The articles under this heading deal mainly with the study of law, and with the relationship between law and society, as do also Jurisprudence; Legal reasoning; Psychiatry, article On Forensic Psychiatry; Public law. The articles listed under Legal systemsdiscuss and compare the major modern systems. Other branches of the law are dealt with in Administrative law; Canon law; Criminal law; Conflict of laws; Constitutional law; International law; Military law. The creation of law and its relations with political institutions are discussed in Adjudication; Conflict of interests; Judicial process; Judiciary; Legislation; Political justice. Relevant to the development of modern jurisprudence are the biographiesof Austin; Blackstone; Brandeis; Cardozo; Coke; Duguit; Ehrlich; Frank; Glerke; Grotius; Hamilton, WaltoN H.; Hauriou; Holmes; Jellinek; Kantorowicz; Kelsen; Llewellyn; Maine; Maitland; Moore; John Bassett; Pound; Radbruch; Savigny; Schmitt; Vattel. For a discussion of law and related problems in preliterate societies seePolitical anthropology; Sanctions.
I. The Sociology of LawPhilip Selznick
II. The Legal SystemLeon H. Mayhew
III. The Legal ProfessionPhilippe Nonet and Jerome E. Carlin
IV. Law and Legal InstitutionsPaul Bohannan
The broad aim of legal sociology is the extension of knowledge regarding the foundations of a legal order, the pattern of legal change, and the contribution of law to the fulfillment of social needs and aspirations. The special interest of sociology in these matters rests on the basic assumption that law and legal institutions both affect and are affected by the social conditions that surround them.
Within sociology, the study of law touches a number of well-established areas of inquiry. In criminology attention is given to the changing character of penal law, the assumptions upon which it rests, and the social dynamics of law enforcement and corrections. The sociology of law shares with political sociology a concern for the nature of legitimate authority and social control, the social bases of constitutionalism, the evolution of civic rights, and the relation of public and private spheres.
The roots of legal sociology lie mainly in jurisprudence rather than in the autonomous work of sociologists. In legal theory a “sociological school” emerged out of the work of such jurists as Rudolf von Jhering, Oliver Wendell Holmes, Léon Duguit, Eugen Ehrlich, and Roscoe Pound, all of whom felt the need to look beyond the traditional confines of legal scholarship. The sociologists Émile Durkheim, Max Weber, E. A. Ross, and W. G. Sumner, among others, contributed to the development of a sociological orientation among students of jurisprudence, in some cases by direct influence on legal writers such as Duguit and Pound.
Four basic motifs have been prominent in the intellectual history of legal sociology: historicism, instrumentalism, antiformalism, and pluralism.
Historicism emphasizes the tracing of legal ideas and institutions to their historical roots; patterns of legal evolution are seen as unplanned outcomes of the play of social forces. Important illustrations of this approach are Henry Maine’s Ancient Law, Oliver Wendell Holmes’s Common Law, and the treatments of legal typologies and evolution in Émile Durkheim’s Division of Labor in Society (1893) and various writings by Max Weber (see especially 1922a). The historicist emphasis has had two implicit objectives. First, historical study is a way of identifying legal anachronisms, especially in the reasoning behind a received rule or concept. Second, the analysis of an underlying historical trend (e.g., Maine’s thesis regarding the movement of “progressive societies” from status to contract) can provide an illuminating context for the interpretation of contemporary issues.
The instrumentalist approach, associated with the names of Jeremy Bentham and Rudolf von Jhering, among nineteenth-century writers, as well as Roscoe Pound, calls for the assessment of law according to defined social purposes. It thus invites close study of what the law is and does in fact. The chief significance of instrumentalism is that it encourages the incorporation of social knowledge into law. For if laws are instruments, they must be open to interpretation and revision in the light of changing circumstances. Moreover, law is seen as having more than one function; not only is it a vehicle for maintaining public order and settling disputes, but it also facilitates voluntary transactions and arrangements, confers political legitimacy, promotes education and civic participation, and helps to define social aspirations.
Sociological jurisprudence has gained much of its vitality from attacks upon the “unrealistic” nature of legal rules and concepts. A jurisprudence that emphasizes the purity of law as a formal system is fallible on two counts. First, legal rules are necessarily abstract and general; there is always a considerable gap between a system of general rules and its implementation, if only because the rules are applied by human agencies that have their own interests and problems. Second, any view of the legal order as an isolated system wrongly detaches it from the environment in which it is implicated. Failure to take account of the historical and cultural forces impinging upon the law not only distorts reality but gives the legal order an excessive dignity, insulates it from criticism, and offers society inadequate leverage for change. In pressing its criticism of legal abstractions, the antiformalist approach leads readily to a derogation of the importance and effectiveness of legal norms.
While antiformalism is congenial to an instrumentalist assessment of the legal tradition, it is out of sympathy with the more narrowly utilitarian image of man as an isolated, goal-seeking actor guided by a hedonic calculus. Instead, it encour-ages a fuller awareness of the nonrational springs of action, of human dependency on social support, and of the emergence of social systems that have a viability of their own. The antiformalist theme is prominent in the work of Eugen Ehrlich and of the American legal realists, but almost every analyst of the social or psychological foundations of law has struck the same note, albeit with varying emphasis.
In the history of legal sociology, “pluralism” refers to the view that law is located “in society“—that is, beyond the official agencies of government. Sociological skepticism of state law has led some legal scholars, notably Ehrlich, to deny that law is solely or even mainly made by government. Ehrlich held that law is endemic in custom and social organization; it is in the actual regularities of group life that we find the “living law.” In context, this approach is more than an appeal to bring law into closer relation with social practice; it is an assertion that authoritative legal materials are to be found in the realities of group life. In other words, it questions the claim of the state to be the sole receptacle of legal authority.
The pluralist motif was further enhanced by the central place Ehrlich gave to the “inner order of associations” as a font of law; here his work recalls Otto von Gierke’s treatment of the law of associations. Gierke stressed the reality of the autonomous collectivity, and in doing so he criticized not only the atomistic view of society and legal order as based upon individual will but also the legal notion of the association as a juridical fiction. Related ideas are found in the writings of Maurice Hauriou, who sought a legal reality in “the institution”—that is, in the association or enterprise (private as well as public) that has its own established authority and appropriate procedures.
The sociological approach
These intellectual tendencies have helped open up the boundaries of the legal order. They have enlarged the relevance of nonlegal ideas and findings to law and legal reasoning. On the other hand, they have had the common outcome of downgrading formal legal systems as significant social realities. In an important sense, the sociological school has been anti-legal. It has sought to put law in its place by emphasizing the primacy of the social context and by seeking “the legal” outside of its conventional sphere. In so doing, the sociological perspective runs the risk of dissolving the concept of law into the broader concepts of social control and social order; the idea of a “living law,” encompassing all the regularities of group life, offers no touchstone for the distinctively legal. Whatever the merits of the sociological school in having called attention to the need for a more realistic jurisprudence, the failure to offer a theory of the distinctively legal has been its cardinal weakness.
The distinctively legal
According to Max Weber, the distinctively legal emerges when “there exists a ‘coercive apparatus’, i.e., that there are one or more persons whose special task it is to hold themselves ready to apply specially provided means of coercion (legal coercion) for the purpose of norm enforcement” ([1922a] 1954, p. 13). In other words, a legal norm is known by the probability that it will be enforced by a specialized staff. Thus Weber offers an operational definition of law that is meant to exclude all value judgments in the assessment of what is or is not law. Although he emphasizes coercion, Weber is careful to point out that the threat of physical force is not essential to legal action, for coercion may consist in the threat of public reprimand or boycott. Thus Weber’s definition does not limit law to the political community; it allows for “extrastate” law, such as ecclesiastical law or the law of any other corporate group that is binding on its own members.
Weber’s approach does have a certain rough utility, and it has the special virtue of being general enough to encourage the study of law in private associations. However, he offers no satisfactory theoretical ground for identifying the requirements of a legal order as he does. The availability of a specialized staff for the enforcement of norms may be highly correlated with the existence of a legal order and thus may serve as a reliable indicator of norms that have been selected for special treatment. However, it does not follow that this is what basically distinguishes legal from nonlegal norms and institutions.
An adequate theory of law must identify the distinctive work done by law in society, the special resources of law, and the characteristic mechanisms that law brings into play. In the quest for such a theory, little is gained from formulas that place coercive enforcement of norms at the center of legal experience. The key word in the discussion of law is authority, not coercion. The fundamental problems of juris-prudence stem from the puzzles and ambiguities associated with identifying the sources of authoritative rules, the authoritative application of rules, and the nature of authoritative change in existing rules.
Although the legal requirement of paying a tax certainly has some connection with the coercive consequences of refusal to pay, the character of the obligation is more decisive. A tax is illegal if it violates an authoritative order, and it is nonlegal if it lacks appropriate authority, regardless of whether the probability of coercion exists. Hence legality presumes the emergence of authoritative norms whose status as such is “guaranteed” by evidence of other, consensually validated, rules.
H. L. A. Hart has argued that, in stepping “from the pre-legal to the legal world,” a society develops special rules for curing the defects of a social order based on unofficial norms (1961, p. 91). A regime of unofficial norms has a number of inherent limitations, including the difficulty of resolving uncertainties as to the existence or scope of a norm. No criterion or procedure is available for settling such issues. The distinctively legal emerges with the development of “secondary rules,” that is, rules of authoritative determination. These rules, selectively applied, raise up the unofficial norms and give them a legal status.
The elementary legal act is this appeal from an asserted rule, however coercively enforced, to a justifying rule. This presumes at least a dim awareness that some reason lies behind the impulse to conform; furthermore this reason is founded not in conscience, habit, or fear alone but rather in the decision to uphold an authoritative order. The rule of legal recognition may be quite blunt and crude: The law is what the king or priest says it is. But this initial reference of a historically given social norm to a more general ground of obligation breeds the complex elaboration of authoritative rules that marks a developed legal order.
Resources of legal institutions. The special work of law is to identify claims and obligations that merit official validation or enforcement. This may consist of nothing more than the establishment of a public record invested with a special claim upon the community’s respect as a guide to action. When institutions emerge that do this work we can speak of a legal order. These institutions need not be specialized, and they may have no resources for coercive enforcement; it is essential only that their determinations affecting rights and duties are accepted as authoritative.
An authoritative act asserts a claim to obedience, and the reach of that claim determines whether and to what extent a legal system exists. Although a weak legal order rests on a narrow base of consent, it may be able to mobilize very large resources of intimidation and thus command wide, if grudging, submission. A strong legal order is the product of a more substantial consensus and summons more willing obedience; it is correspondingly less dependent on the machinery of coercion. There is thus an important difference between the strength of a regime and the strength of a legal order, although the sheer persistence of the former may greatly influence acceptance for its claim to speak with authority. Of course, coercion is an important and often indispensable resource for law, but so are education, symbolism, and the appeal to reason. Coercion does not make law, though it may indeed establish an order out of which law may emerge.
In much of his work Max Weber saw quite clearly the intimate relation of the legal and the authoritative. For example, his theory of authority and legitimacy contrasts the charismatic, the traditional, and the “rational legal,” thus placing law in a context of evolving forms of authority (1922b, pp. 328 ff. in 1947 edition). In this analysis Weber views fully developed law as a system of governance by rules; he sees the distinctively legal obligation as a component of an impersonal order that exhibits a strain toward rationality. Thus when Weber actually used the concept of law, especially in his theory of bureaucracy, he greatly modified the significance of coercion.
Social foundations of legality
The view of law just sketched highlights the place of authority, consensus, and rationality in the legal order. In a developed legal order, authority transcends coercion, accepts the restraints of reason, and contributes to a public consensus regarding the foundations of civic obligation. To the extent that law is “the enterprise of subjecting human conduct to the governance of rules” (Fuller 1964, p. 106), it can be said that law aims at a moral achievement; the name of that achievement is legality or “the rule of law.” Its distinctive contribution is a progressive reduction of the arbitrary element in positive law and its administration.
As an intellectual discipline, the sociology of law has a far broader compass than the study of “the requirements of justice which lawyers term principles of legality” (Hart 1961, p. 202). Not every society gives equal weight to the ideal of “control by rule” as against other ideals; and there is much else to be said about law in society. Still, law is so intimately associated with the realization of these special values that study of “the rule of law” must be a chief preoccupation of legal sociology. Indeed, a considerable amount of contemporary research, as we shall note below, falls within this topic.
The sociological study of legality presumes that the potential of law for realizing values is at best unevenly fulfilled. Legal decision making is carried on by living men in living institutions, who are subject to all the external pressures and constraints and all the inner sources of recalcitrance that frustrate the embodiment of abstract ideals in action. At the same time, some patterns of group life are more congenial than others to the rule of law. To discover which social conditions are congenial to the rule of law and which undermine it, and in what ways, is the main task of scientific inquiry in this field. Four topics provide a framework in which research on legality can be pursued: the transition from legitimacy to legality; rational consensus and civic competence; institutionalized criticism; and institutionalized self-restraint. While these topics are suggested by the experience of the Western world, their relevance is universal.
Legitimacy and legality
The existence of legality presumes that the power exercised by public officials is “legitimate” power. This means that an appeal is made to some principle as a source of right—the right to dispose of community resources in a certain way and especially the right to issue orders and enforce them. Many different principles of legitimacy are possible—for example, divine will, democratic election, private property, hereditary succession, seniority, and special competence. What principle of legitimacy will be accepted depends on the nature of the group, its cultural heritage, and special historical circumstances. To trace the rise and decline of various principles of legitimacy is to touch on major themes of political and social history.
