Soc of law Class Notes PDF

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Dr. Jeff Mullis; Section 1; Spring Semester 2021...

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https://emory.zoom.us/j/97047168005?pwd=d3VubEM5MmU2YUtacGRJQW5peG1MQT09 1/26 ● Weber’s definition emphasizes formal rules and formal roles and the potential for coercive enforcement of the rules ● Weber saw coercion as a central aspect of the law ● Criticisms of Weber’s definition ○ 1) placing too much emphasis on coercion, people often obey the law not because they fear legal punishment but out of a sense of moral obligation-- the law is seen as legitimate ■ Weber said the law has a monopoly on violence. It’s the only social actor in society-- the gov is-- that can use violence to achieve its goals. ■ We respect it’s legitimate authority. We think it’s right and we agree with it. ■ We don’t comply bc of fear but bc we believe in it ■ Failing to recognize something he deliberately overlooked in the first place ○ 2) the reference to rules and ‘special staff’ limits the applicability of the definition to relatively modern/advanced/complex societies and ignores the importance of written custom ■ Focuses too much on developed societies ■ Lots of rules aren’t codified or written down ■ Think about illiterate societies ■ But he was deliberately trying to limit the generalizability of the definition. He never intended to do this in the first place. ● Purposely limited his definition ■ Law is a relatively recent vintage for Weber (court system, police, special staff, etc.) ● Theorizing ○ You have to spell out falsifying disconfirming evidence would look like for a theory ○ Goal of scientific explanation ■ You want to explain as much as possible (generality) with as little as possible (simplicity) ○ The only way you can validate or invalidate is through testing ○ The ultimate goal is to develop theory with these 5 characteristics 1/28

● When you break the law, a special group of people will come and punish you. Weber emphasized coercion for that view. When you break the law, the spiked helmets will show up. ● Durkheim is trying to figure out what the main or dominant type of law is. That’s his dependent variable-- variation in the type of law. He conceptualizes type of law into 2 types-- penal (defines deviant as moral wrong-doer who needs to be punished. Characterized by the criminal justice system) and compensatory (defines deviant as debtor that needs to make amends.Characterized by the civil justice system). ● Consider for example murder. With remarkable frequency we find murder treated in compensatory terms in simpler societies (the murderer’s family would compensate the victim’s family for their loss). Possibly through labor or some other thing of value like goods. ● But in contemporary modern societies, murder is treatd penally, by punishing the wrongdoer. This is the 1st response; compensation may also be used (wrongful death suit). ● Durkheim’s theory would say that as society becomes more modern, a penal response would shift towards a compensatory response. But we see modern societies responding in a penal manner and simpler societies are more compensatory. ● Penal is designed to physically punish. Compensation is a different view of the wrongdoer who needs to make amends financially. ● Durkheim falls short on validity ● Consensus view-- sometimes called functionalism bc of its tendency to see recurring patterns of behavior (e.g. enduring social institutions) as serving some function or useful purpose. The institution of law is seen as a useful framework for reconciling diverse interests, so that social stability and cohesion are achieved. Functionalist logic would have you think of what useful service would something serve over time-- even crime. ○ Every society has deviance (it’s universal) ○ What is the function of deviant/criminal behavior? ■ It sets an example for other citizens ○ Durkheim is in this view ● Conflict view-- argues that some social arrangements may be functional for some but not for others. This view sees society as composed of special interest groups competing with each other to influence legislation in their favor. Law is the state’s weapon for protecting the interests of the powerful; law does not serve the interests of the lower class ○ Weber probably falls under this category ○ Marx is this view

