesquieu’s name is most often associated with this important doctrine and he contributed significant ideas that lent to its longevity and power (Vile 1998).
In The Spirit of Laws, Montesquieu famously said, “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go” (1748, Book 11:4). For Montesquieu, the separation of powers is necessary in a democracy wherein power should not become too centralized. Arranging law into three separate branches of governance kept the system in check and allowed for specialization within each branch.
Herbert Spencer (1820–1903)
Herbert Spencer was an English railway engineer turned social theorist of the mid- to late-1800s. His ideas were perhaps more popular in the United States than in his home country. In his book, Social Darwinism in American Thought, Richard Hofstadter points out that “England gave Darwin to the world, but the United States gave to Darwinism an unusually quick and sympathetic reception … thinkers of the Darwinian era seized upon the new theory and attempted to sound its meaning for several social disciplines” (1969:4–5). The same could be said of Herbert Spencer.
Darwin’s On the Origin of the Species was first published in 1859, and from that point on, popular magazines such as Appleton’s Journal, Popular Science Monthly, and The Atlantic Monthly, as well as daily newspapers, published articles on natural selection and Darwinism (Darwin 1859; Hofstadter 1969:18–22). Spencer was strongly influenced by the evolutionary theories of Charles Darwin, so much so that he became known as a social Darwinist. Some argue that Darwin may have been influenced by Spencer. However, Spencer’s social evolutionary ideas were circulated years before Darwin published On the Origin of the Species (Shapin 2007). While often attributed to Darwin, Spencer introduced the phrase, “survival of the fittest” (Howerth 1917:253). Spencer believed that societies evolve from primitive, barbaric forms to civilized social orders along natural, evolutionary stages. Spencer embraced social evolutionary theory and saw it operating everywhere—in the development of societies, of governments and commerce, in language and literature, in science and art (Shapin 2007). The language of evolution, progress, and natural selection—and Herbert Spencer’s adage “survival of the fittest” —proliferated in subjects “quite remote from science” and became “a standard feature of the [American] folklore of individualism” (Hofstadter 1969:3–4, 50).
Spencer traveled to New York City in the 1880s as a guest of Andrew Carnegie, the Scottish-American steel tycoon and philanthropist. Carnegie saw Spencer as a friend but also a guru of sorts. Spencer’s unyielding belief in laissez-faire capitalism was embraced by Carnegie and other American captains of industry because their success appeared as “natural”—or preordained.
Spencer believed in the free will of individuals above all else. Any effort to regulate industry or aid the poor would only interrupt the natural order of things. In Spencer’s words, “idiots, imbeciles, lunatics, paupers, and prostitutes” would only proliferate and tax societal resources (Spencer 1884:132). Welfare degraded morals and overall fitness because it encouraged dependency.
While Andrew Carnegie has been called the father of American philanthropy (Theroux 2011), he did not believe in giving money to those he deemed unworthy, or unfit in Spencerian terms. He donated only to what he considered worthy causes, such as public libraries and educational foundations that could help people better themselves.
Spencer was a proponent of unregulated economic competition. He opposed most forms of public intervention into social problems; he believed they only interrupted evolutionary progress. Spencer argued that laws should uphold individual rights and the rights to private property. The law should not be seen as an equalizer in the survival of the fittest. Rules, regulations, and laws should be kept to minimum to allow the steady march of evolutionary progress in all aspects of society.
Sir Henry Sumner Maine (1822–1888)
Also influenced by evolutionary theory, legal scholar Sir Henry Sumner Maine was born in Scotland and died in Cannes, France. In his most famous work, Ancient Law, Maine was one of the first scholars to emphasize the study of law through history and historical methodologies (1861). In historical studies of different types of law, Maine saw the growth of the rights of individuals over the rights of the family, group, or community. This, he believed, was a basic component of the development of societies. Maine also saw the importance of the contract over customs and traditions. He viewed this progression as an evolutionary shift from status to contract (Sutton 2001).
While influential, Maine’s sociolegal theories have been criticized for assuming that all legal systems will develop along the same path and through the same stages as Western, developed law (Sutton 2001). His bias toward the type of modern legal system enjoyed by people of free will and individual rights may have prejudiced his view of less-developed, traditional legal systems.