Legitimate power tends to be restrained. It is inherent in legitimacy that the will of the ruler, including the majority will of a democratic assembly, is not completely free. Nevertheless, many regimes properly classified as legitimate retain a very large amount of arbitrary rule. Legitimacy is only a first step toward legality. It can begin in a quite primitive fashion, meaning little more than unconscious acceptance of another’s authority be-cause he is thought to have communication with the gods or special magical powers or because he belongs to a noble family. Authority is primitive when power is legitimated by no more than a historically given public sentiment supporting a claim to rightful rule.
But legitimacy carries the lively seed of legality, implanted by the principle that the exercise of power must be justified. From this it is but a step to the view that reasons must be given to defend official acts. Reasons invite evaluation, and evaluation requires the development of public standards. At the same time, implicit in the fundamental norm that reasons should be given is the conclusion that where reasons are defective, authority is to that extent weakened and even invalidated.
The transition from legitimacy to legality requires the recognition that official acts can be questioned and appraised. The test is not whether the ruler is wise or good but whether his acts are justified by an explicit or implied grant of power. Most important, legality goes beyond a gross justification of the right to hold office; it gains strength and focus in proportion as the criterion of legitimacy is used to decide whether particular acts meet public standards of validity. For example, if conservation of natural resources is the purported foundation of rule making by a government agency, then that publicly acknowledged objective becomes available as a basis for criticizing specific rules and decisions.
Clearly some principles of legitimacy are more competent than others to sustain the ideal of legality. If power is justified on the basis of tradition, proprietorship, kinship, or hereditary succession, it is difficult to find the leverage for continuous, reasoned criticism. When prescriptive right gives way to an abstract principle, as in the case of justification by popular will, social utility, trusteeship, or even divine right, then the principle of legitimacy can be analyzed and acts assessed. The way is then open for an appeal to reason.
Rational consensus and civic competence
Legality requires that the principles of legitimacy be firmly established in the community’s habits of thought; hence the study of both the content and the quality of consensus has a special bearing on the social bases of the rule of law. Strictly speaking, there can be no purely rational consensus. However, it may be approximated under two related conditions: if the historically given, non-rational sentiments are themselves supportive of rational conduct, for example, when received modes of apprehending man and society encourage self-restraint and tolerance of ambiguity; and if there is broad opportunity for the emergence of a public opinion founded in the free play of interests and ideas. In other words, rational consensus presupposes a genuine public opinion rather than agreement based on manipulation, withholding of information, or unmitigated appeals to tradition.
Whatever contributes to rational consensus provides social support for legality. Decision making in the light of legality requires the continuous exercise of discriminating judgment, especially in the balancing of values, the elaboration of defensible rules, and the application of abstract principles to changing circumstances. While this work is largely carried on by a relatively small group of professionals, the capacity of the professionals to sustain and extend the ideals of legality depends on a parallel development of the public mind. The legal profession itself is not immune to influences that may undermine its commitment to the rule of law.
The consensus that sustains legality entails deepened public understanding of the complex meaning of freedom under law. This goes beyond passive belief or even commitment. It is an extension of civic competence—the competence to participate effectively in a legal order. This is manifested, for example, in an increased capacity to be patient with procedural niceties in the face of a desire to punish, to exercise impartial judgment, and to use principles of criticism against even the most favored leaders of government.
In a vital legal order something more is wanted than submission to law. A military establishment places very great emphasis on obedience to lawful commands, yet such a setting is hardly a model of the development of legality. So, too, a conception of law as the manifestation of awesome authority encourages a posture of submission and is fully compatible with arbitrary rule. In a community that aspires to a high order of legality obedience to law is not submissive compliance. The obligation to obey the law should be closely tied to the defensibility of the rules themselves and of the official decisions that enforce them.
If the ideals of legality are to be fulfilled, the capacity to generate and sustain reasoned criticism of the rules and of official discretion must be built into the machinery of lawmaking and administration. To this end, the Anglo-American legal tradition has relied heavily upon the availability of counsel, upon the adversary concept of the legal process, and upon the freedom of the judiciary and other officials to adopt a critical stance toward received law, both statutory and judge-made.
Sociological research in this area confronts the ideals of due process with the realities of institutional life. For example, the availability of counsel may be limited for large sectors of the population; the independence and objectivity of officials may be weakened by their social origins and commitments; and limitations of competence and resources may inhibit the judiciary from effective criticism of rule making in private and public agencies. The possibility of effective criticism may largely depend upon the availability of group resources. The lone individual seeking justice—especially if he is poor and if his claim is subject to routine processing—has little opportunity to press for new interpretations of law or of administrative regulations. Group-based counsel, on the other hand, can develop specialized expertise as well as work out a strategy for legal change.
In the Anglo—American tradition, the adversary principle has a special place as a vehicle of institutionalized criticism. It lends legitimacy to partisan advocacy within the legal process, allowing and even encouraging the zealous pursuit of special interest by means of self-serving interpretations of law and evidence. The assumptions underlying the adversary principle have not been fully analyzed or tested, nor have variations or functional surrogates in other societies been adequately studied. Moreover, there is evidence that partisan advocacy is weakened by certain factors that are becoming increasingly common in “administered” societies. Among these are the commitment of tribunals to a positive outcome, as in family conciliation proceedings; reliance on experts and investigators who serve the court directly; the mandate to temper justice with treatment, as in juvenile hearings; and the routine handling of a large number of cases.
No doubt these new problems and contexts will lessen reliance on the adversary principle in some areas; more important, however, will be the development of new forms of advocacy and critical dialogue. Administrative agencies, both criminal and civil, are increasingly recognized as active centers for making laws and dispensing justice, although the visibility of such decisions is often quite low. Sociological study of organizations can trace the actual course of decision making and can identify the opportunities available, within the social structure of the agency, for increasing the visibility of decisions and developing new forms of institutionalized criticism.
Every officer of the law—policeman, president, legislator, attorney, judge, licensing commissioner, draft board member—is in some degree a magistrate. He exercises discretion and thereby affects the rights of citizens. The rule of law requires that this discretion be restrained, yet it also asks for independent judgments in the assessment of fact, the assignment of moral culpability, and the application of legal rules to particular circumstances. To achieve restrained discretion, more is needed than criticism of authority and pressure upon it. The system depends heavily on seJf-restraint and thus on social mechanisms for building in appropriate values and rules of conduct.
Historically, legal self-restraint has been supported by public consensus on the nature and limits of authority, professionalization of lawyers and other officials, and the evolution of clearly defined roles, such as that of the judge. But there is considerable variation in that achievement, and under modern conditions there is a need for more attention to the organizational sources of self-restraint as distinguished from mechanisms of socialization. Ethical conduct is mainly found in settings that nourish and sustain it, that is, where such conduct makes sense for the official in the light of the realistic problems he faces. To design such settings is properly the chief aim of the architect of legal institutions. As applied to the legal profession, this principle has been documented in a recent study of the New York City bar (Carlin 1966).
Law and social change
The preceding discussion of the social foundations of legality emphasizes the conditions that strengthen or weaken the rule of law. The same problem may be approached historically, placing the evolution of legality in a context of broad social change and relating it to the development of other social institutions, including culturally defined conceptions of authority and justice. Thus Max Weber was interested in the emergence of rationality as a principle of organization and decision making; he saw rationality as the key to modernization and traced its effects in many fields, including law.
In modern Western society the extension of legality to new institutions and settings occurs mainly within government, encompassing wider circles of officials and agencies, subjecting more decisions to review, and raising the standard of what constitutes fair procedure. The Scandinavian ombudsman, an official to whom the citizen can appeal directly when he feels wronged by a government agency, is a symbol of the demand for new modes of redress against a large and opaque government apparatus. Also evident is a tentative movement toward legal restraint of arbitrary decision in nongovernmental institutions, especially those that serve a general public, such as colleges, trade unions, and large business firms. These developments, fostered in large measure by the work of associations formed to advance group interests, reflect a growing public sensitivity to legal rights. The legal profession itself, both by scholarship and by the official statements of its professional organizations, has contributed to the critical assessment of official procedures. Nor should it be overlooked that modern organizations, as part of their greater effectiveness and rationality, have an increased capacity to support the machinery of due process.
There is, however, an underlying conflict between administration and legality. In the first place, procedural safeguards are costly in time, energy, and the risk that action will be inhibited. In the United States, for instance, the police must carry out their traditional tasks of surveillance and apprehension subject to many new legal rulings affecting search, arrest, and detention. Any organization that has a job to do, yet must meet standards of fairness, faces this tension. Second, an official who is preoccupied with the fair application of general rules—equal treatment under law—finds it difficult to deal with each problem or case on its merits, taking account of special circumstances and needs and adapting policies to desired outcomes. The modern quest, and one that requires much supportive research, is for variable standards of fairness, embodying basic principles of procedural justice with due regard for the distinctive needs of specialized institutions and programs.
The antiformalist posture of legal sociology has encouraged interest in the problem-solving practices and spontaneous orderings of business or family life. While this approach has tended to depreciate formal law, in principle it just as easily supports an emphasis on the emergence of formal law out of the realities of group life. Incipient law is implicit in the way in which public sentiment develops or in any increasingly stabilized pattern of organization; it refers to a compelling claim of right or a practice so viable and so important to a functioning institution as to make legal recognition in due course highly probable. Thus some of the private arrangements worked out in collective bargaining agreements, especially seniority rights and protection against arbitrary dismissal, may be seen as incipient law. However, the location of incipient law cannot rest solely on the prevalence of a practice or even the urgency of a claim; two parallel assessments are required. First, the social viability of the practice in question—its functional significance for group life and especially for new institutional forms—must be considered. Second, the contemporary evolution of relevant legal principles must be assessed to see whether the new norm can be absorbed within the received but changing legal tradition.
A focus on incipient legal change bridges the concepts of law and social order without confounding the two; it assumes that law does indeed have its distinctive nature, however much it may rely on social support or be responsible to social change. On the other hand, some law is seen as latent in the evolving social and economic order. For example, the trend toward strict liability for harm caused by defects in manufactured goods (weakening or eliminating the need to prove negligence) reflects changing technology, both in manufacture and distribution, as well as the increased capacity of large firms to absorb the attendant costs either by increasing productivity or by passing them on to the general public. Similarly, the growing importance of large-scale organizations carries with it the likelihood that new claims of right will emerge, based upon a new perception of organizational membership as a protectable status.
Law as a vehicle of social change
For the most part, legal sociology has viewed law as a passive rather than active agent in social change. Law “responds” to new circumstances and pressures. However, especially in recent years the great social effects of legal change have been too obvious to ignore. The question is no longer whether law is a significant vehicle of social change but rather how it so functions and what special problems arise.
One way of approaching these problems is to consider the relative significance for social change of legislation, administration, and common law. Each has its special competence, and each has been dominant as a mode of change at different periods and in different branches of the law. In this context “common law” is not restricted to the Anglo-American legal tradition. Rather, it refers to any pattern of legal decision and evolution that relies on judicial creativity. Although this form of legal development is most explicitly recognized in what are called the “common-law” jurisdictions, in fact such creativity is inherent in the judicial process and plays an important part in the “code” jurisdictions of continental Europe (Friedmann  1960, pp. 483‱486).
The common-law approach relies heavily upon tradition and the authority of the tribunal as sources of legitimacy. Judicial elaboration of abstract ideas, including reasoning by analogy, fits new departures into a received system of concepts and rules. “Realist” criticism of common-law concepts has sometimes overlooked this social function of abstractions. Legal ideas are indeed often distant from the realities of social practice, but their very generality is useful for making new adaptations while preserving a sense of continuity and therefore of legitimacy.
The common-law method of change is mainly piecemeal and gradual. It can safeguard a precarious consensus by avoiding radical or sweeping change and by relying on studied indirection rather than unambiguous confrontation. On the other hand, judges who have the authority to interpret a basic statute, such as a written constitution, can provide leadership in some branches of the law, as United States history has shown. In such a case, public commitment to the statute reinforces the legitimacy of judicial decision.
The great weakness of common-law empiricism is the difficulty of working out comprehensive attacks on new problems, such as urban land use, industrial accidents, or labor-management relations. The common-law approach seems to work best when basic policy is settled and the need is for refinement of distinctions and adaptation of the policy to new settings.
Legislation is the most obvious way of bringing political will to bear for the purpose of effecting social change through law. Unlike courts, which are tied to tradition, legislatures are commonly perceived as legitimate agencies for innovation; they can muster better means of inquiry, and they can create administrative agencies to execute and elaborate legislative policy.
There are important continuities, as well as tensions, in the relation between legislation and common law. Where these continuities and tensions occur, jurisprudential problems of law and social change arise. For example, a series of statutes can be viewed as creating a new “field” of law (such as labor law or welfare law), with the result that authoritative concepts and doctrines emerge which go beyond the letter of the statutes and form starting points for legal reasoning. This work of interpretation and elaboration, using a common-law perspective, is carried on by administrative agencies as well as courts. Its effect is to institutionalize the statutory policy.