Tues 2/2 Franz de Waal & Flack reading

● Trying to understand moral behavior in humans by looking at non-human primates ○ Trying to explain the existence and emergence of morality and the law over time ● Other animals have cultures ○ Flack and de Waal are looking at the culture of non-humans ● Strong tendency for people to assume that cultural universals don’t have social and cultural causes (assume it must be biological) ● Flack and de Waal → evolutionary psychology ○ Bottom of pg. 23 “While there is no denying we are creatures of intellect…” ○ Flack and de Waal write “the degree to which the tendency…” ○ Not enough to say it’s biologically evolved ■ Everything we do is biologically evolved ○ Cultural universals likely result from biological and sociological interactions ● Finds evidence of reciprocity, peace making, empathy, moralistic aggression in primates (bonobos) ○ Moralistic aggressions ■ Violent actions often come from a moralistic background ■ “Moral” doesn’t necessarily mean correct ■ The violence is seen a justified retaliation to a perceived threat ■ Aggression is an expression of morality ■ Why do people act violently? They are trying to right a wrong, they think an injustice has been committed against them ■ The violent person is not thinking rationally ● Has been criticized for speaking of primates as too similar to humans ● Speaks to the question of where does law come from? ○ Why do we have law and morality? When does law appear in human societies? ● In small, traditional, homogenous societies, informal customs & social control have more meaning and influence in everyday life ● Law, in a Weberian sense, begins to emerge under opposite conditions ○ Weberian sense = formal law ○ In larger, settled communities w/ relatively more heterogeneity & social divisions ■ We exist in many subcultures/pockets ■ Status is determined by a large variety of factors (age, sex, strength, etc) ■ Social divisions based on class and caste ● Permeability between divisions varies ● We know when law begins to appear ○ This is a matter of empirical historical record ○ A normative question to ask would be: why do we need law ● What’s the difference between empirical & normative questions?

○ Empirical statement is capable of being proven wrong ■ Subject to testing ■ Describes what is ○ Normative statements can’t be tested ■ Statements about what should be (what’s desirable) ■ Prescribes what ought to be ■ The world of politics is a normative world ● People are constantly discussing what should be the case 2/4 ● Do we need law? Is law necessary for social order? Does law lie at the heart of social order? ○ Plato ■ If you just properly educate citizens, that’s all you need for social order, for social welfare and the common good ■ You didn’t necessarily need law ○ Marx ■ Under a communist utopia, the state would wither away-- part of the state is the law. Once the state withers away, law would become unnecessary ■ The law is a tool of oppression used by the ruling classes. Once that was overthrown, then there would be no more need for law. ■ Acknowledged that the law is testable ■ Didn’t think law was necessary or it isn’t when society moves through stages he envisioned-- communist utopia ● Law as last resort? ○ It’s a way of solving disputes and that which people turn to for help ○ It’s rarely used. Underneath the law there are lots of events that could potentially cause legal issues. People first try to resolve things informally. Or you tolerate or ignore the wrongdoer. ○ The U.S. is more litigious than many other countries in the world ■ But when looking at the entire universe of events that are actionable (litigable), the law is actually not used that much ● If we concede that, yes, law of some sort is necessary, then the next question is: When is it necessary? ○ The “liberty-limiting” principles are the most common justifications for law ○ The harm principle is the core liberty-limiting principle ○ The harm principle is uncontroversial ○ Pure libertarian would say there’s no justification for any law unless it can be justified by the harm principle. Strongest impression in favor of limited government you can possibly have. -- the harm principle.

○ It’s not anarchist because anarchist wants to get rid of all government. ○ Harm needs to be defined in as narrow/direct a view as possible. ○ If someone’s actions don’t cause me direct physical harm then it’s of no concern to me or the state. ○ When is law necessary is normative 2/9 ● Civil law-- judges guided by precedents established by past decisions, a.k.a., the “doctrine of stare decisis” (latin for stand by what has already been decided). From a conflict perspective feminist legal theory and critical race theory, the emphasis on precedent raises 2 concerns ○ 1) existing precedents may not conform to our ideas/ideals of justice and equality, and thus the precedent may be reinforcing a status quo more favorable to one group than another ○ 2) devotion to precedent can make arguments not based on precedent seem extreme and out of the mainstream-- and thus such arguments are less likely to succeed in court ● Civil law ○ A set of rules and principles that spells out the duties and obligations of persons and other private parties towards one another. A corporation is a private party. ○ Also includes juvenile law (not on the course packet) ■ Arose in the late 1800s ■ A completely separate legal system for legal minors (can be 16 or 18) ■ Based on the idea that it’s not appropriate to treat a child with the same severity as an adult ■ Children aren’t developed enough to be responsible for deciphering the difference between right and wrong so they shouldn’t be punished for doing wrong. So the juvenile justice system is about reformation not punishment ● They haven’t been able to develop a “mens rea” ● Compensatory damages: ○ Pecuniary (financial) losses ■ I.e. you broke your leg so you can’t work. You’re suing bc of the loss of money from not being able to work ○ Non Pecuniary (pain & suffering) losses ■ Often harder to calculate (more subjective) ■ Make whole the plaintiff who’s suing ○ Punitive damages ■ Meant to punish, thus penal in nature