Classical Sociological Theories of Society and Law: Durkheim, Marx, and Weber
Sociology as a distinct discipline emerged in Europe in the early 1800s, a time when societies saw vast social changes and social upheaval related to the processes of modernization. French philosopher August Comte (1798– 1857) is often credited with being the father of sociology since he first coined the term. For Comte, a positivist, sociology was the scientific study of society (Schaefer 2011). He believed that societies could be improved and made more stable by careful observation, examination, comparison, descriptive study, and experimentation.
Sociological discussions of law in society typically fall into two categories of macro-level conceptions: the consensus perspective and the conflict perspective.
While this dichotomy between the two main paradigms is not exhaustive—it does not include all sociological approaches to society and law—it is a useful conceptual framework in which to view sociological theories. In other chapters of this book, I will discuss different theoretical approaches to laws, such as symbolical interactionism, and social constructionism will be covered in Chapter 5: Lawmaking and the Social Construction of Laws.
Emile Durkheim (1858–1917)
In sociological terminology, Durkheim was a consensus theorist, or a structural functionalist sociologist. Durkheim contributed a methodology for studying changes in social institutions and the larger social order. Influenced by Auguste Comte, Durkheim used a positivist approach —a scientific, rational approach to the social world—and was interested in establishing causality, in showing that one variable causes another to change. For instance, as societies grow in size, they also grow in complexity. Durkheim saw this as a social fact —an underlying pattern of social organization and moral beliefs that shapes our expectations of one another. Social facts are also reproduced through social institutions such as government, courts, and education. Durkheim believed the law performs several vital functions in society and as societies increase in complexity, law becomes more important, more pervasive, and increasingly differentiated and specialized.
Durkheim outlined his ideas about society and law in his book, The Division of Labor in Society ([1893] 1984). He viewed law as a measure of the type of solidarity found in society. Solidarity for Durkheim meant the persistent and ongoing expectations that people establish with one another that allow them to take their social world for granted. It is rooted in repetitive patterns of association in families, workplaces, and in the marketplace, as in a small, traditional village.
Repressive law in traditional society revolves around punishing the criminal for the crime but also for the harm caused to the social order—the collective conscience of society (Sutton 2001). Restitutive law corresponds to modern, industrialized societies. Durkheim viewed restitutive law as restorative, as bringing back social order and group cohesion after the upset of the crime (Sutton 2001).
Durkheim’s distinction between mechanical and organic solidarity and repressive and restitutive law is not a strict dichotomy. Even today, in our modern, complex society, we seem to move more and more toward repressive forms of law and punishment. We imprison over two million people, often without any significant chance at rehabilitation; we treat juveniles as adults; we get tougher and tougher on crime. Many states still execute offenders. In other words, as with the earlier work of Sir Henry Sumner Maine, this seemingly clear, evolutionary progression from repressive to restitutive legal systems is perhaps not so clear and stage-like. Laura Nader’s anthropological work on law in a traditional Zapotec village illustrates that restitutive law can be found in traditional communities and that repressive forms of law can be found in modern societies, such as our own punitive system (Nader 1964). As Durkheim himself wrote, “ … the essential elements of punishments are the same as they were in primitive societies. Punishment has remained, at least in part, a work of vengeance” (Thompson 1995:78).
In the United States, the juvenile justice system began over 100 years ago as a way to separate juvenile offenders from the adult population. The goal was to treat young offenders as capable of rehabilitation. Because of their youth, they were thought to be more amenable to rehabilitation and change. However, in the latter part of the twentieth century and into the twenty-first century, our societal approach has grown more repressive, treating children as young as 13, 14, and 15 as adults in the adult court systems and adult prisons (Ecenbarger 2012). Recently, we have seen a bit of a sea change back to the idea that young offenders must be treated differently. For example, several states have overturned life sentences without parole for juvenile offenders. Therefore, Durkheim’s idea that as societies evolve and become more advanced they also grow more rehabilitative and reform-minded. This does not prove to be the case in many aspects of the U.S. criminal and juvenile justice systems.
Karl Marx (1818–1883)
Karl Marx studied law and literature at German universities. He was a philosopher, political economist, and historian, and has been claimed by sociologists as one of their own. Marx focused on the economic structure of societies and the modes of production of commodities—anything deemed valuable by society. Law is rooted in the material, economic forces of society. Marx’s approach to law and society can be briefly summarized as follows:
· Law is the product of evolving economic forces.
