THE FUNCTIONS OF LAW

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FOUNDATIONS OF LAW

• THE FUNCTIONS OF LAW

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FUNCTIONS OF LAW

• INTRODUCTION
• IN THIS SECTION OF THE COURSE, WE EXAMINE THE
  VARIOUS FUNCTIONS OF LAW THAT IS, FOR WHAT
  PURPOSE(S) IS LAW USED?
• AS WELL SEE, THE LAW SERVES THREE IMPORTANT
  FUNCTIONS, INCLUDING FACILITATING OR RETARDING
• SOCIAL CONTROL
• SOCIAL CONFLICT
• SOCIAL CHANGE
• An Example Social Control and the Power of the
  President

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FUNCTIONS OF LAW

• THE MULTIPLE FUNCTIONS OF LAW
• LAW AS AN INSTRUMENT THAT FACILITATES/RETARDS
• SOCIAL CONTROL
• MAINTAINING SOCIAL ORDER
• SOCIAL CONFLICT
• CREATING/RESOLVING DISPUTES IN SOCIETY
• SOCIAL CHANGE
• LARGE NUMBERS ENGAGING IN GROUP ACTIVITIES AND
  RELATIONSHIPS THAT DIFFER FROM THOSE IN WHICH
  PARENTS ENGAGED

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FUNCTIONS OF LAW

• SOCIAL CONTROL
• METHODS USED BY MEMBERS OF SOCIETY TO MAINTAIN
  ORDER AND PROMOTE PREDICTABILITY OF BEHAVIOR
  (VAGO, 2003)
• TWO BASIC PROCESSES OF SOCIAL CONTROL
• INTERNALIZATION OF GROUP NORMS THROUGH
  SOCIALIZATION (INTERNAL CONTROL)
• EXTERNAL PRESSURE BROUGHT TO BEAR (EXTERNAL
  CONTROL)
• Internal vs. External Social Control (Corporal
  Punishment of Children)

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FUNCTIONS OF LAW

• INTERNALIZATION OF GROUP NORMS
• LEARN WHATS APPROPRIATE, WHATS EXPECTED,
  WHATS DESIRABLE IN SPECIFIC SITUATIONS
• CREATES INTERNAL MOTIVATION TO CONFORM TO NORMS,
  REGARDLESS OF OUTSIDE PRESSURE
• CONTROL THROUGH EXTERNAL PRESSURE
• USE OF NEGATIVE AND POSITIVE SANCTIONS
• NEGATIVE PENALTIES IMPOSED ON THOSE VIOLATING
  THE NORMS
• POSITIVE REWARDS FOR CONFORMITY

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FUNCTIONS OF LAW

• INFORMAL SOCIAL CONTROL
• VIOLATION RESULTS IN RIDICULE, GOSSIP, PRAISE,
  REPRIMANDS, ETC. (COMMON IN SMALLER, HOMOGENEOUS,
  GROUPS WITH FACE-TO-FACE RELATIONS)
• Corporal Punishment of Children by Parents
• FORMAL SOCIAL CONTROL
• ARISE WHEN INFORMAL CONTROLS ARE NO LONGER ENOUGH
  AND INVOLVE SPECIALIZED AGNENCIES (E.G., THE
  POLICE), SPECIFIC RULES, ETC.
• Police Arrest Armed Robbery Suspect

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FUNCTIONS OF LAW

• FORMAL SOCIAL CONTROL MECHANISMS
• FORMAL SOCIAL CONTROLS
• ARE INCORPORATED INTO MAJOR INSTITUTIONS IN
  SOCIETY
• HAVE RULES AND PROCEDURES THAT MUST BE FOLLOWED
• HAVE INDIVIDUALS DELEGATED TO IMPOSE SANCTIONS ON
  VIOLATORS (E.G., THE POLICE JUDGES)

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FUNCTIONS OF LAW

• LEGALIZATION
• THE PROCESS BY WHICH NORMS ARE MOVED FROM THE
  INFORMAL (FOLKWAY OR MORE) TO THE FORMAL (LAW)
• LEGALIZATION INVOLVES TWO IMPORTANT GROUPS MORAL
  ENTREPENEURS AND INTEREST GROUPS