Although politics and legislation are the basic sources of legal change in modern society, the administrative agency is a characteristic and potent vehicle of that change. It can summon material and human resources, including moral dedication and professional zeal, for turning legislative policy into social reality. An administrative agency can contribute to law by detailed rule making, its own adjudications, the patterned course of discretion it adopts, the practical effect it has on the social structure, and the initiative it may take in proposing statutory changes. However, agencies differ markedly in their capacity to influence law and society. Much depends on whether the agency conceives of itself as active or passive; this in turn reflects the nature of its special constituency, if any, as well as the newness and popular appeal of the program, the initial resources it is given, and the relations it may develop with other agencies. Some agencies are captives of their constituencies, including groups they are supposed to regulate, and contribute little to legal development.
Perhaps the most basic resource of the law for fostering and guiding social change is the set of legal principles that can be invoked to justify action in their name. This is especially true of constitutional principles that contain ideals of civic right. Such ideals are usually only imperfectly embodied in the operative rules of a given time and place. For long periods the gap between the legal ideal and the legal reality may be accepted with passivity and even good will, but social change may bring with it new opportunities for more perfect embodiment of the ideal in practice and a quickened awareness of this possibility. The result is twofold: Energy for social change is enlarged by a sense of legitimacy, and those who attempt to defend the status quo are made vulnerable and placed on the defensive. Thus law both contributes to rising expectations and may, in due course, provide vehicles for their realization.
Major trends. Several large-scale social changes have contributed to a vast increase in the tasks that must be assumed by a modern legal order. As kinship, fixed status, and community have declined as sources of social control, the drift has been toward a mass society marked by high rates of mobility, fragmented social experience, rising demands for short-run gratification, and more active participation by large numbers in hitherto insulated areas of social life. This trend has resulted in greatly increased pressure on formal agencies of regulation and service. A related development has been the emergence of the large organization as the representative institution of modern society; it depends upon, and also summons, mass participation in economic, political, and cultural life. A new “corporatism” brings with it many new problems for the law, including assessment of the social responsibilities of private associations, blurring of the distinction between private and public law, concern for the rights of association members, and regulation of competition and conflict when self-governing market mechanisms break down (Friedmann 1959).
A third significant trend has been the ascendance of social interests over parochial interests. The increasing interdependence of existence in modern society and correlative changes in values have weakened the claims of private interests and stimulated the quest for criteria of social worth. This is the foundation of what has been called the “socialization of law.” As described by Pound (1959), the socialization of law is manifested in a growing tendency to impose limitations on the use and disposition of property, on freedom of contract, and on the power of creditors to exact satisfaction; in the movement toward liability without fault; and in many other legal rules and concepts. While this trend undermines the concept of the individual as a holder of abstract rights, it tends strongly to make the person an object of social and legal concern. This is reflected in much welfare legislation, which often begins as a way of solving a social problem and increasingly turns attention to the needs of persons.
Recent efforts to encourage the sociology of law have emphasized the need for empirical research and for a corresponding sense of relevance to con-temporary social problems. The newer work is less interested in showing the limitations of law relative to other forms of social control than in bringing the expertise of social science to bear on the analysis of specific problems. It is likely that in the future legal sociology will be characterized by an affirmation of law rather than by a downgrading of it. This is especially true of research on the administration of justice. Studies of tribunals and other legal agencies may be narrowly concerned with efficient use of scarce resources, but they also tend to compare the ideal and the reality. As the “morality of law” (Fuller 1964) becomes a subject for empirical research, there will be a natural tendency to stress the contribution law can make to a moral order.
In line with this emphasis, much current research centers on social aspects of the administration of justice, as in studies of the jury (Kalven & Zeisel 1966; Simon 1967), patterns of law enforcement (Lindesmith 1965; Skolnick 1966), juvenile justice (Tappan 1947; Matza 1964), and the legal profession. Most of this work is normative as well as factual: It seeks out the conditions and processes that undermine or support procedural fairness and the recognition of basic rights. There is an implicit demand for fulfillment of legal ideals.
A more ambiguous attitude toward the moral significance of law is found in the sociology of deviance. Here the recent emphasis is on the law’s role in creating deviance (Becker 1963). This occurs in two ways. First, the definition of what is “criminal” is a social process; and in borderline crimes, where consensus is weak, large numbers of people may find themselves classified as “criminals” as a result of political action by moralists. When this occurs, there is a strong tendency for illicit activity to continue, for that activity to take on more determinate criminal form, and for the quality of law enforcement to suffer. Second, a casual offender may be transformed into a committed deviant by the legal “processing” to which he is exposed, especially when he is systematically treated as a deviant and stigmatized as such. Under these circumstances law breeds illegality. The normative lesson is: To preserve the integrity of law it should be used with restraint in the control of personal conduct, especially where the specific harm is problematical and may be exceeded by the social costs of ineffective enforcement (Schur 1965).
Other research includes studies of public opinion and law (Cohen et al. 1958), legal forms and economic realities (Berle 1959; Macaulay 1963), judicial values and perspectives (Schubert 1960), the extension of legal or quasi-legal rights to members of “private governments,” such as the large corporation (Eels 1962), and social history of legal ideas and institutions (Friedman 1965; Hall 1935; Hurst 1950; I960; 1964). The comparative study of law and society is being stimulated by scholarly interest in the “developing” nations (Anderson 1963; Lev 1965), by the assessment of changes in communist society (Berman 1950; Hazard 1953; 1960), and by a marked tendency among some students of comparative law to take fuller account of social and political contexts (Von Mehren 1963).
The major problem of legal sociology remains the integration of jurisprudence and social research. Unless jurisprudential issues of the nature and functions of law, the relation of law and morals, the foundations of legality and fairness, and the role of social knowledge in law are addressed by modern investigators, the sociology of law can have only a peripheral intellectual importance.
Andersonm, James N. D. (editor) 1963 Changing Law in Developing Countries. New York: Praeger.
Arens, Richard; and Lasswell, Harold D. 1961 In Defense of Public Order: The Emerging Field of Sanction Law. New York: Columbia Univ. Press.
Becker, Howard S. 1963 Outsiders: Studies in the Sociology of Deviance. New York: Free Press.
Berger, Morroe (1952) 1954 Equality by Statute: Legal Controls Over Group Discrimination. New York: Columbia Univ. Press.
Berle, Adolf A. 1959 Power Without Property: A New Development in American Political Economy. New York: Harcourt.
Berman, Harold J. (1950) 1963 Justice in the U.S.S.R.: An Interpretation of Soviet Law. Rev. & enl. ed. Cam-bridge, Mass.: Harvard Univ. Press. → First published as Justice in Russia: An Interpretation of Soviet Law.
Carlin, Jerome E. 1962 Lawyers on Their Own: A Study of Individual Practitioners in Chicago. New Brunswick, N.J.: Rutgers Univ. Press.
Carlin, Jerome E. 1966 Lawyers’ Ethics: A Survey of the New York City Bar. New York: Russell Sage Foundation.
Cohen, Julius; Robson, Reginald A. H.; and Bates, Alan 1958 Parental Authority: The Community and the Law. New Brunswick, N.J.: Rutgers Univ. Press.
Davis, F. James et al. 1962 Society and the Law: New Meanings for an Old Profession. New York: Free Press.
Dicey, Albert V. (1905) 1962 Lectures on the Relation Between Law and Public Opinion in England, During the Nineteenth Century. 2d ed. London and New York: Macmillan. → A paperback edition was published in 1962.
Durkheim, ÉMILE (1893) 1960 The Division of Labor in Society. Glencoe, 111.: Free Press. → First published as De la division du travail social.
Durkheim, ÉMILE (1950) 1958 Professional Ethics and Civic Morals. Glencoe, 111.: Free Press. → First published, posthumously, as Lecons de sociologie: Physique des moeurs et du droit.
Eels, Richard 1962 The Government of Corporations. New York: Free Press.
Ehrlich, Eugen (1913) 1936 Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll with an introduction by Roscoe Pound. Cambridge, Mass.: Harvard Univ. Press. → First published as Grundlegung der Soziologie des Rechts.
Evan, William M. (editor) 1962 Law and Sociology: Exploratory Essays. New York: Free Press.
Friedman, Lawrence M. 1965 Contract Law in America: A Social and Economic Case Study. Madison: Univ. of Wisconsin Press.
Friedmann, Wolfgang (1944) 1960 Legal Theory. 4th ed. London: Stevens.
Friedmann, Wolfgang 1959 Law in a Changing Society. Berkeley: Univ. of California Press.
Fuller, Lon L. 1964 The Morality of Law. New Haven: Yale Univ. Press.
Geiger, Theodor (editor) 1964 Vorstudien zu einer Soziologie des Rechts. Berlin and Neuwied: Luchter-hand. → See especially “Internationale Bibliographic der Rechtssoziologie” by Paul Trappe.
Gurvitch, Georges D. (1940) 1947 Sociology of Law. Preface by Roscoe Pound. London: Routledge. → First published in French.
Hall, Jerome (1935) 1952 Theft, Law and Society. 2d ed. Indianapolis, Ind.: Bobbs-Merrill.
Hart, H. L. A. 1961 The Concept of Law. Oxford: Clarendon.
Hazard, John N. 1953 Law and Social Change in the U.S.S.R. London: Stevens.
Hazard, John N. 1960 Settling Disputes in Soviet Society: The Formative Years of Legal Institutions. New York: Columbia Univ. Press.
Hurst, James W. 1950 The Growth of American Law: The Law Makers. Boston: Little.
Hurst, James W. 1960 Law and Social Process in United States History. Ann Arbor: Univ. of Michigan Law School.
Hurst, James W. 1964 Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin; 1836–1915. Cambridge, Mass.: Harvard Univ. Press.
Kalven, Harry; and ZEISEL, HANS 1966 The American Jury. Boston: Little.
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Lindesmith, Alfred R. 1965 The Addict and the Law. Bloomington: Indiana Univ. Press.
Llewellyn, Karl N. (1928-1960) 1962 Jurisprudence: Realism in Theory and Practice. Univ. of Chicago Press.
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Mannheim, Hermann 1946 Criminal Justice and Social Reconstruction. London: Routledge.
Matza, David 1964 Delinquency and Drift. New York: Wiley.
Pound, Roscoe 1959 Jurisprudence. 5 vols. St. Paul, Minn.: West. → Volume 1: Jurisprudence: The End of Law. Volume 2: The Nature of Law. Volume 3: The Scope and Subject Matter of Law. Volume 4: Application and Enforcement of Law. Volume 5: The System of Law. Volume 1 reviews the main literature of sociological jurisprudence.
Renner, Karl (1929) 1949 The Institutions of Private Law and Their Social Functions. London: Routledge. → First published as Die Rechtsinstitute des Privatrechts und ihre soziale Funktion: Ein Beitrag zur Kritik des biirgerlichen Rechts.
Schubert, Glendon 1960 Quantitative Analysis of Judicial Behavior. Glencoe, 111.: Free Press.
Schur, Edwin M. 1965 Crimes Without Victims. Engle-wood Cliffs, N.J.: Prentice-Hall.
Simon, Rita (JAMES) 1967 American Jury —The Defense of Insanity. Boston: Little.
Simpson, Sidney P.; and Stone, Julius (editors) 1948–1949 Cases and Readings on Law and Society. 3 vols. St. Paul, Minn.: West.
Skolnick, Jerome H. 1966 Justice Without Trial. New York: Wiley.
Tappan, Paul W. 1947 Delinquent Girls in Court: A Study of the Wayward Minor Court of New York.New York: Columbia Univ. Press.
Timasheff, Nicholas S. 1939 An Introduction to the Sociology of Law. Cambridge, Mass.: Harvard Univ., Committee on Research in the Social Sciences.
Vinogradoff, Paul 1920-1922 Outlines of Historical Jurisprudence. 2 vols. Oxford Univ. Press. → Volume 1: Introduction; Tribal Law. Volume 2: The Jurisprudence of the Greek City.
Von Mehren, Arthur T. (editor) 1963 Law in Japan: The Legal Order in a Changing Society. Cambridge, Mass.: Harvard Univ. Press.
Weber, Max (1922a) 1954 Max Weber on Law in Economy and Society. Edited, with an introduction and annotations by Max Rheinstein. Cambridge, Mass.: Harvard Univ. Press. → First published as Chapter 7 of Wirtschaft und Gesellschaft.
Weber, Max (1922b) 1957 The Theory of Social and Economic Organization. Edited by Talcott Parsons. Glencoe, 111.: Free Press. → First published as Part 1 of Wirtschaft und Gesellschaft.
The comparative analysis of the social structures of legal systems has its historical roots in the study of comparative law. It is possible to draw an analytical distinction between the two disciplines. Comparative structural analysis is a sociological endeavor. Its subject matter is the organization of legal activity and the variable character of the groups and social roles involved in the legal process; its primary goal is the discovery and explanation of regularities in institutional structure and development. Comparative law, on the other hand, is a jurisprudential study. Its practitioners are interested in the normative content of various systems of law and are often motivated by a desire to seek the fairest and most effective means of ordering the legal relations between men. Nevertheless, the intimate connection between the two fields should not be overlooked. In one branch of comparative law the sociological element is particularly strong: students of comparative legal history have generally accepted the proposition that legal concepts and modes of legal thought reflect an under-lying framework of social organization. Thus, legal historians have often viewed the normative content of law from a sociological perspective.
ORIGINS OF THE STRUCTURAL APPROACH
The sociological perspective is at least as old as the Enlightenment and Montesquieu’s classic,De I’esprit des lois(1748). Montesquieu found the sources of law in climate and geography and in the social institutions and national character of a people.