· Law is a tool used by the ruling class to maintain its property and its power over the lower classes.
· In a true communist view of law, the idea of law as an instrument of social control will no longer be necessary and will eventually fall away.
To quote Marx and his coauthor, Friedrich Engels, in the Communist Manifesto [1848] 1993, “Your jurisprudence is but the will of your class made into the law for all, a will whose essential character and direction are determined by the economic conditions of your class” (p. 25). Marx’s critical approach to law is rooted in a concern with freeing people from the burdens of unnecessary labor, poor material conditions of life, and patterns of thought that block their understanding of, and participation in, shaping their lives.
Marx focused on how law constructs social relations that separate people from one another, allowing for the exercise of power by those who own and control the resources over the people who work with those resources to make commodities (Marx and Engels [1848] 1993). Law defines and supports social classes on the basis of property, contracts, and their relationship to the means of production. Contracts and property are two main legal concepts under capitalism:
1. Contracts are written agreements between the owners and the workers and between the purchasers and the sellers of products. Contracts can also regulate relations between and among businesses.
2. Property is essential for capitalism to exist. Property is a relationship—a person or corporation owns a commodity, an item of value. Property must enhance in value; it must be exchanged. Property laws are enforced by the state to protect those who own it against those who do not.
Marx’s influence on law and society can still be seen in critical studies of the sociology of law. For instance, William Chambliss’ “A Sociological Analysis of the Law of Vagrancy” exemplifies a Marxist, conflict perspective (Chambliss 2004). Chambliss studied how vagrancy—homelessness in today’s terminology—laws facilitated cheap labor for wealthy landowners during the period in England when the system of serfdom was collapsing. The first vagrancy law, passed in 1349, threatened criminal punishment for all those who were able-bodied and yet unemployed. The poor were forced to accept employment at a low wage or go to prison. The wealthy landowners were ensured an adequate supply of labor at cheap wages. Similar laws were passed to keep the poor and unemployed out of areas where labor was not needed so that certain areas, townships, or boroughs would not have to pay for alms for the poor—any form of welfare or social services for those in need (Chambliss 2004). Chambliss’ study of vagrancy laws is one example among many illustrating Marx’s influence on contemporary studies of society and law.
Max Weber (1864–1920)
Max Weber, also a German professor of economics, is most often placed in the conflict paradigm within sociology. Weber played a crucial role in the development of sociology as a distinct discipline and field of study. We have already discussed some of Weber’s contributions to the study of law in Chapter 1, but his influence on the sociology of law bears further consideration here.
An important aspect of Weber’s approach to the study of society and law is his distinction between rational versus irrational dimensions of law, along with his distinction between substantive and formal dimensions of law. These terms are based on Weber’s notion of ideal types, or a conceptual framework or inventory of concepts describing the phenomenon being studied. Using Weber’s two basic dimensions of law, we can classify legal decision-making from least rational to most rational. In addition, formality is the independence of legal institutions and procedures from all other social institutions, such as religion, family, politics, and economics. Substantive law is the opposite of formal law; it is tied either to a political order or a moral religious order. It is not autonomous and independent (Sutton 2001).
Rationality is the reliance on specifically legal principles and rules for making decisions that are logically applied to particular cases. Rational law requires the highest degree of institutional, procedural, and intellectual independence of law (Sutton 2001).

Rationality is:

· Systematically organized
· Rule-bound
· Based on logical interpretation of meaning
· Oriented toward intellectual pursuits of the truth.

Irrationality is:

· Not systematic
· Not written
· Based on customs, religious beliefs, or folk wisdom
Using formality and rationality, Weber constructed four types of law that can be used to analyze various legal system.
Weber has proven so influential to the study of law and society that some even consider him the founding father of the sociology of law (Deflem 2008). His typologies of law, methodological frameworks for the study of law, and theories about the roles of law in modern society provide rich intellectual ground that scholars are still sowing and reaping.
Sociolegal Theorists
Sociolegal theories are schools of thought within jurisprudence, the scientific study of law, that view law as integral to social life. For sociolegal theorists, law cannot be understood apart from the realities of social life. These theories are heavily influenced by the social sciences, most notably sociology, economics, and social psychology.