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FUNCTIONS OF LAW

• MORAL ENTREPENEURS
• INDIVIDUALS WHO PRESSURE LAW MAKERS TO OUTLAW
  CERTAIN BEHAVIORS BECAUSE
• THEY VIEW CERTAIN BEHAVIOR AS MORALLY OUTRAGEOUS
• THEY PLACE A HIGH VALUE ON SOCIAL ORDER AND WISH
  TO PLACE GREATER REGULATIONS ON SOCIAL LIFE
• THE BEHAVIOR IN QUESTION POSES A THREAT (REAL OR
  IMAGINARY)
• Bill O'Reilly vs. Geraldo Rivera on Illegal
  Immigrants
• Pat Robertson on "Dangerous Professors"
• Noam Chomsky ("Dangerous Professor")
• Thomas L. Friedman NY Times Columnist on Stimulus
  Package

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FUNCTIONS OF LAW

• POLITICAL INTEREST GROUPS
• POWERFUL GROUPS THAT BAND TOGETHER TO INFLUENCE
  LAW MAKERS IN AN EFFORT TO MAKE CERTAIN BEHAVIORS
  ILLEGAL
• YouTube - NRA Ad from 1986
• ACLU Patriot Act Commercial

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FUNCTIONS OF LAW

• LAW AND CONFLICT RESOLUTION
• IN BOTH HOMOGENEOUS AND HETEROGENEOUS SOCIETIES,
  DISPUTES AND CONFLICTS ARISE
• HOMOGENOUS SOCIEITIES RESOLVE CONFLICT
  INFORMALLY
• HETEREOGENEOUS SOCIEITIES RESOLVE CONFLICT MORE
  FORMALLY, INCLUDING USE OF THE LAW
• ULTIMATELY, ALL DISPUTES ARE PROCESSED (RATHER
  THAN SETTLED) AND CONFLICTS ARE MANAGED OR
  REGULATED (BUT NOT RESOLVED)

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FUNCTIONS OF LAW

• METHODS OF DISPUTE RESOLUTION
• A CONTINUUM OF FORMALITY FROM NEGOTIATION TO
  ADJUDICATION
• TABLE 1 HIGHLIGHTS THE MAJOR CHARACTERISTICS OF
  VARIOUS DISPUTE RESOLUTION MECHANISMS

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FUNCTIONS OF LAW
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FUNCTIONS OF LAW

• LAW AND SOCIAL CHANGE
• SOCIAL CHANGE
• LARGE NUMBERS OF PEOPLE ENGAGING IN GROUP
  ACTIVITIES AND RELATIONSHIPS THAT ARE DIFFERENT
  FROM THOSE IN WHICH THEIR PARENTS ENGAGED
• BASIC MODIFICATIONS IN THE WAY THAT PEOPLE WORK,
  RAISE A FAMILY, EDUCATE THEIR CHILDREN, GOVERN
  THEMSELVES, ETC.
• A RESTRUCTURING IN THE WAYS THAT PEOPLE RELATE TO
  ONE ANOTHER WITH REGARD TO GOVERNMENT, ECONOMICS,
  EDUCATION, RELIGION, FAMILY LIFE, RECREATION,
  LANGUAGE, ETC.

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FUNCTIONS OF LAW

• LAW AND SOCIAL CHANGE CONFLICTING VIEWS
• LAW AS AN INDEPENDENT VARIABLE IN SOCIAL CHANGE
• BENTHAM LEGAL REFORMS USED TO BRING ABOUT AND
  GUIDE SOCIAL CHANGE (E.G., FRENCH REVOLUTION)
• PROGRAMMED SOCIAL EVOLUTION (E.G., FORMER SOVIET
  BLOCK COUNTRIES)
• LAW AS A DEPENDENT VARIABLE
• VON SAVIGNY ONLY FULLY DEVELOPED POPULAR CUSTOMS
  CAN FORM THE BASIS OF LEGAL CHANGE
• LEGAL CHANGE CONSTITUTES THE CODIFICATION OF
  CUSTOM
• LAW IS DETERMINED AND SHAPED BY CURRENT PUBLIC
  ATTITUDES AND BELIEFS
• MORE APPROPRIATE WHEN AND UNDER WHAT
  CIRCUMSTANCES CAN LAW BRING ABOUT SOCIAL CHANGE,
  AT WHAT LEVEL IS THIS CHANGE, AND TO WHAT EXTENT
  IS THE CHANGE REAL (VAGO, 2003)