The concept of national character pervades the work of Friedrich Karl Savigny, who is generally regarded as the founder of historical jurisprudence (Stone  1950, chapter 18). Savigny wrote in the context of a national debate regarding the proposed codification of German law. He argued that codification would destroy the peculiarly Germanic character of German law and that the loss of national distinctiveness would be disastrous because any system of law must truly reflect the spirit and genius of the institutions of a people. To document his views, he produced a series of scholarly volumes on Roman and German law that were de-signed to demonstrate the close correspondence between social and legal development in those nations.
From here it is but a short, logical step to our contemporary interest in the relation between the “positive” norms of the law of the state and the de facto norms which emerge from the institutions of the larger society. In American sociology this concern has independent roots in William Graham Sumner’s interest in the mores, the folkways, and the stateways (1906), and in E. A. Ross’s emphasis on social control (1901; see also F. J. Davis et al. 1962, chapters 1, 2). On a global scale, however, the dominant transitional figure was the Austrian jurist Eugen Ehrlich (1913).
The proposition that laws ought to reflect the peculiar character of a nation’s social institutions is easily transformed into the closely related view that such a correspondence is desirable but has not been achieved. Ehrlich became disturbed by the failure of the conceptual apparatus of positive law to adequately reflect the “living law.” For Ehrlich the living law is the de facto normative pattern that develops as competing social interests are resolved within the many groups and institutions constituting the “inner order” of a society.
In the English-speaking world the works of Sir Henry Sumner Maine (1861) had a profound impact on jurists and social scientists alike, since Maine attempted to trace both the evolutionary development of legal concepts and the social developments that produced them. Maine’s posthumous influence extended to the Continent, where it played a role in shaping the thought of scholars within the emerging discipline of sociology.
Weber’s comparative studies . Among those Con tinental scholars, Max Weber (1922) formulated the most comprehensive accounts of comparative legal structure. Weber’s investigations were carried out as a part of his inquiries into the causes and consequences of the “rationalization” of the Western world. “Rationalization” in this context refers to the process by which aninstitution becomes systematically and logically elaborated according to general, analytical, and calculable principles.
Weber developed one of his characteristic ideal typologies for distinguishing the various types of legal thought found in the history of juristic development. He then elaborated one of Maine’s fundamental ideas by showing that each type of legal thought is associated with a given form of legal organization and particularly with the structural location of legal specialists. Thus, for example, the logical rationality of Continental European conceptual jurisprudence is attributable to the influence of university-based professors who turned their philosophically trained intellects to the task of expounding the Roman law as alogically closed, abstract system.
Weber also examined the impact of variation in the structure of both governmental institutions and power relations among elite groups. He pointed out that the forms of legal development fostered by the university-based Romanists appealed to the interests of monarchs and bureaucrats in systematic administration and to the concerns of the rising capitalist class with the predictable protection of private rights.
Weber’s account of comparative legal structure must also be seen in the context of his general interest in the rise and development of capitalist economic structure. His analysis of the role of law in capitalist development is effectively summarized in his treatment of the change in the concept of “special law.” We may speak of special law when legal obligations apply differentially to different groups of people. According to Weber, special law originated in the differentiation of society into various status groups each with its traditional code and a degree of feudal independence from regulation by agents of the larger society. By contrast, the modern law of the centralized, bureaucratic state permits the different units of society to enter into legally binding contracts with each other. Thus, the power of the state is made to support bodies of special law created de novo by capitalists with interdependent interests.
Durkheim’s theory of sanctions . Weber’s theory converges with the ideas of the French sociologist Emile Durkheim (1893), who, following in a direct line of influence from Maine, was interested in the transition to a social order based upon contract.
Durkheim speculated that differences in legal structure so closely reflect underlying differences in social structure as to constitute indices of types of societies. In primitive societies the bonds of cohesion are formed by the global, undifferentiated norms of the “common conscience.” In such a so ciety, law is repressive; it operates through sanctions designed to obliterate offenses to the common conscience and heal its wounds. Over time, as social solidarity comes to depend more and more upon the interdependence of specialized units, the legal order also becomes differentiated. Bodies of specialized norms develop, which are backed by restitutive sanctions designed to restore the balance of interests between competing but interdependent social groups. The new type of law permits private groups to negotiate within the context of general normative limitations and to contractually create for themselves viable systems of enforceable legal obligations.
Thus, Durkheim and Weber converged in a common recognition of an important dimension of structural variation in legal systems, namely, the extent of reliance on private action to create legal obligation. At the same time, both recognized the critical importance of the problem of the articulation of the authority of the larger society with private legal obligations.
PROBLEMS OF STRUCTURAL ANALYSIS
Given Western legal values, one problem area stands out as the central concern of comparative structural analysis: What are the various ways that legal systems relate to their social environment and, in particular, what are the structural correlates of legal independence?
DEFINING THE SYSTEM
The first problem is to establish an analytical boundary between the legal system and its environment by defining the term “legal system.” This is a notoriously difficult problem. Not the least of the difficulties stems from the fact that definitions that are adequate to the task of defining law in modern states fail to include the law of societies in which legal relations are inextricably entangled in other institutional contexts. One solution is to define the legal system functionally, so that its existence is not made to depend upon a structurally distinct set of roles or upon groups such as courts or police.
Many functional definitions rely upon the concept of social control (F. J. Davis et al. 1962, chapter 2). Law is defined as a type of social control that relies on a particular form of enforcement, usually enforcement through the legitimate use of force. Parsons (1962) and others would rather treat enforcement as a political function, external to the legal system. The advantage of this strategy is that it focuses attention on the variable structural arrangements through which legal systems come to have access to sources of coercive power.
In this view, the peculiar province of law is interpretation. Social integration is often attributed to normative controls. However, social norms are not sufficiently specific to provide authoritative guides to conduct. Further, consensus about norms is often accompanied by dispute about the facts to which norms are to be applied. Accordingly, procedures develop for issuing authoritative versions of ambiguous situations of conflict and for propounding binding rules tailored to the particularities of these situations. Enforcement, on the other hand, isa political problem, a problem of mobilizing sufficient power to implement legal decisions.
Those who insist on including enforcement within the legal system can reply that interpretation is a necessary component of any act of enforcement. Interpretation could never be isolated in any single differentiated institution. A viable research strategy must guard against the fallacy of neglecting the fact that consequential interpretive decisions are continually being made at many points in the social structure.
SYSTEM AND ENVIRONMENT
However the boundaries of the legal system are drawn, the problem of conceptualizing relations with the environment remains. There are a variety of ways of viewing this problem, but in Western thought one approach has dominated analysis. The problem has been defined as one of accounting for the independence of the legal system. Western political philosophy has accorded a high place to the “rule of law.” From a sociological perspective, the rule of law refers to a society with a differentiated legal system, free from domination by any other institutional complex. Where the rule of law prevails, the legal process is subordinate only to established, known, and universalistic rules. Given this value concern, the task of comparative sociology is to account for the social basis of the rule of law.
To this end, we may distinguish four types of relations between the legal system and its social environment. First, the legal system may be undifferentiated, that is, it may have no differentiated structural home. Thus, legal functions are performed only as a by-product of activity within other institutions. For example, among the Eskimos socially enforceable interpretations are implicitly made in the context of public curing ceremonies and popular assemblies and in ritualized combat of various sorts, but there are no specialized procedures for formally proclaiming enforceable decisions (Hoebel 1954, chapter 5).
Second, a system may be subordinate. In this case specialized formal procedures, involving specially designated personnel, are present but legal activities are controlled by other institutions. For example, justice may be dispensed by the king’s ministers, as in ancient Egypt, or by priests subject to sacerdotal discipline, as in Sumer and Babylonia.
Third, a system may be autonomous. The legal practitioners may become so insulated from external controls as to become unresponsive to demands from other quarters. In these circumstances a legal system will develop according to an inner dynamic reflecting the dominant concerns of the practitioner group. Thus, for example, religious scholars may treat the law as a logical elaboration of theological concepts. The outstanding example of this is the development of the Semitic legal tradition.
The fourth category is the most complicated, as well as the most highly prized, in legal philosophy. Legal systems may be called partially independent when they are sufficiently insulated to permit independence in some spheres but not so protected as to prevent adaptive responses to the needs of other sectors of the society. The “ideal” form of partial independence is procedural independence. In this case, insulating mechanisms protect the day-to-day operation of the legal system and the interpretive process but do not make the system unresponsive to social interests, as formulated into general policies by legislatures and organized public opinion.
The concept of procedural independence must not be confused with the discredited idea that the judicial process can be purely mechanical or logical. American political science and legal realism have effectively shown that legal decisions necessarily involve choices between alternative policies. The difference between autonomy and procedural independence is that in the latter case adjudicators are responsive to policy premises originating outside the legal system.
Procedural independence is not only highly valued; it is also a crucially important case for sociological theory. Theorists as divergent as Weber (1922) and Engels (Marx & Engels 1848-1898, pp. 447–448 in 1949 edition) have stressed that procedural independence may contribute to the interests of particular social classes or institutions. An independent legal system, operating through the universalistic interpretation of established rules, is an efficient vehicle for legitimizing political domination. Further, such a system provides a set of stable expectations that facilitate economic calculation. A degree of procedural independence may emerge as a response to the conditions of stable economic relations, even in the face of considerable political domination of the legal process. For instance, contractual arbitration in the Soviet Union became subject to the rule of law in order to foster accountability and stability in the relations between economic units (Berman 1950).
LAW AS SOCIAL INSTITUTION
The demand for stabilization of economic rights is only one of the forces supporting procedural in-dependence. It is the task of comparative analysis to explicate the various structures and mechanisms that either insulate legal systems or make them vulnerable to external demands. Many protective devices are quite familiar; judicial tenure, judicial review, constitutional limitation, and judicial control over enforcement officials are obvious sources of judicial power. But from a sociological point of view the important question is, How are these mechanisms institutionalized? that is, How are they supported by concrete social arrangements?
A number of components of social structure are involved in the patterning of the relations between legal systems and other social institutions, but one factor has seemed especially important to sociologists. Comparative analysts have been particularly interested in the impact of the structure of professional specialization.
The significance of the structural location and internal organization of professional groups is implicit in what has already been stated. Undifferendated legal systems, having no specialized legal procedures, lack persons with special legal functions. Once a differentiated legal system develops, its character is profoundly affected by the social characteristics of its associated professionals. Indeed, one of the central propositions of comparative legal sociology is that autonomous and independent legal systems are supported by tightly organized professional groups, with an independent power base, whereas subordinate legal systems reflect the dependency and weakness of legal specialists.
Apart from this general proposition, it may also be asserted that specific characteristics of legal systems may be derived from attributes of professional groups. To take an obvious example, when adjudication is controlled by religious functionaries, then law is likely to have religious overtones.
Four major categories of legal specialists can be distinguished for present purposes. The first group may be broadly designated adjudicators and includes judges, magistrates, arbitrators, referees, hearing examiners, and similar functionaries. The second group consists of professional advocates of legal causes. The third group consists of legal advisers, such as the familiar English solicitor. No taries, conveyancers, and other draftsmen, also, belong in this category, and their significance should not be underestimated. As Weber ( 1954, pp. 72–201, 210) has shown, where private elements are strong in the legal system, these “auxiliary” jurists assume special importance. When the state assures the bindingness of private agreements, the drafters of legal documents may become legal innovators who play an important role in shaping legal development.
The fourth group consists of the legal scholars —the teachers, writers, historians, and commentators whose contributions have been very important in both the Roman and civil law and in many non-Western traditions as well.
The four categories of legal specialists may or may not be differentiated from each other in practice, and the type and degree of internal differentiation is one of the important structural features of a legal system. Another of Weber’s hypotheses is that the intensely practical and empirical character of the common law reflects the fact that it developed at a time when teaching was not differentiated from legal practice; there were no specialized scholars to impart an abstract ideological content to the law.
Professional organization. The internal differentiation of the legal profession is only one organizational element among many within the profession. Patterns of professional recruitment and advancement, the organization of professional training, and the organization and control of professional practice may have important consequences for the operation of the legal system. The explana-tory potential of these variables is illustrated in Ulf Torgersen’s study of the small and declining political role of the Norwegian Supreme Court (1963). The relative insignificance of judicial re-view is attributable to the patterns of recruitment to the court, which has been increasingly dominated by career bureaucrats rather than private attorneys.
Tight professional control over recruitment, training, advancement, and practice, founded upon a monopoly of access to technical legal knowledge and a monopoly of the right to legal advocacy, is one major source of independence and autonomy. However, there are other sources of legal power. The independence of legal specialists may be supported by the sponsorship of representatives of other powerful groups. Thus, adjudicators may be insulated from the domination of economic interests by the sponsorship of governmental power, or vice versa.
Symbolic factors are often especially powerful in the legal sector. Legal specialists have rivaled religious functionaries in their capacity to assert successfully claims of special access to the sources of truth and right. Such claims have been supported by a variety of symbolic paraphernalia, ranging from magic and ritual to the more subtle trappings of modern judicial dignity. Ritualistic practices should not be discounted, but in modern liberal democracies the most important bulwark of legal independence has been the capture of the right to symbolically represent the limitation of governmental power. In this sense, the rule of law has supported itself; the independent professionals, who provide its social foundation, derive their influence in part from their symbolic embodiment of the normative regulation of power.
THE LEGAL PROCESS
Another approach to the articulation of the legal system and its social environment would eschew the abstract analysis of the structural location and internal organization of legal specialists in order to concentrate on the con-crete transactions between legal specialists and representatives of other spheres.