Albert Venn Dicey (1835–1922)
Albert Venn Dicey was an Oxford-educated English sociolegal scholar from a wealthy background. Dicey is best known for his doctrine of the rule of law.
In Dicey’s Rule of Law:
1. No one is punishable except for a distinct breach of law and therefore the rule of law is not arbitrary.
2. The rule of law means total subjection of all classes to the law of the land, as administered by the court.
3. Individual rights derive from precedents rather than from constitutional codes (Vago 2012:52).
In 1905, Dicey published Lectures on the Relation between Law and Public Opinion in England During the Nineteenth Century, which explored his ideas about the role of public opinion in shaping law and how citizens can take part in public life and even shape public policy (1905). He argued that public opinion tends to change slowly and the law should do so as well.
Oliver Wendell Holmes, Jr. (1841–1935)
Oliver Wendell Holmes, Jr. was Boston-born and bred. He attended Harvard Law School and then taught there as a professor. He was appointed to the Supreme Court in 1902 and remained there for three decades, making him unique at the time because he was a scholar of law before he was appointed as a Supreme Court Justice (Sutton 2001). Wendell Holmes was one of the founders of legal realism, a school of thought that argues that laws should be grounded in reality and should benefit the larger society. 

Basic Tenets of Legal Realism
· Judges are responsible for formulating law, rather than just finding it in the law books.
· Judges make decisions based on what is right and just, before sorting through legal precedents, which can be found to support almost any decision.
· Values, personal background, and preferences are part of the process of legal decision-making.
· Judges must know the historical, economic, and political aspects of the law in order to fulfill his/her functions.
· There is no absolute certainty in the law (Holmes 1897).
Holmes argued for legal pragmatism, meaning he believed the law only made sense if it worked in its practical applications. Laws are enacted by human beings for human beings and therefore must make sense in their daily lives.
E. Adamson Hoebel (1906–1993)
1. Adamson Hoebel was born in Madison, Wisconsin, and attended the University of Wisconsin as an undergraduate. He earned his master’s degree at New York University and his PhD from Columbia in the field of anthropology. Hoebel was president of the American Anthropological Association and was very influential in the field of anthropology of law and in the study of native North American groups. He wrote The Law of Primitive Man (1954) in which he noted that there is no straight line of development in the growth of law, unlike Spencer, Durkheim, and other previous theorists. For Hoebel, the law does not evolve in a simple linear, progressive fashion. Further, he was one of the first legal scholars to illustrate that law exists in even simple, primitive societies. Hoebel argued that the law does change and moves through stages, which are not arranged along a singular, evolutionary line. Legal systems grow out of the needs of the structure in which they are found (Hoebel 1954).
Hoebel outlined the following societies and corresponding legal systems:
· Lower Primitive Societies, hunter-gatherer societies:
· Face-to-face relations
· Ridicule, taboo, and fear as forms of social control
· Physical violence as sanctions.
More Organized Hunter-Gatherer Societies with some settled agriculture (transitional societies):
· Size increases → Complexity increases
· Divergent interests → Conflict, tensions arise
· Private law emerges and spreads
· Tribes or groups develop hierarchies of power and authority (based on hereditary lines).
Gardening and Agriculturally Based Tribes (later transitional):
· Larger groups, societies
· Elaboration of law—more laws emerge and law grows in complexity
· Face-to-face interactions are not possible with all members of a society
· Many competing interests
· Allocations of rights, duties, privileges, powers, property (Hoebel 1954:316–319).
While these societies are arranged in increasing complexity, for Hoebel this is not a stage-like, linear progression. The trend of law is one of increasing growth and complexity in which the tendency is to shift the imposition of legal sanctions from the individual to the kinship group and then eventually to the larger community and then society. However, this does not mean that various systems are not found within a given society, there is overlap (Hoebel 1954).
Donald Black (1941–)
Donald Black is a contemporary sociolegal theorist. He received his doctorate in sociology at the University of Michigan in 1968. Black has taught at both Harvard and Yale law schools and now works as a professor of social sciences at the University of Virginia. His most notable books are: Sociological Injustice (1989), The Behavior of Law ([1976] 2010), and The Social Structure of Right and Wrong (1993). Black wrote, “Law is governmental social control” (1976:2). In his theoretical approach, he divided the law into four styles: penal, compensatory, therapeutic, and conciliatory. The first two, penal and compensatory, are adversarial forms of law with a winning and losing party. The second two, therapeutic and conciliatory, Black (1976) termed remedial. They help sort out or ameliorate social problems.
