9/10/14

FERA FEMA TADA BPL Untouchability Offenses Act (55)

10/10/14

Principles, norms, institutions

1. Law and Social Control

2. Law and Social Change

13/10/2014

Norms, deviants

Social control Stealing from parents wallet (does not reach FIR)

Roscoe Pound, EA Ross Social control and deviance, Lon Fuller

14/10/2014

Caste, definitions of caste

Collection of families or group of families bearing a common name claiming a common descent
from a mythical ancestor and that mythical ancestor who may be human or divine and professing to
same hereditary colleague and in the opinion of those who are competent to give an opinion as
forming a single homogeneous community.

Bohannan Differing realms of the law

Legal language (defining law)

Many scholars have tried defining law and such efforts have usually fallen into some inherent traps
that come with defining the subject matter of law. It has been used in the ordinary dictionary sense
without realizing that even in dictionaries there are multiple entries defining law. Other
sophisticated scholars have realized law is nothing but mans idea about it and definition is no more
than a set of mnemonics to remind the reader what has been talked about

Modern studies on defining law

-HLA Hart (1954). Three basic issues:

1. How is law related to order backed by threats?

2. What is relation between legal and moral obligation?

3. What are rules and to what extent is law an affair of rules?

-Stone (1965). Seven attributes associated with the phenomenon designated as law:

1. It is a complex whole
2. It always includes norms regulating human behaviour

3. They are social norms.

4. The complex whole is orderly.

5. Order is characterisitically a coercive order.

6. That is institutionalized.

7. With a degree of effectiveness sufficient to maintain itself.

-Pospisil (1958) Several attributes of law:

1. attributes of authority

2. attributes of intention of universal application

3. obligation (rights obligations)

4. sanction

legal comprises a field in which custom, political decision and various attributes overlap and there
is no firm line but a zone of transition between which is unquestionably legal and which is not.

-Hermann Kantoroiwicz

Pointed out to many non legal subjects employing concept of law and said that it was upto general
jurisprudence to provide a background to make these components sensible.

His approach to provide a jurisprudential background was anthropological.

Law is a body of rules that prescribe external conduct. These rules must be stated in a way that
courts and other adjudging bodies can deal with them. They have a moral element (ought) and this
element is culturally determined and may change from society to society. These norms also govern
daily lives of men outside courts to reconcile their activities and behaviour with ideal acceptable
principles to allow social life to continue.

Double institutionalization

Norms v. customs v. laws

-Norms are rules which express ought aspect of relationships between human beings.

-Custom is a body of norms including regular deviations and compromises with norms that is actually
practiced.

Law must be distinguished from norms and customs (and traditions and fashions)

Law is specifically recreated by agents of society in a narrow and recognizable context ie in the
context of legal institutions to some degree discrete.

Law is greater and more precise than norms

Law is justiciable capable of reinterpretation by legal institutions of society to avoid conflicts with
non legal institutions. [legal institutions referred = authority on such rules and their interpretation)

Three kinds of tasks law faces while settling difficulties in non legal institutions:
 1. There must be specific ways in which difficulties can be disengaged from the institutions in
which they arose and which they now threaten and then be engaged within the process of
legal institutions.
2. There must be ways in which the trouble can be handled within the framework of legal
institutions.
3. There must be ways in which the new solution which thus emerge be reengaged within the
process of nonlegal institution from which they emerged.

Two aspects of legal institutions (which are not shared with other institutions)

1) LI must regularize ways to interfere in functioning and malfunctioning of non LI in order to

disengage the trouble case
2) 2 kinds of rules:
a. Those that govern the lI itself (adjective law (Austin)/procedure)
b. Those that are substitutions/modification/restatements of rules of non LI (substantive
law)

Law v. Custom

Customs are norms/rules about the ways in which people must behave if social institutions
are to perform their tasks and society is to endure.
All institutions (legal and nonlegal) develop customs. However some customs are
reinstitutionalized and restated for the more precise purpose of legal institutions. These
become law.
Some of these laws are for legal institutions themselves while most are for NLIs economic,
political, etc.