■ Awarded to the plaintiff in a civil lawsuit, designed to punish the wrongdoer ■ The rarest form of compensatory damages ● Selected civil law terms regarding medical negligence and malpractice ○ Have to prove due diligence ● Preponderance of evidence = the evidence shows over 50% for one side ● The vast majority of cases are resolved outside of the courtroom ------● Criminal law ○ Not specific individuals ○ Robbery is an offense against society as a whole ○ Law created by law making bodies ○ Both sides can’t appeal in criminal proceedings, only the defendant can appeal. The state doesn’t have that option generally speaking ● Plea bargaining ○ Criminal version of out of court settlement in civil cases ○ Desirable to both sides. ○ The defendant is basically admitting to their own guilt, just arguing over what the punishment should be ● Beyond all reasonable doubt-- 95-99% 2/11 ● Reasonable person standard-- would a reasonable person have known that their actions would’ve caused that outcome ● Legal realism ○ Believe that the way judges exercise discretion is haphazard ○ Push back to this theory ■ But discretion is shaped by social forces-- by the fears of judges, jurors, and police and their biases. Law does not get created and applied in a social vacuum ● Administrative (or regulatory) agencies set standards for ○ Occupational safety ○ Product safety ○ Which chemicals can be sold as prescription drugs and which can be sold over-the-counter ○ Transportation ○ Air and water pollution ● Just as with criminal and civil cases, negotiation plays a large role in how administrative cases are resolved ● Warning without fine is the most common sanction

2/16 ○ Type of 3rd party decision makers ■ Adjudicators - is the most formal, decisive, and coercive or the three ■ Mediators - lease formal, decisive, and coercive ■ Arbitrators - in between mediators and adjudicators, medium formalism, decisiveness, and coerciveness ○ Formalism: the tendency to create and apply explicit rules ○ Decisiveness: the tendency to declare a clear winner and loser in zero-sum fashion ○ Coerciveness: the tendency to use physical force to resolve the conflict

● What are the dimensions of social structure/status used to predict and explain variation in the quality and quantity of social control? What specifically does it mean to say that downward law is greater than upward law, or that centrifugal law is greater than centripetal law? ○ Law is a quantitative variable; it increase and decreases ■ Ex. a complaint to a legal official is more law than no complain ○ Centripetal law responds to centrifugal deviance, i.e., the offended is more marginal than the offender. The direction of law is from a marginal point to a more integrated one

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2/18 ● A theory of something takes that something as the dependent variable ● Vertical dimension ○ This approach sees society like a latter ○ We naturally think in vertical terms ■ Who’s higher? Who has more power? ○ Some people are higher than others ○ Upward law responds to downward deviance, i.e., the offended is lower in vertical status than the offender. The direction of law in social space is upward. Don’t confuse the direction of deviance with the direction of law. ■ A (wronged) → B (wrongdoer) ■ Deviance flows downward… therefore the law is in response to that (law flows upward to counteract the downward deviance) ○ Marx ● Horizontal dimension ○ B (wrongdoer is integrated) ← A (wronged party is relatively marginal) ○ It’s not the case that someone who is ranked high vertically is ranked high horizontally ○ Centripetal law responds to centrifugal deviance ■ I.e. the offended is more marginal than the offender ■ The direction of law is from a marginal point to a more integrated one ■ The flow of law is inward ○ Emile durkheim emphasized the horizontal dimension ■ Was very concerned with the nature of social bonds & social solidarity ■ Interested in a horizontal dimension that emphasized relationships ● You need to take both into account in the law ● When relational distance is high, intimacy is low ● Relational distance ○ Scope of interaction, length of relationship ● The quantity of downward law is greater than the quantity of upward law ● Downward law is more penal than upward law 2/23 ● 3 proposals to reduce discrimination in the law: ○ Legal service insurance ○ “Desocializing” courtrooms & sentencing ○ Legal minimalism ● Throughout most of human history, people have openly considered social factors when handling conflicts, and they did not see it as wrong or discriminatory. ○ See for example the Code of Hammurabi