These transactions include such processes as litigation, professional consultation, judicial enforcement, appointment or election to adjudicative office, and complaint to legal authorities.
According to this view, the proper strategy for comparative analysis is to study the structural arrangements that pattern interaction between legal specialists and others. The structural framework of legal transactions shapes their content and often provides leverage for either the legal system or its potential adversaries.
For example, one of the functions of formal legal procedure is to compel the parties to legal disputes to mold their concrete conflicts into issues subject to normative settlement. In so doing, the parties are forced to isolate normative issues and eliminate extraneous power factors. Power factors come to be defined as being outside of the scope of inquiry, and the adjudicator thus gains leverage on his clients.
On the other hand, the process of litigation is structured by the characteristics of cases that are preshaped by social organization before they come to the attention of legal authorities. Social structure generates a variety of types of conflict. Some conflict situations are channeled to the legal system; others are resolved in other contexts. Ready access to the legal system may depend upon a preferred position in the social order. Further, even among those who have ready access to the legal system, litigation is a strategic alternative to a variety of other modes of pressing interests. In consequence, legal officials are not always in a position to control the types of issues that come before them or the structural context within which issues are presented. Thus, litigation can be conceived of as a series of transactions between the legal system and other social components, which are structured in part by the legal system and in part by external factors. Other transactions are subject to similar analysis.
EVOLUTION OF LEGAL SYSTEMS
A third approach to comparative analysis may be described as evolutionary: How, and in what sequence of steps, have differentiated legal systems emerged?
In this respect, Durkheim’s thought runs counter to Weber. Weber was concerned with the emergence of the modern state from its feudal predecessors, and in this context he stressed the lack of centralized machinery of enforcement in many preindustrial societies. Durkheim, in his insistence on the importance of repressive sanctions in primitive society, seems to assume that the existence of societal enforcement mechanisms is not problematical. The anthropologists and historians who are students of legal evolution cannot agree with him. They continually search for the analogues to the legal process in “stateless” societies and trace the development of differentiated legal systems based upon a state monopoly of legitimate enforcement power.
The gradual development of central legal machinery in Europe has been known to legal historians for some time (F. J. Davis et al. 1962, chapter 2; Wigmore 1928). Scholarly interest in the evolution of legal procedure has been reawakened recently, in part because of concern for the problems of world legal order. The sequence of development from primitive self-help to central enforcement of norms through a universalistic, normatively regulated procedure has intrigued those who are interested in the possibility of a similar development at the world level [see Inter-national law].
R. D. Schwartz and J. C. Miller (1964), in a cross-cultural study of 51 societies, have shown that three structural attributes of legal procedure combine in a systematic pattern that can be described as a cumulative scale. The representation of interests by third parties is found only in societies with both special police forces and third-party mediation of disputes. Police and mediation sometimes occur in the absence of representation, and sometimes mediation is found in the absence of any police to carry out the orders of mediating agencies. In some societies none of these procedural devices is present. The authors also found that the elaboration of legal procedure as measured by position on the cumulative scale is associated with measures of societal complexity, suggesting an evolutionary sequence of development. The sequence suggested is consistent with Western legal development as it has been pieced together by juristic scholars. The earliest legal systems are barely legal. The closest approximations to legal institutions are the rules governing kin-organized feuding and the sets of traditional compensations for wrongs. Later, regular procedures for submitting feuds to arbitration develop, but even then the parties may need to resort to self-help for enforcement. With the monopolization of legitimate force in the hands of the state, the legal system may rely on a specialized police force for enforcement of adjudicative orders. Finally, given a forum for binding and enforceable arbitration, the stage is set for the full development of professional advocacy.
GROWTH OF LEGAL PLURALISM
Historians have paid particular attention to the first two steps in the process. Law is said to appear in fully differentiated form once there is centralized enforcement of binding adjudication. From the perspective of comparative structural analysis the third step, also, is crucial, for with the appearance of institutionalized representation comes powerful support for procedural independence. For the first time there exists a set of legal specialists whose interests are not identical with the interests of mediators. It is possible that the new representer group will be captured by a particular set of interests, but theoretically the requisite social supports are present for the introduction of pluralism into the structure of the legal system. Professional representation can bring to the day-to-day administration of justice effective legal advocacy of the full range of interests present in society.
One step to pluralism is the creation of a market for professional services, so that legal representation can be purchased without regard to the content of the claims one wishes to advance. This requires either a high degree of professional neutrality or heterogeneity in the backgrounds and interests of recruits to professional service.
The establishment of a market for legal services is not a sufficient condition for pluralism, since the professional market will reflect the imperfections and inequalities of the economic structure of society. Since the inequalities of the marketplace may be overcome byvarious procedural devices and by effective organization for legal advocacy, the variable organization of access to representation is one of the most important elements in the comparative study of modern legal systems.
In many instances ready access to the legal system has been promoted through the creation of administrative remedies, which permit rights to be secured by direct application to administrative agencies of government. Traditional courts and their sometimes cumbersome procedures are bypassed. At the same time, in their judicial activities the administrative agencies operate in at least a quasi-judicial fashion, preserving many of the forms of law and subjecting themselves to the rule of law. Administrative procedure tends to be more informal than traditional legal procedure, and is less likely to involve formal adversaries. It can therefore permit the adjudicator a relatively free hand to shape solutions that take into account the particularities of a given case. Yet, administrative procedure is normatively regulated, and the standards of impartiality and decision according to law apply.
The tremendous burgeoning of administrative law in the twentieth century is the most recent chapter in legal evolution. On this count, Durkheim’s sense of evolutionary development fared well, for he successfully foretold the growth and elaboration of administrative law. For Durkheim administrative law was an integral part of the restitutive approach to law; the moral order, as represented by the common conscience, seemed to him less important than effective administration of a complicated network of obligations.
From this perspective, the growth of administrative law should be interpreted as consisting in the legalization of administration. It is simply an aspect of the process of bureaucratization that accompanies economic development. The increasing involvement of government in large-scale economic and welfare projects has been a world-wide phenomenon. The requirements of efficient administration and the interests of bureaucratic officials have combined to create pressure for the stabilization of rights and obligations.
Important as it is, the legalization of administration does not entirely account for the increasing domination of administrative law, for there has been a corresponding and converging development on the legal side. Many administrative tribunals have been created to operate in areas that have been exclusively within the jurisdiction of courts. Numerous boards, commissions, and authorities have sprung up to deal with various criminal actions and tort claims.
Again one may invoke the argument of efficiency. The administrative tribunal has numerous practical advantages: it is less costly to litigants; it permits a high volume of litigation; it permits adjudication by specialists who are both technically skilled in particular areas and well acquainted with the concrete, practical problems of administration; it permits individualized treatment of complicated situations. But efficiency is not a sufficient explanation, unless one can show that particular groups have an interest in efficient administration. In this context, the growth of democracy is crucial (Evan 1962). Populist governments are responsive to demands for efficient administration of programs designed to produce public wel-fare and economic development. In the United States, for example, the growth of administrative law has been stimulated by a tendency for social welfare legislation to become bogged down in courts and by a movement to temper all legal administration by the application of a philosophy of social welfare.
Despite its humanitarian credentials, the growth of administrative law is often viewed with alarm in countries with a strong legal tradition. It is not surprising that administrative law should be sur-rounded by controversy, for its emergence is a classic case of a process that is usually associated with social strain. Whenever a group claims that special expertise or special familiarity with problems gives it a right to perform functions that were traditionally handled at other social locations, conflict ensues. Conflict is heightened when the technical specialist claims that his expertise frees him from some of the normative restraints that have governed performance of the function in the past. Yet this is exactly the claim of emergent administrative systems. The very differentiation of the legal function appears threatened as legal systems lose functions to substantively specialized but multifunctional enforcement agencies. All these processes have still to be adequately studied by students of contemporary social organization.
Leon H. Mayhew
[Directly related are the entriesAdministrative law;Criminal law;Legal systems;Police;Punishment;Social control.Other relevant material may be found in Jurisprudence;Legal reasoning;and in the biographies of Beccaria;BlackStone;Coke;Durkheim;Ehrlich;Hauriou;Maine;Montesquieu;Savigny;Weber,Max.]
Berman, Harold J. (1950) 1963 Justice in the U.S.S.R.: An Interpretation of Soviet Law. Rev. & enl. ed. Cam-bridge, Mass.: Harvard Univ. Press. → First published as Justice in Russia: An Interpretation of Soviet Law.
Davis, E. Eugene 1962 Legal Structures in a Changing Society. Pages 196–226 in F. James Davis et al., Society and the Law: New Meanings for an Old Profession. New York: Free Press. → Summarizes, from a lawyer’s point of view, the administrative problems of the contemporary United States court system.
Davis, F. JAMES et al. 1962 Society and the Law: New Meanings for an Old Profession. New York: Free Press. → A symposium in which sociologists collabo-rated with lawyers. Chapter 1, “The Sociological Study of Law,” is especially useful for its summary of sociological interest in law in the United States since 1900.
Durkheim, ÉMILE (1893) 1960 The Division of Labor in Society. 2d ed. Glencoe, 111.: Free Press. → First published as De la division du travail social.
Ehrlich, Eugen (1913) 1936 Fundamental Principles of the Sociology of Law. Translated by Walter L. Moll with an introduction by Roscoe Pound. Cambridge, Mass.: Harvard Univ. Press. → First published as Grundlegung der Soziologie des Rechts.
Evan, William M. (editor) 1962 Law and Sociology:Exploratory Essays. New York: Free Press. → See especially “Public and Private Legal Systems,” pages 165–184. Argues that the modern democratic state contains a plurality of legal orders.
Hoebel, E. Adamson 1954 The Law of Primitive Man:A Study in Comparative Legal Dynamics. Cambridge, Mass.: Harvard Univ. Press.
Maine, Henry J. S. (1861) 1960 Ancient Law: Its Connection With the Early History of Society, and Its Relations to Modern Ideas. Rev. ed. New York: Dutton; London and Toronto: Dent. → A paperback edition was published in 1963 by Beacon.
Marx, Karl; and ENGELS, FRIEDRICH (1848-1898) 1962 Selected Works. Volume 2. Moscow: Foreign Languages Publishing House.
Montesquieu (1748) 1962 The Spirit of the Laws. 2 vols. New York: Hafner. → First published as De I’esprit des lois.
Parsons, Talcott 1962 The Law and Social Control. Pages 56–72 in William M. Evan (editor),Law and Sociology: Exploratory Essays. New York: Free Press.
Ross, Edward A. 1901 Social Control: A Survey of the Foundations of Order. New York and London: Macmillan.
Schwartz, Richard D.; and MILLER, JAMES C. 1964 Legal Evolution and Societal Complexity.American Journal of Sociology 70:159–169.
Stone, Julius (1946) 1950 The Province and Function of Law: Law as Logic, Justice, and Social Control; a Study in Jurisprudence. Sydney: Associated General Publications; Cambridge, Mass.: Harvard Univ. Press. SUMNER, WILLIAM G. (1906) 1959 Folkways: A Study of the Sociological Importance of Usages, Manners, Customs, Mores, and Morals. New York: Dover. → A paperback edition was published in 1960 by the New American Library.
Torgersen, Ulf 1963 The Role of the Supreme Court in the Norwegian Political System. Pages 221–244 in Glendon A. Schubert (editor),Judicial Decision-making. New York: Free Press.
Weber, Max (1922) 1954 Max Weber on Law in Economy and Society. Cambridge, Mass.: Harvard Univ. Press. → First published as Chapter 7 of Max Weber’s Wirtschaft und Gesellschaft, published posthumously; Weber died in 1920. His earliest contributions to the sociology of law date from the 1890s, and the topic was rarely absent from his subsequent writings.
Wigmore, John H. (1928) 1936 A Panorama of the World’s Legal Systems. 3 vols. Washington: Washington Law Book. → A historical survey of 16 legal systems.
The legal profession encompasses all those who in view of their special competence in matters of law assume a distinctive responsibility in the administration of a legal order. The nature and extent of this responsibility may vary, and its locus may be found in one or in several social roles: judges, advocates, counselors, draftsmen, teachers, scholars. Because of special issues connected with it, the topic of the judiciary is treated more extensively under other headings [see Judicial PROCESS].
The legal profession attracts the interest of both students of the professions and students of law and government. Political scientists, legal scholars, historians, and political sociologists are mainly concerned with the role of lawyers in politics and in the administration of justice. Recent sociological writings approach the bar from the perspective of the study of professions, focusing on such problems as professional independence, ethics, careers, recruitment, and relations with clients. The sociology of law draws on all these approaches.
A">The profession and the law
Whatever approach one takes to the study of the legal profession, it cannot be fully understood unless it is seen in the light of the special functions it performs for law and legal institutions. Indeed, the development and character of a legal profession are closely related to the growth and orientations of the legal order which it serves and within which it operates.
Where law is simply an expedient for the settlement of disputes or the accommodation of conflicting interests, the work of the lawyer involves little more than mastery of some techniques of social adjustment. The legal profession develops most fully when law is viewed as an embodiment of values. Society then requires specialized group energies for the protection of its legal heritage and may find them in that occupation whose interests are identified with the preservation of legal skills and values. In this process, the legal craftsmen are transformed into a legal elite and assume the critical mission of maintaining the legal order and determining its subsequent development. Although values are at stake, a legal elite may not be necessarily called for when, as in ancient Greece or in imperial China, the values of law are not seen as distinct from the morality of the polity. In Athens the legal tasks of counsel and judge were performed by experienced citizens in the absence of any specialized legal profession. But the more the distinctiveness of law is emphasized and the more society aspires to legality, the greater is the need for an autonomous profession. The profession will require more or less independence and authority, depending upon the relative strength of community commitment to legal values.