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FUNCTIONS OF LAW

• LAW AS AN INDEPENDENT VARIABLE
• FORMER SOVIET UNION (SOCIALIST LAW SYSTEMS)
• SPAIN (1930S) REFORMS OF AGRARIAN LABOR AND
  EMPLOYMENT RELATIONS
• EUROPEAN NATIONALIZATION OF INDUSTRIES, LAND
  REFORMS, PROVISION OF FREE EDUCATION AND HEALTH
  CARE (1940s - )
• CHINA (1980s ) MODERATION OF POPULATION
  GROWTH, DEVELOPMENT OF WOMENS HEALTH SYSTEMS,
  ECONOMIC DEVELOPMENT AND MODERNIZATION
• UNITED STATES (1960s - ) IMPROVING SOCIAL AND
  POLITICAL POSITION OF AFRICAN AMERICANS
• CIVIL RIGHTS ACT OF 1964 VOTING RIGHTS ACT OF
  1965

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FUNCTIONS OF LAW

• LAW AS A DEPENDENT VARIABLE
• IMPACT OF TECHNOLOGY ON LAW (MILLER, 1979)
• TECHNOLOGY HAS REFINED LEGAL TECHNIQUES BY
  PROVIDING INSTRUMENTS USED IN APPLYING LAW (E.G.,
  DNA EVIDENCE FINGER PRINTS COMPUTER FORENSICS)
• TECHNOLOGY AFFECTS THE PROCESS OF FORMUATING AND
  APPLYING LAW AS A RESULT OF THE CHANGES
  TECHNOLOGY FOSTERS IN THE SOCIAL AND INTELLECTUAL
  CLIMATE IN WHICH THE LEGAL PRODCESS IS EXECUTED
  (E.G., TELEVISED HEARINGS OR COURT CASES)
• TECHNOLOGY AFFECTS THE SUBSTANCE OF LAW BY
  PRESENTING NEW PROBLEMS AND NEW CONDITIONS WITH
  WHICH LAW MUST DEAL
• ADVENT OF THE AUTOMOBILE, AIR TRAVEL, COMPUTERS,
  ETC.

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FUNCTIONS OF LAW

• THE EFFICACY OF LAW IN FACILITATING SOCIAL CHANGE
  (VAGO, 2003)
• LEGITIMATE AUTHORITY
• LEGAL COMMANDS/PROHIBITIONS OUGHT TO BE OBSERVED
  BECAUSE THEY ARISE FROM LEGITIMATE AUTHORITY (LAW
  MAKERS, THE COURTS)
• THE MORAL FORCE OF LAW
• BINDING FORCE OF LAW
• THE PREFERENCE FOR ORDER OVER DISORDER
• CREATES PREDICTABILITY IN BEHAVIOR
• SANCTIONS
• THE LAW HAS TEETH AND CAN BITE WHEN NEEDED
• THE LAW CAN ALSO USE POSITIVE SANCTIONS (E.G.,
  GOVERNMENT CONTRACTS TO COMPANIES WHO COMPLY WITH
  VARIOUS REGULATORY LAWS)

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FUNCTIONS OF LAW

• THE LIMITS OF LAW IN CREATING CHANGE
• PREVAILING CONFLICTS OF INTEREST BETWEEN THOSE
  WHO MAKE THE LAW AND THOSE WHOM THE LAW AFFECTS
• LEGISLATION, ADMININISTRATIVE RULINGS, AND
  JUDICIAL DECISIONS OFTEN REFLECT POWER
  CONFIGURATIONS IN SOCIETY
• CHANGE THROUGH LAW AS AN INGREDIENT OF A LARGER
  POLICY
• ECONOMIC OPPORTUNITY ACT (1968) OCCURRED IN THE
  CONTEXT OF A LARGER POLICY TO ELIMINATE POVERTY
• CONFLICT WITH MORAL VALUES
• LAWS CONCERNING SUCH BEHAVIOR AS ADULTERY,
  CONSUMPTION OF ALCOHOL, THE WAR ON DRUGS, ETC.