● Rule of law-- being ruled by law, not by the whims of rulers, i.e., the ideal that everyone is subject to the same established laws regardless of social advantages/disadvantages ● Due process-- the related ideal that governmental power should be bound by the rule of law in order to protect individual liberty and right 2/25 Bruce Western & Becky Pettit – Incarceration & Social Inequality (article) - Lays out the consequences of mass incarceration - The educational system perpetuates inequalities - Can sometimes level the playing field, depending on an individual’s opportunities / educational attainment - Invisible inequality - Cumulative inequality - Intergenerational inequality Prostition: Facts and Fictions by Ronald Weitzer True or False: - Prostition is the only sexual offense for which more women than men are prosecuted - True - All forms of prostition are currently illegal throughout the US - False (certain counties in Nevada-- brothel institution) - In the 19th and early 20th century, large brothels could be found operating legally in every major American city. - True - Storyville in New Orleans -

3/2

A major turning point in the legal history of prostitution came with the state-by-state criminalization of red-light districts between 1909 and 1920. Closing down red-light districts had some unintended consequences that are still with us today Closing down the red-light district did not end the practice of prostitution but rather - 1) reduced the number of brothel-based prostituion and made streetwalkers more common - 2) ushered in the “era of the pimp” -- a sort of business agent who controlled the streetwalker’s activities - 3) created a “revolving door” relationship between prostitutes and the criminal justice system

● Insanity is a broader notion than just mental illness. It is a legal term. ● A father who was enraged and hurt someone who raped his daughter could plead insanity ○ The conditions of the violent assault was understandable and goes a long way towards mitigating the father’s capability and might lessen the legal punishment ● In order to argue that the defendant is insane, you have to prove it. The defense has to prove it ● Both insanity and mental illness are determined by the same types of mental care professionals even though insanity is a legal term ● The ALI’s (American Law Institute) Model Penal Code has been an important part of American law since the early 1960s ○ It attempts to standardize & organize & provide guidance on the often confusing criminal codes that vary widely across the American states ○ Gives guidance to legal decision makers (i.e. judges) ○ Criminal codes can be confusing and inconsistent ■ Lots of variation between states ● NGRI ○ Not guilty by reason of insanity ○ They are confined to a mental hospital, never go to prison. In psychiatric care ○ Often seen as people getting off easily and evading responsibility (cheating the system) ● GBMI ○ Guilty but mentally ill ○ This verdict came about after NGRI ■ Created bc NGRI is problematic and jurors don’t often buy the insanity defense ● People think the insanity defense is a rich person's defense-- it’s easier/more used by wealthy individuals. That goes back to the 19th century. Only wealthy defendants can attain the high priced psychiatric experts that can convincingly argue that they are insane. ○ People that are represented by public defenders are usually going to be, if they decide to use the insanity defense, given a psychiatric expert but it probably won’t be the same quality ○ But actually now it’s much more likely to be invoked when the defendant has an obvious mental illness and is poor. Not the wealthy at all ● The crazier the crime, the more likely NGRI ● The average jury is less likely to endorse NGRI but a judge is more likely. Juries maybe feel sympathy for the victim

3/4/21 Reading – Lamb et al. Criminalization of Mentally Ill - Page 109 relates to the last question on the exam - The snake pit - Staff and psychiatrist were just custodians-- there wasn’t affective care going on - Academic response moved into an anti-psychiatry movement - Even including scholars who were psychiatrists & psychologists - Was a critic even from the scholars who were within the field - The drug treatment helped change this bad view of psychiatry - Homelessness increased bc lack of community support systems and lack of mental health care 3/9/2021 -

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Doris M Provine calls the temperance movement the first anti-drug crusade in the US. she attributes the success of the movement to the fact that the anti-liquor crusaders from rural and small town America skillfully identified alcohol with immigrants, ethnic Catholics, Jews, and African Americans The prohibition on alcohol took on symbolic importance: it marked the dividing line between “American” (WASP) values and “foreign” or “alien” values Gusfield cited a lot Alcohol was associated with immigrant groups and people were worried about immigrants threatening the typical way of life Benjamin rush - Tolerance-withdrawal syndrome - From “sin to sickness” - Like many other deviant acts, drunken gradually become seen as a medical problem, not a moral failing over the past few decades -

3/11 ● Drug clip ○ People used t...