While its role is partly fashioned in response to social needs, the legal profession carries much autonomous power over the orientations of the legal and social order. It may shape many features of a legal tradition. The growth of Roman law can thus be traced to the way in which pontifices and, later, praetors declared the law in private cases: by developing and extending formulas to be used as bases for actions at law, they created a system that allowed a continuing and highly pragmatic elaboration of legal ideas. The legal profession may also succeed in imprinting the value of law upon the community, as American arbitrators have done in the relations between labor and industry. It may even give a color of legality to moral norms and religious doctrines as did the rabbis in the Talmudic period and, in a different way, the canonists in the Roman Catholic church. Similarly, the inner weaknesses of the profession may breed corresponding weaknesses in the quality and authority of the legal order. This occurs when the profession becomes captured by the special interests it serves or when it so insulates itself as to weaken its participation in and responsibility for the solution of social problems. How competent the profession is to perform its role and what institutional means secure this capability are critical issues in the assessment of the legal profession.
Thus, the more developed a legal order, the more demands and responsibilities are placed upon its legal profession. The lawyer is called to bring a set of distinctive skills to his task. His special competence may be defined as an expertise in the assessment of authoritativeness; this follows from the special character of law as an authoritative order. Whatever kind of activity he may be involved in, the lawyer’s distinctive contribution lies in his ability to formulate or criticize the reasons upon which the authority of claims, decisions, policies, or actions rests. This ability is not confined to the evaluation of lawfulness; it includes a capacity to unravel issues, to scrutinize the rationale of policies, and to explore the firmness and test the relevance of evidence and inferences. The true lawyer is a generalist: he conveys this quality in his very posture of self-confidence and in the forthrightness of his style (Riesman 1954). To what extent such skills can be developed, of course, always remains problematic. This will vary partly with the richness of the resources a legal tradition makes available in its techniques of reasoning and criticism and partly with the capacity of the profession itself to instill this competence in some, if only a few, of its members. But some expertise of that nature is essential if the lawyer is to perform his task: that is, to add to social and legal institutions this strain toward the rational and the justified, which is the source of growth and strength of the legal order (Radish 1961).
Typical legal roles
The legal profession is historically associated with the performance of some typical roles involving particular applications of this general expertise.
The adjudicator is responsible for making authoritative decisions on issues of right and responsibility in the light of legal principles. As the normative dimensions of adjudication rather than the mere settlement of disputes become more salient, there tends to be more pressure to reserve access to, and control of, this role to the legal profession.
The advocate, as a legal representative, carries out the task of pressing for the official recognition of claims of right. This role is closely tied to the adjudicative process, especially when the latter rests upon the adversary presentation of claims, as in the Anglo–American tradition. The significance of advocacy may however extend beyond the sphere of adjudication, especially when the law assumes a positive role in the fulfillment of human aspirations. The advocate may then acquire more direct functions in the formation of law; as a result new forms of advocacy will tend to develop in new institutional settings. The role of advocate is marked by conflict between the lawyer’s responsibilities as an officer of the law and his commitment to the interests of his client. This is a source of strains not only for the lawyer, who may cope with them in a variety of ways, but also for the legal system as a whole. Different systems vary in the way they balance these conflicting duties, as well as in the degree to which they tolerate this ambivalence and allow for the free development of advocacy. Whereas partisanship has been a cornerstone of common-law procedure, Soviet Russian law has until recently tended to restrict the right to counsel, and to insist on the advocate’s primary loyalty to the courts and the public interest (Hazard 1960).
The counselor or draftsman has the special burden of assisting in the solution of social and human problems, while at the same time preserving the ideals of the legal order. The more emphasis that is placed on law as a creator of opportunities, the more this role is likely to develop. Thus, the notaries of northern Italy became pioneers in the fashioning of the law merchant, or commercial law, and the creation of negotiable instruments; their influence can be compared to that of modern lawyers in the growth of corporate enterprise. This development has been particularly significant in the United States, where business counseling became a primary focus of law practice to a much greater extent than in any European country.
The jurist or legal scholar is in charge of the systematic analysis and criticism of legal doctrine. One characteristic of law, as compared with other systems of norms, is that it contains its own builtin principles of criticism; the extension and refinement of these principles is a major task of the jurist. He may also share with the practitioners the role of training future lawyers. Jurists provide the profession with an instrument of self-scrutiny. The authority of their opinions varies, being generally higher in continental European than in Anglo–American law. One of the most important sources of law in imperial Rome lay in the responsa prudentium, that is, opinions in which famous scholars answered difficult questions of law. Under Hellenic influence, these jurists founded a tradition of formal legal analysis and teaching, which contributed to the progressive systematization and codification of Roman law; the Valentinian Law of Citations in A.D. 426 conferred legal authority on their writings. The revival and reception of Roman law in the Middle Ages was also the work of a school of jurists, the glossators of northern Italy, later followed by the scholastic postglossators in France and Italy. The German school of usus modernus pandectarum continued this tradition and, until the end of the nineteenth century, adapted the Roman doctrines to provide Germany with a workable common law; much of this work was incorporated in the German civil code of 1900.
Jurisprudence also attempts to clarify the ideals and perspectives of the legal order, a function that may be more effectively performed when jurists are not too closely bound to the practicing profession. There is, however, no clear evidence on this point, although the case of American law schools may be suggestive. Because of weak ties to universities and a tendency to recruit teachers from the ranks of practitioners, American law schools have generally been oriented to the practical interests of the profession, with little concern for jurisprudence and broader issues pertaining to the quality and needs of the legal order.
Lawyers have also been called to assume many other roles, such as mediators, managers in private business, politicians, and public administrators. How extensively they participate in such roles, especially in government, may both affect and reflect the authority of the law. Of special importance is the character of their participation. Their only contribution may lie in the ability to accommodate interests and manipulate social structures, a kind of activity in which they would not significantly differ from any trained politician (Eulau & Sprague 1964). Or they may bring to public life some of their own distinctive commitments and competence and help evolve, in both private and public government, an orientation to orderly procedure and the ideals of legality.
Structure of the profession
To analyze the structure of the legal profession is to ask how the social organization of the profession affects the role it performs in the legal order. The focus here is on internal and external sources of weakness or strength.
By controlling access to the profession and the training of future lawyers, legal education has an important bearing on the character of the profession and the orientations of the law. Whether the law becomes the property of a privileged class or of the whole polity depends to some extent upon criteria of access to the profession. When admission is limited to a narrow segment of society, the services of the profession may be oriented primarily to this clan. The more the legal career is viewed as an avenue to political power and social status, the more efforts will be made to keep access open, especially where there is strong antipathy toward the establishment of governmental elites. This has been evident in the United States (Hurst 1950). Although wide accessibility may make the law responsive to a larger range of interests, it may also create problems for the profession in its endeavor to preserve standards of quality. American attempts to raise educational standards of admission to the bar have met only limited success: the shift from apprenticeship to academic training has been accompanied by the development of a highly stratified system of education, with only relatively few high-standard university law schools at the top. The bottom consists of a large number of low quality, part-time schools that have weak or no university ties and seek merely to prepare the student for the bar examination.
Methods of legal training affect the skills and perspectives lawyers bring to their practice and thereby shape many features of the law. Max Weber has noted the relation between apprenticeship and the pragmatic responsiveness of the common law, as contrasted with the more intellectual and formalistic treatment of the law arising from university education in Europe (1922). Orientations to law are thus created, which confer on the legal order more or less rigidity or flexibility. Some can better preserve the “open texture” of the law, allowing law to incorporate social change while retaining its continuity; the Anglo–American system has been remarkable in this respect. Other orientations are apt to freeze the structure of legal rules and to paralyze processes of legal change; the academism of legal education in Europe—a tradition that dates back to the glossators—tends to promote this rigidity. Social reforms are then more likely to be sought by means outside the law, thus arousing critical problems for the stability of both the legal and the political order. This tendency can be observed in some civillaw countries, especially in South America.
In a more direct way, legal education may become a source of law. In the very act of ordering legal materials for pedagogical purposes, law is divided into branches, and these are organized around governing concepts. The institutes of Roman law were originally purely pedagogical instruments; however, by systematizing the principles of Roman law, they started a movement toward codification and became an authoritative source of the Corpus juris civilis. In the process of being taught, law is thus given a structure which reflects the changing emphases of positive law and the needs of the practitioners. But this structure also provides ideas and perspectives which may affect the capacity of the law to cope with social change. Thus, the disappearance of the law of persons as a separate branch of legal study tends to impoverish the resources of American law for recognizing new forms of status.
Even more significant for the legal order is the role of legal education in providing lawyers with distinctive modes of analysis and reasoning. The case method, as practiced in American law schools, may be peculiarly competent to impart these skills. It may also tend, however, to create a perspective in which law appears as an outcome of controversies rather than a way of implementing values. More importantly, by identifying the main locus of law in appellate decisions, it may promote a restricted conception of the legal. Attention is diverted from the variety of ways and settings in which law can emerge and be administered. Even in its empirical focus on decisions, the case method overstresses the role of the judiciary, neglecting legislation and administrative decision making. It may thus limit the capacities of legal education to prepare lawyers for a period such as the present, when the role of law is being extended beyond its traditional confines.
The integrity of the law depends in part upon its ability to respond to political demands while maintaining its commitment to reason and impartiality. A continuing problem for the practicing lawyer is to remain sensitive to social needs and interests without becoming their captive and to preserve his autonomy without withdrawing himself from practical concerns.
Captivity may, of course, take a crude form, as when a political regime seizes control over the profession in order to neutralize a potential source of criticism (Kirchheimer 1961). It can, however, develop in more subtle forms where the profession is otherwise left free to serve. The lawyer can become the captive of his clients’ interests: an insecure practice, for example, makes it harder for him to resist pressures from clients for fear of losing them to competitors. This condition arises when the demand for legal services remains weak and intermittent, as it is among the lower classes, or when there is intense competition from other lawyers or from such groups as realtors and accountants, who encroach upon areas of practice requiring only low level and standardized skills (Carlin 1962). Captivity can also result from too intimate involvement in the affairs of particular clients. Lawyers may thus tie themselves to a small number of institutional clients who demand extensive and continuing services, or as “house counsel” (members of a legal department) they may become too closely identified with or too submissive toward the enterprise or agency which employs them.
Professional integrity may also be undermined in the lawyer’s dealings with courts and government agencies. The lower the standards of these institutions or the more open they are to outside political influences, as lower courts often are, the more they create opportunities and pressures which may attenuate norms of professional conduct. Continual practice before an agency may also lead the lawyer to share the perspectives of its administrators.
A common consequence of captivity is to deprive the lawyer of his special identity: he is transformed into a manipulator of social and economic structures who is no longer committed to the use of distinctively legal methods or resources. In this process, he tends to become indistinguishable from the politician or the business operator. Law is then made to appear as simply an expedient for the promotion of special interests, and the distinction between law and politics is lost.
The lawyer can resist pressures by avoiding involvement or insecurity, but such avoidance entails its own difficulties. A too rigid insistence upon independence and distinctiveness may divorce the lawyer from his clients’ problems and needs, thus weakening the contribution law might make to their solution. The lawyer may then find himself confined to the passive role of providing technical help in the event of legal trouble. Under such conditions, law tends to evolve into legalism. A special view of law is conveyed which stresses the formalism of the legal order and the obstacles it creates to effective problem solving. Law may thus be emptied of its moral and political significance and reduced to its purely technical and positivistic aspects. Paradoxically, in seeking to protect his autonomy the lawyer may so insulate himself as to weaken both his own authority and the authority of the law, perhaps eventually becoming a docile servant of corporate or political power. The history of the legal profession in Nazi Germany illustrates this process.
Organization of the bar
The profession has evolved a number of structural arrangements which can be more or less successful in securing a viable autonomy. Apart from its effectiveness in this regard, the social organization of the bar may also influence patterns of development in the law.
One organizational device is to create within the profession an elite specially charged with the protection of legal ideals. While this segment insulates itself from outside pressures, others in the profession are left free to respond to and accommodate the variety of demands that are made on the legal order. The British system has achieved this differentiation by developing a small and specialized class of barristers, who enjoy a monopoly of practice in the higher courts and deal with clients only through solicitors. The latter do most of the client counseling and take care of cases in the lower courts and government agencies (Jackson 1940). In the United States, the large law firms have developed a very high level of technical proficiency in legal work, have restricted their practice to the most stable and secure clientele, and have limited their contacts to the top levels of government and the judiciary (Smigel 1964). Special training institutions, such as the Inns of Court in Britain and the American Ivy League law schools, help to strengthen these elites, while sharing in their trusteeship for the legal order.
The services of the elite bar tend to benefit those most competent to pursue their interests through use of the legal process. Thus, a critical issue is whether the elite can preserve its loyalty to legal institutions and its responsibility for the law as a whole, for it runs the risk of becoming so identified with the aims of a special clientele as to restrict its concerns to those areas of the law that best serve these aims. This encourages a highly selective development of the law and impairs recognition of legal demands arising from other segments of society. Large American law firms have thus been strongly criticized for their too exclusive services to corporate interests and their loss of concern for general legal values (Berle 1933). Moreover, in the United States the large metropolitan bar is highly stratified, with little mobility or communication between the upper and lower strata (Carlin 1966). The more the elite is cut off from the lower levels of the profession and of government, the more difficult it becomes to incorporate in the legal order the demands that are brought to these levels.