Malinowski Crime and Custom in Savage Society

His definintion of law: a body of binding obligations regarded as right by one party and
acknowledged as duty by the other (kept in place by the specific mechanism of reciprocity and
publicity inherent in the structure of society)

His error: kept in force by reciprocity and publicity Law is not keptpublicity but rather this is
the characteristic of a custom. Reciprocity is the basis of custom but the law rests on basis of double
institutionalized.

A more apt version would be:

Which has been reinstitutionalized within the legal institution so that society can continue to
function in an orderly manner on the basis of rules so maintained.

Legal rights/Law is the restatement of customs for the purpose of enabling legal institutions to
perform their tasks for the purpose of maintaining peaceful and just operations of the institutions of
society.

Social growth or decay takes place between the interstices of customs and laws. Customs must
either grow to fit the law or it must reject it and vice versa.

Mark Gallanter

Sociology of Law
The classics:

Sir Henry Maine proposed that modernization involved moving from legal rights and duties based
on status to legal r and d based on conract between individuals.

Beccarias on Crime and Punishment criticized the European pena institution of 18th century.

Durkheims Division of Labour in society

Contained his ideas on law, crime and punishment. It provided an evolutionary theory of economic
modernization that found its key indicators in changing nature of law.

Mechanical solidarity rudimentary division of labour. A type of moral bond based on similarity

Organic solidarity advanced division of labour, a hype of social bond based on difference.

He classified law according to legal sanctions being retributive or restitutive. These were indicators
of MS and OS

MS arrow OS [societal transformation]

(Retributive arrow restitutive)

OS reinforced and promoted division of labour itself by increasing social regulations and integration.

Durkheim also distinguished between negative and positive restitutive law indicating stages in the
transition from MS to OS

(-) Negative resititutive laws protedcted from particular interference or harm and expemplified by
property and torts laws.

(+) Postivie restitutive laws facilitated economic and social ties or improved disputing actors
circumstances and exemplified by family/contract/admin laws.

Criticism:

Studies showed that Durkheims presumption of little restitutive law in societies lacking division of
labour is false. However his argument that division of labour in its normal form produced solidarity
rather than alienation and class oppression was an important attempt to refute Marxs theory of
economic and social development

Mark

Viewed law as a dependent variable in social change

historical materialist philosophy

It regulates to law to a a superstructure which reflects the changing modes of production which
result from class conflict

Eg: feudalism arrow capitalism arrow socialism arrow communism [changing modes of production]
These changing modes of productions have their own means of production. Eg land in feudalism and
capital in capitalism and their own class structur and conflicts eg between feudals and serfs,
capitalists and bourgeois.

Law codifies these pre-existing production relations in economy and society and reflects class
relations of exploitation without being a force in producing them.

Marxs analysis of factory acts in England presents law as being an object and outcome of class
struggle as opposed to his notion of law being an instrument of class oppression (Rhine forest
example)

Weber

According to Weber for political stability raw power must be converted to legitmate authority

Sources of legitimacy:

1. In premodern societies it was tradition

2. In societies undergoing institutional transitions, charisma
3. In modern democratic states legality

Legality democratic leaders take office pursuant to legal rules and derive authority from bein
bound by shcu rules.

(*Weber economy and society)

This rationalization of laws which has led to capitalists, modern democratic states and advancement
of science and tech has resulted from continuous power struggles. This legal rationalization in turn
promoted rationalization of structure in other arenas of social life especially economy.

Weber argued there was a conjoint rise of formal legal rationality (?) and capitalism

Trevino suggested reasons why Weber presumed so:

i) Legal rights and guarntees to contract

ii) Legal rationalization promoted rational capitalism by making available new tools
especially legal ideas of agency, negotiability and the legal person
iii) Idea of legal personhood makes business organizations bearers of universal rights and
duties entitled to formal equal treatment under law thereby connecting ule of law and
belief in legality in the polity (?)

What is law and how does it work?

-Law as social control

Scholars studying crim, law and punishment tend to define law by its societal function of social
control.

Inportant scholars Durkheim, Davis and Black

Davis (1962) law is defined as a formal means of social control that involves the use of ruels that
are interpreted and are enforceable by courts of a poltical community
Black (1976) law is a governmental social control in other owrds it is the normative llife of stat
and its citizen such as legislation, litigation and adjudication

This conept promotes investigating how criminal and civil sanctions operate as external constraint or
as behavioural standards that people internalize through socialization. Also how control mechanisms
such as courts, police, etc. interrelate.