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FUNCTIONS OF LAW

• RESISTANCE TO CHANGE
• VARIETY OF SOCIAL FORCES MAY CREATE BARRIERS TO
  SOCIAL CHANGE, REGARDLESS OF ITS SOURCE (LAW OR
  CUSTOM)
• VESTED INTERESTS GROUPS PREFERRING THE STATUS
  QUO TO MAINTAIN THEIR POWER
• SOCIAL CLASS SUPPORT FOR CHANGE DIFFERS ALONG
  CLASS LINES WORKING CLASS MORE FAVORABLE
  MIDDLE/UPPER CLASS LESS SO
• IDEOLOGICAL RESISTANCE BASIC INTELLECTUAL AND
  RELIGIOUS ASSUMPTIONS CONCERNING EXISTING
  ARRANGEMENTS RELATING TO POWER, SECURITY,
  WELFARE, ETC. (E.G., CATHOLIC CHURCH OPPOSITION
  TO RU-486)
• ORGANIZED OPPOSITION MOBILIZED INDIVIDUAL
  RESISTANCE/SOCIAL MOVEMENTS TO PERCEIVED THREATS
  TO THE STATUS QUO

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FUNCTIONS OF LAW

• SUMMARY
• LAW FUNCTIONS TO FACILITATE/RETARD SOCIAL
  CONTROL, SOCIAL CONFLICT, AND SOCIAL CHANGE
• LAW AFFECTS THE MECHANISMS USED IN SOCIETY TO
  FACILITATE SOCIAL ORDER
• SOCIALIZATION AND EXTERNAL PRESSURE
• INFORMAL AND FORMAL MECHANISMS OF SOCIAL CONTROL

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FUNCTIONS OF LAW

• LAW ALSO IS USED TO ATTEMPT TO RESOLVE DISPUTES
• LAW AS ONE OF A NUMBER OF ALTERNATIVES TO
  RESOLVING DISPUTES AND CONFLICT
• NEGOTIATION TO ADJUDICATION
• VARIABILITY IN DEGREE OF FORMALITY AND IN
  STRUCTURE

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FUNCTIONS OF LAW

• LAW CAN ALSO BE USED TO BRING ABOUT SOCIAL CHANGE
• LARGE NUMBERS OF PEOPLE ENGAGING IN GROUP
  ACTIVITIES AND RELATIONSHIPS THAT ARE DIFFERENT
  FROM THOSE IN WHICH THEIR PARENTS ENGAGED
• CONFLICTING PERSPECTIVES LAW AS AN INDEPENDENT
  VARIABLE (BETHAM) VS. LAW AS A DEPENDENT VARIABLE
  (VON SIVAGNY)

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FUNCTIONS OF LAW

• LAW AS AN INDEPENDENT VARIABLE
• GUIDED SOCIAL EVOLUTION (E.G., IMPROVEMENTS IN
  THE POLITICAL AND SOCIAL LIVES OF AFRICAN
  AMERICANS IN U.S., 1960s - )
• LAW AS A DEPENDENT VARIABLE
• IMPACT OF TECHNOLOGY ON LAW
• ADVENT OF AUTOMOBILES, AIR TRAVEL, COMPUTERS,
  ETC.
• LAW CAN BE AN EFFECTIVE SOURCE OF CHANGE BECAUSE
  OF IT PERCEIVED AS ARISING FROM LEGITIMATE
  AUTHORITY, SERVING AS A BINDING FORCE, AND
  BECAUSE IT CAN USE SANCTIONS

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FUNCTIONS OF LAW

• LAW IS LIMITED IN BRINGING ABOUT SOCIAL CHANGE
  BECAUSE OF PREVAILING CONFLICTS OF INTEREST
  BETWEEN THOSE WHO MAKE THE LAW AND THOSE WHOM THE
  LAW AFFECTS, IF LAW IS NOT AN INGREDIENT OF A
  LARGER POLICY, AND IF LAW CONFLICTS WITH MORAL
  VALUES

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FUNCTIONS OF LAW

• LAW FACILITATING SOCIAL CHANGE IS ALSO LIMITED BY
  LARGER FORCES RESISTING CHANGER MORE GENERALLY
  INCLUDING VESTED INTERESTS SEEKING TO MAINTAIN
  THE STATUS QUO TO KEEP THEIR POWER, SOCIAL CLASS
  DIFFERENCES, IDEOLOGICAL RESISTANCE, AND
  ORGANIZED OPPOSITION

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• THE DIVERSE CONTEXT OF LAW
• RACE AND THE LAW