Elements of two or more of these styles may appear in a particular case, such as a drug addict convicted of possession and sentenced to jail time (penal law) who may also be granted probation contingent upon a attending a rehabilitation program (therapeutic).
Like Hoebel, Black’s research involves cross-cultural analyses of laws in different societies. Black views law as a quantitative variable—it can be measured objectively by the frequency with which statutes are enacted, regulations are issued, complaints are made, offenses are prosecuted, and damages are awarded; punishment is meted out in a given society (Vago 2012). The law’s quantity varies from society to society and from historical period to historical period.
Modern, stratified societies possess more law than simple societies. Wealthy people have more access to the law than poor people and make use of it more frequently, and the poor are more often punished by the law. According to Black, all of these social issues can be measured quantitatively. Black also believes that law is a social process that is inherently biased. Differences in social status affect law at every turn, not just in terms of who is punished but also with regard to how lawyers are perceived, how jurors interact, and who has access to the legal process. Bias and prejudice are inherent in these social processes.
Since he viewed law as quantifiable, Black developed several propositions that explain the shape, quantity, direction, and style of law using five variables of social life:
· Morphology: shape of society—the aspects of social life that can be measured by social differentiation or degree of interdependence, e.g., division of labor
· Stratification: inequalities of wealth, power, privilege
· Culture: the symbolic aspect of social life—ideas, beliefs, etc.,
· Organization: capacity for collective action, degrees of centralized governance, economy
· Social Control: the normative aspects of society—how society responds to deviant behavior (Vago 2012).
According to Black, all of these elements of law are quantifiable and can be measured and studied as discreet variables using a scientific, positivist approach.
Today there are many approaches to the study of society and law that draw influence and inspiration from earlier theorists discussed in this chapter. Each of these new approaches advances our knowledge of law in society while providing critique and pushing law and legal scholarship to do more in bringing about positive social changes. Among these are: providing more access to the law for poor and minority groups, guaranteeing equality before the law for all individuals, and recognizing the injustices that have been perpetrated in the name of law.
Critical Legal Studies (CLS)
The emergence of the new field of Critical Legal Studies, or CLS, is traced back to Yale Law School faculty and students of the 1960s. CLS is influenced by Marxism and legal realism. CLS scholars are critical of the power of law and the monopoly over the law that the American Bar Association and other professional organizations have in controlling expertise, accreditation and access to legal education.
Roberto Mangabeira Unger is a leading critical legal scholar. He teaches at Harvard Law School, where he is one of the youngest professors ever to have received tenure, and taught President Barak Obama when he was a student at Harvard. Unger was born in Rio de Janeiro and raised by a Brazilian mother and a German father in Brazil. Unger wrote Law and Modern Society (1976) in which he uses Max Weber’s theories on rational legal systems. His main thesis is that the development of the rule of law— law committed to general and autonomous legal norms—can take place only when competing groups struggle for control of the legal system. For example, Unger contends that
the unequal distribution of knowledge, power, and resources that employers have over employees, that producers have over consumers, and that leaders of corporations have over local communities become subject to state action because privately based inequalities have wide public consequences and no democratic justification (Turkel 1996).
Influenced by both Weber and Marx, Unger fears a dissolution of the rule of law under unbridled capitalism, where large corporations are allowed to take from society but not required to give back in return (Unger 1976).
Feminist Legal Theory
Feminist legal theory (FLT), or feminist jurisprudence, examines the interaction between law and gender. Topics addressed by feminist legal scholars includes workplace discrimination, reproductive rights and the body, domestic violence, sexual harassment, rape, prostitution and sex work, education, sports and Title IX, and the public private split in law and society (Levit and Verchick 2016). We will be looking more closely at feminist legal theory in Chapter 10: Gender, Inequality, and Law.
Critical Race Theory (CRT)
Critical Race Theory (CRT) addresses questions of law and racial discrimination, oppression, difference, and inequality. CRT also looks at the lack of diversity in the legal profession. The term CRT was coined in 1989 at a workshop on race theory held in Madison, Wisconsin. In Chapter 11: Race, Inequality, and Law, we will explore Ian Haney Lopez’s (1996) White by Law: The Legal Construction of Race as well as other scholarship from the field of CRT.