Introductory sociological text introduces law as a type of norm. therefore the question about
relationship bw la and social roms arises

=Law as rules

Traditional legal scholars think about rules as written, institutionalized doctrine or black letter law
these comprise of legal codes, court opinion, etc. These are laws on the books

Sociologists are less interested in law on the books but law in action. They study how law is
produced socially and what are its social consequences.

*In mid 1960s Law and society association formed to study this law in action

The key contribution of this concept has been to highlight the gaps bw law on the books and how it
operates in practice.

-Law as legality

*The common place of Law Patricia Emich and Susas Silby

Law and Inequality

Liberal legal philosophers law is impartial/neutral but SOL has shown that economic and social
enequalities create legal inequalities.

Eg 2nd class citizenship for afr amr and racial laws during apartheid.

*Tryker (1989) study on NLRB

*Gallanter Why the haves come out ahead

Galanter:

(OS) One shot player: occasion recourse to the courts/accused criminals/ divorce

(RP) repeat players: engaged in many litigation overtime /prosecutors, insurance companies etc.

They go with different goals to the court

One shot only concerned with outcome of that specific case

Arrow settlement: criminal avoid max penalty and civil compensation

Repeat strategically allocate resources between cases

Arrow additional resources legal experts etc.

Due to such resources at their disposal RP have an advantage over OS. Access to lawyers may help
balcance the scale.

Highest prestige jobs in law involve representing high status/wealthy people. Hence skilled lawyers
choose to represent haves.

Boundaries of Legal sociaology

One

Comtemporary sociology of law a confusion of science and policy

Analysis in a scientific tongue/vocabulary of technique which rarely impars emotions or

personal involvement however normative considerations become subtly implicated
Although legal sociologist criticize one another are to scientific standards of methodological
precision and theoretical validity, they frequently become preoccupied with policy
implications, shedding the mantle of science and becoming political

Sociological approach to law should involve a scientific analysis of legal life as a system of behaviour
rather than an assessment of legal policy. Ultimate contribution should be a general theory of law
that would predict and explain every instance of legal behaviour.

Whiel such general theory may not be achievable, efforts should be central to the SOL

Problem with legal policy making is a problem of value (which are irrelevant to SOL as they are to
any other science)

Two

Legal effectiveness studies a mojor thematic concern of contemporary SOL

Involves a comparison of legal reality to a legal ideal of some kind. Gap shwon between the two.
Socioloists suggest how this may be fined Law regarded as ineffective and in need of reform owing
to the disparity between the tow.

These studies differ I the kinds of legal ideals against which their findings are measured.

-Impact studies:

Compare reality to ideals with a very plain and specific operational meaning

Here the legal measureing rod is likely to be

A. Statute with a clearly discernible prupose or a judicial decision unambiguously declarative of

a specific policy. This type of research can be expected to show whether or not a decision
has in fact been implemented.
B. Sociologists may also undertake such implementation studies where legislation or judicial
decision is more ambiguous hence impact would be difficult to measure and identifying the
degree to which it has been implemented
C. An ideal grounded neither in a statute or case law. Investigatior assesses his empirical
materaials against standards of justice. Such as rule of law, legality, due process etc. In such
studies it is difficult to locate such principles and hince inadvertently investigator may
implant his personal ideas as the societys legal ideals
Three

The technocratic thought (or earlier scientism)

Technocratic view every problem- factual, moral, legal or political is reduced to a question of
technique. Hence a good technidque is the one that owrks and can be learned from science. A
problem which cnat be solved this way is no problem at all. In other words, every problem can be
solved if only the appropriate expertise is applied to it. Effeciencey and effectiveness key.

This approach is similar to pragmatis but with unstated goals. People who have tried to infer such
goals are termed as liberal and bourgeois or radical and critical. Hence technocrats do not make
political arguments and imply want to get the job done.

Technocratic style dominates much discussion of social controversy. We are given to understand
that scientific research will reveal whether marijuana should be legalized and so on, most rational
tax programs, how wars were a miscalculation, what African countries modernization requires etc.
Everything is studies and treated in the name of science no condemned. This mentality has catapult
sociology to a prominent position and it Is though that it will point to solution of money problems
before us.

<last three pages of first essay>