Formal associations. The weaker the sense of common purpose is within the bar and the more threatening the conditions under which it operates, the more pressing is the need for instruments of self-scrutiny and control. The practicing profession has traditionally been organized into guildlike associations, such as the Inns of Court in Britain and the Ordre des Avocats in France, which have often been quite powerful in regulating the practice of law. In the United States, the organization of the bar used to consist exclusively of small local and voluntary associations with little cohesion and authority. It still remains today highly fragmented, and primarily concerned, even in the exercise of disciplinary control, with the protection of the profession against public intervention and lay encroachments. A movement of reform, starting in the 1870s, led to the establishment of state bar associations and later to the integration of some of these. In states which have an “integrated bar,” membership is compulsory for all practitioners in the state, and the association can thus enjoy greater security and larger resources. The American Bar Association was created in 1878 and progressively developed into a federation of state and local groups. It has assumed a prominent role in the bar as a whole, elaborating standards of admission and canons of ethics and recommending reforms in the law and the administration of justice. In legal reform it collaborates with two specialized organizations of the profession, the American Judicature Society and the American Law Institute. The latter under-took to codify American common law in a “Restatement of the Law.” This work is still in progress. Contributions of the Institute include the drafting of model acts and codes in various branches of the law.
Types of practice
The practice of law may take a variety of forms, some of which have already been mentioned. Lawyers may work on their own or associate in firms of various size. They may serve mainly discrete individuals or organizations and businesses; the role of family lawyers, such as attorneys in the field of probate and estate, tends to decline as the family loses its economic functions.
Not all areas of legal practice allow the same quality of work. For instance, workmen’s compensation and, frequently, personal injury call mainly for mass production and standardized legal techniques. In other fields, such as criminal law and domestic relations, “marriage counseling” and political manipulation are often more salient than legal craftsmanship (O’Gorman 1963). The lawyer is then likely to feel frustrated and threatened in his professional identity. The character of the market for services may also affect professional integrity: lawyers can more easily preserve their dignity when they can count on a secure and regular clientele. Others, however, especially those with low-status clients, have to keep continually searching for business, establishing connections, and resorting to such expedients as “ambulance chasing,” through which potential clients are located and advantage is taken of whatever claims and speculations can be aroused. In this very process they become deprofessionalized (Carlin 1962).
A new type of practice has begun to develop as organized groups, such as labor unions and trade associations, assume the function of providing to their members the services of their retained counsel. The special contribution of these groups lies in their ability to aggregate common interests and to articulate legal demands. Resources can then be mobilized to press these claims in a systematic way and thereby promote legal change.
The practice of law has become more specialized: lawyers specialize according to the class of clients they serve, the agencies with which they deal, or the branch of the law they handle. In the United States, this trend has been facilitated by the expansion of law firms (Smigel 1964). Specialization is particularly significant for the growth of legal doctrine in undeveloped areas of the law and where special government institutions must be made accountable and sensitive to social demands. Specialized lawyers have thus played an important role in the development of administrative law and labor law and in the extension of constitutional rights in the United States.
The explosion of advocacy
Modern social transformations tend to place new demands on the legal order and the legal profession. Government—public and private—is asked to perform tasks and satisfy needs that were formerly taken care of in more informal settings. Thus, in contrast to a rather passive role in the past, law and legal institutions are being summoned to participate more positively in the task of fulfilling human aspirations and accomplishing social purposes.
The effectiveness of law in this new role depends upon considerable expansion of social resources for legal criticism. Modern times may thus witness what has been termed an “explosion of advocacy,” with corresponding demands for critical changes in the services of the legal profession. The lawyer is called upon to relinquish his passive stance and assume an active role in the transformation of privileges into rights and in the development of rationality and competence in government institutions (Cahn & Cahn 1964).
This enlarged responsibility will require greater initiative on the part of the profession in scrutinizing the variety of social settings where decisions are made affecting established or incipient rights. The traditional role of law schools and professional associations will need re-evaluation in this respect. More positive responsibilities may fall upon legal departments, in view of their growing role in public and private organizations. Special agencies, similar to the Scandinavian office of ombudsman, may also be designed to carry out this task of legal criticism.
Wherever government relies upon self-help for the assertion of claims and interests, the viability of the system will ultimately depend upon the legal competence of the citizenry, that is, its capacity to make effective use of the legal machinery. To promote this competence is one of the major tasks of the legal profession. One requirement is that the provision of legal services be extended. Pressures on the profession to broaden its availability have been heightened by social demands for equality and political enfranchisement. It is unlikely, however, that the enlarged need for legal services can be fully met with existing institutions, such as legal aid and public defender offices. Serious limitations of available organized services can be seen in their dependence upon traditionally restricted sources of support, their routine treatment of cases, and their view of legal assistance as a form of public welfare (“The Availability of Counsel. . .”1965).
As legal institutions become increasingly used and crowded, a new burden falls on the lawyer. The working of both law offices and tribunals comes to depend upon establishing standardized methods for the mass processing of cases. Thus the operation of rules and procedures tends to become a routine which escapes criticism and blocks adaptation to unusual cases and new experiences. Special efforts are then required of the lawyer in continually subjecting procedures to re-evaluation and in opening them to challenge and change.
However, more than a simple extension of legal services may be needed. The traditional model of individual representation and counseling may prove inadequate to the task of developing legal competence. New types of legal services must be evolved. Thus, the older emphasis on serving individual clients may have to be supplemented and in part replaced by organizational advocacy: here legal services are provided to an organization representing the common interests of a group or they are made available to members of the group through intervention by the organization. This transformation has already taken place in American industry, where organized labor has secured the services of specialized labor lawyers to support the legal interests of its constituents. Group services will have to expand if legal assistance is to be made effectively available (“The Availablity of Counsel . . .” 1965). Experience has shown that persons who are insecure and lack social support for the assertion of their claims need a representative organization to lend them its strength and resources. Neighborhood law firms and defense organizations such as the National Association for the Advancement of Colored People and the American Civil Liberties Union constitute a step in this direction. As these changes proceed, new specializations will develop within the legal profession, thus promoting the growth of new, still inchoate, fields of law.
Together with the growth of group representation, there is a drift away from the passive acceptance of individual cases as they come. This traditional approach is consistent with an adversary system in which the presentation of legal issues depends upon the development of specific controversies between defined interests. This system tends to divert attention from structural sources of injustice. As individual demands become organized, strategic advocacy develops: the lawyer can select and possibly generate issues for the purpose of challenging practices and pressing recognition of new rights (Cahn & Cahn 1964). In this process, adjudication becomes less dependent upon disputes and can address itself more directly to issues of policy and the broader interests at stake. Adversariness is then used as a way of clarifying policy problems; at the same time, the role of the amicus curiae develops, and there is greater reliance upon forms of declaratory relief, where questions of law are clarified without the necessity of deciding on the outcome of a particular dispute. More importantly, the growth of the law tends to be less contingent upon the more or less random occurrence of cases and to proceed along lines of more systematic planning.
Philippe Nonet AND
Jerome E. Carlin
[Directly related are the entries Judicial PROCESS; Judiciary; Legal SYSTEMS. Other relevant material may he found in Canon LAW; Jurisprudence; Legal REASONING; Legislation.]
The Availability of Counsel and Group Legal Services: A Symposium. 1965 U.C.L.A. Law Review 12:279–463. → Contains a foreword and eight articles.
Berle, A. A. JR. 1933 Modern Legal Profession. Volume 9, pages 340–346 in Encyclopaedia of the Social Sciences. New York: Macmillan.
Blaustein, Albert P.; and Porter, Charles O. 1954 The American Lawyer: A Summary of the Survey of the Legal Profession. Univ. of Chicago Press. → Valuable as a bibliographical source.
Cahn, Edgar S.; and Cahn, Jean C. 1964 The War on Poverty: A Civilian Perspective. Yale Law Journal 73:1317–1352.
Carlin, Jerome E. 1962 Lawyers on Their Own: A Study of Individual Practitioners in Chicago. New Brunswick, N.J.: Rutgers Univ. Press.
Carlin, Jerome E. 1966 Lawyers’ Ethics: A Survey of the New York City Bar. New York: Russell Sage Foundation.
Eulau, Heinz; and Sprague, John D. 1964 Lawyers in Politics: A Study in Professional Convergence. Indianapolis, Ind.: Bobbs-Merrill.
Hazard, John N. 1960 Settling Disputes in Soviet Society: The Formative Years of Legal Institutions. New York: Columbia Univ. Press.
Hurst, James W. 1950 The Growth of American Law: The Law Makers. Boston: Little.
Jackson, Richard M. (1940) 1964 The Machinery of Justice in England. 4th ed. Cambridge Univ. Press.
Kadish, Sanford H. 1961 The Advocate and the Expert—Counsel in the Peno–Correctional Process. Minnesota Law Review 45:803–841.
Kirchheimer, Otto 1961 Political Justice: The Use of Legal Procedure for Political Ends. Princeton Univ. Press.
Lasswell, Harold D.; and Mcdougal, Myres S. 1943 Legal Education and Public Policy: Professional Training in the Public Interest. Yale Law Journal 52:203–295.
O’Gorman, Hubert J. 1963 Lawyers and Matrimonial Cases: A Study of Informal Pressures in Private Professional Practice. New York: Free Press.
Plucknett, Theodore F. T. (1929) 1956 A Concise History of the Common Law. 5th ed. London: Butter-worth. → See especially pages 79–289, “The Courts and Profession.”
Pound, Roscoe 1953 The Lawyer From Antiquity to Modern Times: With Particular Reference to the Development of Bar Associations in the United States. St. Paul, Minn.: West.
Riesman, David 1954 Individualism Reconsidered, andOther Essays. Glencoe, I11.: Free Press. → See especially pages 440–466, “Toward an Anthropological Science of Law and the Legal Profession.”
Schacht, Joseph (1950) 1959 The Origins of Muhammadan Jurisprudence. Oxford: Clarendon.
Smigel, Erwin O. 1964 The Wall Street Lawyer: Professional Organization Man. New York: Free Press.
Weber, Max (1922) 1954 Max Weber on Law in Economy and Society. Edited, with an introduction and annotations by Max Rheinstein. Cambridge, Mass.: Harvard Univ. Press. → First published as Chapter 7 of Max Weber’s Wirtschaft und Gesellschaft.
More scholarship has probably gone into defining and explaining the concept of “law” than into any other concept still in central use in the social sciences. Efforts to delimit the subject matter of law—like efforts to define it—usually fall into one of several traps that are more easily seen than avoided. The most naive beg the question and use “law” in what they believe to be its commonsense, dictionary definition—apparently without looking into a dictionary to discover that the word “law” has six entries in Webster’s second edition, of which the first alone has 13 separate meanings, followed by five columns of the word used in combinations. German and French have even more complex ambiguities, since their comparable words (Recht, droit) include some dimensions for which English uses other words.
Sophisticated scholars, on the other hand, have been driven either to write treatises on the art and pitfalls of definition (Cohen & Hart 1955) or, like Stone (1964), to realize that in relation to a noetic unity like law, which is not represented by anything except man’s ideas about it, definition can mean no more than giving the reader a set of mnemonics to remind him what has been talked about. It was Kant who said, “The lawyers are still seeking a definition of their concept of law.” A century and a half later Stone stated that “‘law’ is necessarily an abstract term, and the definer is free to choose a level of abstraction; but by the same token, in these as in other choices, the choice must be such as to make sense and be significant in terms of the experience and present interest of those who are addressed “(1964, p. 177).
Definitions of “law”
Even if we agree with Hart (1954) that the searches for definition and the concomitant search for security that they represent became serious only in the time of Austin (and Kant’s remark would seem to belie this), it is apparent that schools of jurisprudence have risen, battled, and fallen on bastions erected on one meaning or another. Austin has permanently affected British jurisprudence by emphasizing the command aspect of a law and pointing out that the law is a command of the “sovereign” (itself an ambiguous concept). Since then lawyers have for generations and without signal success been arguing whether Austin’s stipulations applied only to developed systems of “municipal” law and whether he himself really gave the point of command such primacy.
The American “realists” clustered around Oliver Wendell Homes’s dictum that law is a prediction of what a court will enforce. Continental scholars tended to be more concerned with the moralistic “right” and “ought” aspects of the rules of law and have gone deeply into moral philosophy.
In the effort to define “law,” some modern scholars like Hart (1954) conclude that there are three “basic issues”: (1) How is law related to the maintenance of social order? (2) What is the relation between legal obligation and moral obligation?(3) What are rules and to what extent is law an affair of rules? Others (Stone 1966) describe several sets of attributes that are usually found associated with law. Accordingly, law is (1) a complex whole, (2) which always includes social norms that regulate human behavior. These norms are (3) social in character, and they form (4) a complex whole that is “orderly.” The order is(5) characteristically coercive and (6) institutionalized. Law has (7) a degree of effectiveness sufficient to maintain itself. Anthropological studies of law in the non-Western world have followed a similar course. To cite one of the most vivid and orderly presentations, Pospisil (1958) examined several attributes of the law—the attribute of authority, that of intention of universal application, that of obligatio (the right-obligation cluster), and that of sanction. In his view, the “legal “comprises a field in which custom, political decision, and the various attributes overlap, though each may be found extended outside that overlapping field, and there is no firm line, but rather a “zone of transition,” between that which is unquestion-ably legal and that which is not.