Intersectional Approaches to Society and Law
Intersectional theory is a relatively new approach to studying and understanding social stratification. It is most often employed to analyze race along with other social positions, such as gender, class, and sexuality. In criminology, intersectional analysis has primarily been used to address the experiences of black women and girls in urban settings. However, more recent studies have applied intersectionality to other groups, such as rural women as both victims and perpetrators of crime (Carrington et al. 2014; DeKeseredy et al. 2016). In her 2015 book, Intersectionality and Criminology: Disrupting and Revolutionizing Studies of Crime, Hillary Potter notes that whiteness is rarely discussed in studies of crime. She states, “White is a race.
Consequently, criminologists should, at least, contemplate how being white may influence individuals’ experiences compared with those of other races” (2015:150).
Intersectionality recognizes that people are situated in differing locations within the social structural hierarchy that attach to disadvantages and advantages. Gender, age, race, socioeconomic status, sexuality, and disability affect one’s location in the social structure, social identity, and access to power. “Intersectionality is strongly tied to real-world activism” (Potter 2013:314).
Potter (2013) notes that while intersectionality began with black feminist critiques of racial and gender discrimination, the perspective has now expanded to incorporate various social statuses. Kimberlé Crenshaw, the legal scholar who coined the term “intersectionality,” stated that the concept of intersectionality “can and should be expanded” by factoring in issues such as “sexuality, nationality, and class, among other identities” (Crenshaw 1991; Potter 2013:309) In her 2015 book, Intersectionality and Criminology, Potter states, “I strongly believe the principal goals of intersectionality’s origination are needed in considering all lived experiences, regardless of the identities individuals hold” (2015:79). Later in the same book Potter (2015:105) asserts, “all individuals can be considered from an intersectional framework. Simply because a research sample comprises only white men does not mean that race and gender and sexuality do not need to be considered” (2015:105). Crenshaw (2011:230) also argues that all individuals exist “within a matrix of power.” She states, “Intersectionality represents a structural and dynamic arrangement; power marks these relationships among and between categories of experience that vary in their complexity” (2011:230). Similarly, sociologist Patricia Hill Collins (2009:21) uses the notion of matrix of domination to examine how “intersecting oppressions are organized” into domains of power that appear and “reappear across different forms of oppression.” Collins (2009:26) highlights the “structural, disciplinary, hegemonic, and interpersonal domains of power” and how they control and oppress individuals and groups differently depending on intersections of race, class, gender, nationality, and sexuality. Intersectionality will be given a more thoroughgoing discussion later chapters.
· This chapter examined several historical and contemporary theoretical perspectives on society and law, focusing on how the study of society and law emerged to examine the shift from traditional, premodern social organizations to modern, industrial societies.
· Formal, codified laws evolved along with other social changes of modernization.
· As societies grow in size and diversity, formal social control—including law—is needed along with informal social control to keep citizens safe, to regulate society, and to settle disputes.
· The modernization process included the Industrial Revolution, the expansion of capitalism and stratification, urbanization, the American and French Revolutions and democratization.
· Traditional legal systems were replaced with transitional legal systems, and then with modern legal systems.
· Early European scholars of law, such as Montesquieu, Spencer, and Maine, offered theories of society and law that challenge notions of natural law.
· Classical sociological theories of society and law from Durkheim, Marx, and Weber examined the role of law in the development of modern societies and the roles that law plays in those societies.
· Sociolegal scholars, such as Venn Dicey, Wendell Holmes, and Hoebel view law through the lens of science: they argue that law cannot be understood as separate from the social world in which it is embedded.
· Contemporary approaches to the study of society and law offer critical perspectives on law and view law as a tool to bring about equality and positive social changes.
· Critical legal studies, feminist legal theory, critical race theory, and intersectionality were discussed as current scholarly, theoretical approaches to society and law.



Critical Race Theory
feminist legal theory
ideal types
legal positivism
legal pragmatism
natural law
positivist approach
procedural law
rational law
rational versus irrational dimensions of law
repressive law
restitutive law
rule of law
social control
social fact
substantive and formal dimensions of law
substantive law

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