It was Kantorowicz (1958) who pointed out that there are many subjects, including some of a nonlegal nature, that employ a concept of law. He perceived that each needs a different definition of “law” if it is to achieve its purposes. He then proceeded to a more questionable point: it is for “general jurisprudence” to provide a back-ground to make these differing definitions sensible—in short, it is the task of jurisprudence to elicit meaning from this cacophony of attempted definitions. Kantorowicz’s method in jurisprudence is very like Pospisil’s in anthropology. Instead of trying to find points for definition of law, Kantorowicz examined some characteristics of law that are vital to one or more of the specific definitions. Law is thus characterized by having a body of rules that prescribe external conduct (it makes little immediate difference to the law how one feels about it—the law deals in deeds). These rules must be stated in such a way that the courts or other adjudging bodies can deal with them. Each of the rules contains a moralizing or “ought” element—and Kantorowicz fully recognized that this “ought” element is culturally determined and may change from society to society and from era to era. Normative rules of this sort must, obviously, also be distinguished from the real uniformities by which men (sometimes with and sometimes without the help of courts and lawyers) govern their daily round of activity. Law is one of the de-vices by means of which men can reconcile their actual activities and behavior with the ideal principles that they have come to accept, and can do it in a way that is not too painful or revolting to their sensibilities and in a way which allows ordered (which is to say predictable) social life to continue. No act is wholly bad if it is “within the law” no law is wholly good if it condones “immoral” action.
Custom is a body of more or less overt rules which express “ought” aspects of relationships between human beings and which are actually followed in practice much of the time. Law has an additional characteristic: it must be what Kantorowicz calls “justiciable/’ by which he means that the rules must be capable of reinterpretation, and be actually reinterpreted, by one of the legal institutions of society so that the conflicts within nonlegal institutions can be adjusted by an outside “authority.”
It is widely realized that many peoples of the world can state more or less precise “rules” which are, in fact, the ideals in accordance with which they think they ought to judge their conduct. In all societies there are allowable lapses from rules, and in most there are more or less precise rules (sometimes legal ones) for breaking rules.
In order to make the distinction between law and other rules, it has been necessary to introduce furtively the word “institution.” We must now make an honest term of it. A social institution can be defined as a group of people who are united (and hence organized) for some purpose; who have the material and technical means of achieving that purpose or at least of making rational attempts at it; who support a value system, ethics, and beliefs validating that purpose; and who repeat more or less predictable activities and events in the carrying out of the purpose (Malinowski 1945). With this rubric, all human activity can be viewed either as institutionalized or as random (and the degree of random behavior may be the most diagnostic feature of any society). It need hardly be added that “institutionalized” does not necessarily mean “approved” by the people who participate in the institutions.
With these ideas it is possible to distinguish legal institutions from nonlegal ones. A legal institution is one by means of which the people of a society settle disputes that arise between one another and counteract any gross and flagrant abuses of the rules of the other institutions of society. Every ongoing society has legal institutions in this sense, as well as a wide variety of nonlegal institutions.
It can be pointed out that some nonlegal institutions—the priestly, the psychiatric, and the like —serve the function of settling disputes. To make the distinction between legal and nonlegal, social scientists generally invoke the doctrine of coercion and use of force. Such a settlement is sensible because the legal institutions with which modern Western lawyers deal are usually associated with a political unit of which the state is one type. A political organization ipso facto supplies theorists with a “sovereign” of Austinian type and the “enforcement” predicated by Holmes and others. From this point of view, then, legal institutions must have two defining criteria: (1) they must settle the disputes that arise in other (nonlegal) institutions, and (2) they must be associated with (or even constitute) some sort of political organization. Obviously, for some purposes—particularly in the study of less-developed legal systems—the second criterion can and must be dropped; for most pur-poses of Western jurisprudence, just as obviously, it is probably necessary to retain it.
In carrying out the task of settling difficulties in the nonlegal institutions, legal institutions must have specific ways to (1) disengage the difficulties from the institutions of origin which they now threaten, (2) handle the difficulties within the framework of the legal institution, and (3) set the new solutions back within the processes of the nonlegal institutions from which they emerged. Indeed, the presence of such characteristics is a vivid index of the presence of a political organization.
There are, thus, at least two aspects of legal institutions that are not shared with other institutions of society. First, legal institutions alone must have some regularized way to interfere in the malfunctioning (and, perhaps, the functioning as well) of the nonlegal institutions in order to disengage the trouble case. Second, there must be two kinds of rules in the legal institutions—those which govern the activities of the legal institution itself (called “adjectival law” by Austin and “procedure” by most modern lawyers) and those which are substitutes for, or modifications or re-statements of, the rules of the nonlegal institution that has been invaded (called “substantive law”). The above are only the minimal aspects that are shared by all known legal institutions.
Seen in this light, the distinction between law and custom is fairly simple. Customs are rules (more or less strict and with greater or less support of moral, ethical, or even physical coercion) about the ways in which people must behave if social institutions are to perform their tasks and society is to endure. All institutions (including legal institutions) develop customs. Some customs in some societies are reinstitutionalized at another level: they are restated for the more precise purposes of legal institutions. When this happens, therefore, law may be regarded as a custom that has been restated in order to make it amenable to the activities of the legal institutions. In this sense one of the most characteristic attributes of legal institutions is that some of these “laws” are about the legal institutions themselves, although most are about the other institutions of society, such as the familial, economic, political, and ritual.
Malinowski, by his little book Crime and Custom in Savage Society (1926), has widely influenced lawyers with a faulty mode of distinguishing law from nonlaw. His idea was a good one; he claimed that law is “a body of binding obligations regarded as right by one party and acknowledged as the duty by the other, kept in force by the specific mechanism of reciprocity and publicity inherent in the structure of ... society.” His error was in equating what he had defined with the law. It is not law that is “kept in force by ... reciprocity and publicity” ( 1961, p. 58). It is custom as we have defined it here. Law is better thought of as “a body of binding obligations regarded as right by one party and acknowledged as the duty by the other”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. In short, reciprocity is the basis of custom; but the law rests on the basis of this double institutionalization.
One of the best ways to perceive the doubly institutionalized norms, or “laws,” is to examine the smaller components as they attach to persons (either human individuals or corporate groups) and so to work in terms of “rights” and their reciprocal “obligations.” In the framework of rights and duties, the relationships between law and custom, law and morals, law and anything else can be seen in a new light. Whether in the realm of kinship or contract, citizenship or property rights, the relationships between people can be reduced to a series of prescriptions with the obligations and the correlative rights which emanate from these prescriptions. In fact, thinking in terms of rights and obligations of persons (or role players) is a convenient and fruitful way of investi-gating much of the custom of many institutions. Legal rights are only those rights which attach to norms that have been doubly institutionalized; they provide a means for seeing the legal institutions from the standpoint of the persons engaged in them.
The phenomenon of double institutionalization of norms and therefore of legal rights has been recognized for a long time, but analysis of it has been only partially successful. Legal rights have their material origins in the customs of nonlegal institutions but must be overtly restated for the specific purpose of enabling the legal institutions to perform their tasks.
Many scholars, in comparative studies, have focused attention on the sanction for purposes of determining what is to be included in the “legal” field. Use of the term “sanction” has the advantage of allowing the scholar to beg the question of the Austinian sovereign. Sanction is generally understood to mean what the law itself says will or may happen to one found guilty of having transgressed a legal rule. The word is often used in common parlance to mean “the teeth in the law.” When it is used as a verb, its true ambivalence becomes apparent. “To sanction” something is in ordinary usage not to interfere with some-one’s doing it; yet jurists also use it to mean “visit an evil on doing it,” and social scientists have ex-tended the word “sanction” far beyond its technical meaning for modern law. Radcliffe-Brown (1934a) described positive and negative sanctions for behavior, embracing not only penalization of non-conformity but also rewarding of conformity—and all this without specifying precisely who confers rewards or inflicts punishments.
The problem of sanction would seem to be better summarized in terms of legal institutions which, in some situations, apply specific types of correction to adjudged breaches of law. That is, the “sanction” is the body of rules according to which legal institutions interpose themselves for the purpose of maintenance of a social system so that living in it can be comfortable and predictable.
Law and social science
It is apparent that we must examine two further factors. First, what sort of definitions of law may be needed by the social sciences? Second, and related to this, how can social scientists go about investigating the legal institutions and the legalization of rights in any specific culture or in any concatenation of cultures?
The kernel of the social scientist’s concept of law must be found, I believe, in the phenomenon of double institutionalization of rights: once within customary institutions, then again within the legal institutions. Therefore he is required absolutely to study both the legal institutions and the social institutions on which they feed—and only in this way can he ever make any progress with the thorny problem of the relationship between law and society.
The social scientist studying law is quite right when he considers the law a type of social superstructure to be judged by criteria or values of the social sciences. He is, however, quite wrong if he extends this position to mean that he need not consider what is known about the law on its own ground. The determining variables of the law may be considered as part of a social field; but equally so, the social field must be considered by jurisprudence. In short, what is required is a sort of stereoscopic vision, looking at data with the lens of jurisprudence in one eye and the lens of social science in the other.
Seen thus stereoscopically, a legal right (and, with it, a law) is the restatement, for the purpose of maintaining peaceful and just operation of the institutions of society, of some but never all of the recognized claims of persons within those institutions; the restatement must be made in such a way that these claims can be more or less assured by the total community or its representatives. Only by so viewing legal rights can the moral, religious, political, and economic implications of law be fully explored.
In fact, a primary problem of all legal studies may be the intersecting of the law and the other institutions of society. This relationship is no mere reflection of society in the law: it must be realized, rather, that the law is always out of phase with society, specifically because of the duality of the statement and restatement of rights. Indeed, the more highly developed the legal institutions, the greater the lack of phase, which not only results from the constant reorientation of the primary institutions but is magnified by the very dynamics of the legal institutions themselves (Stone 1964, chapter 1, sec. 1).
Thus, it is the very nature of law and its capacity to “do something about” the primary social institutions that create the lack of phase. Moreover, even if one could assume perfect legal institutionalization, change within the primary institutions would soon jar the system out of phase again. What is less obvious is that if there were ever to be perfect phase between law and society, then society could never repair itself, grow and change, flourish or wane. It is the fertile dilemma of law that it must always be out of step with society but that people must always (because they work better with fewer contradictions, if for no other reason) attempt to reduce the lack of phase. Custom must either grow to fit the law or it must actively reject it; law must either grow to fit the custom or it must ignore or suppress it. It is in these interstices that social growth and social decay take place.
Social catastrophe and social indignation and resultant changes in custom are sources of much new law. With technical and moral change new situations appear that must be “legalized.” This truth has particular and somewhat different applications to developed and to less highly developed legal systems. In developed municipal systems of law, in which means for institutionalizing behavior on a legal level are already traditionally concentrated in political decision-making groups such as legislatures, there is a tendency for the legal institution not to reflect custom so much as to shape it. As developed nations put more faith in their legislatures, nonlegal social institutions sometimes take a very long time to catch up with the law. On the other hand, in less-developed legal systems, it may be that little or no popular demand is made on the legal institutions, and therefore little real contact exists or can be made to exist between them and the primary institutions (Stone 1966, chapter 2, sec. 17). Law can become one of the major sources of innovation in society.
The social scientist’s first task, then, is the analysis of the legal institutions to be found and their interrelationships with the nonlegal institutions of society. There may be courts as in some parts of indigenous Africa or indigenous Europe; there may be self-help, oracles, moots, town meetings, contests, and certain types of feuds (although most feuds do not correct the difficulty and feed the corrected situation back into the nonlegal institutions of society). The social scientist can examine the particular types of customs that are legalized in any particular society. He can begin the process of comparing the customs of mating and child rearing with the laws of marriage; the customs of trading with the laws of contract; the customs of interpersonal relations with the law of tort; the customs of approved behavior with criminal law.
And what will he find? He will find that the practice of law is a force by itself, a force for preserving and molding society that both has its roots irrevocably in social institutions and must supersede any particular historicoethnographic phase of them.
The social scientist’s next task is the reporting and comparison of legal institutions in the terms of the people who participate in those institutions and the subsequent comparison of those terms with the terms in which other people live in analogous or similar institutions.
His third task is the exposition of what Hoebel (1954) has called the “postulates” of that people’s law: the assumptions held about the “natural” ways of the world, most often without even a possibility of overt statement, by the people who live by a custom and a law. These postulates lie behind the law as they lie behind every other aspect of that people’s activity. They are those “values,” or unquestioned premises, on which a people bases not merely its behavior (including law) but its moral evaluation of behavior (including ethics). The postulates behind a legal system are congruent with the postulates behind the accompanying economic or religious system. What may seem blatant discrepancies and contradictions and, indeed, hypocrisies (as between Sunday school and the market place) are in fact no more than inadequate analyses of the postulates. A postulate lying behind Anglo-American law is that the human body is inviolably private unless marriage or certain contracts have been entered into; a postulate behind Eskimo law is that life is hard and that kinship, amity, or love between individuals cannot be allowed to override the welfare of the society. The postulates underlying a people’s law also underlie the rest of its culture. Law cases provide one of the best mechanisms by which the ethnographer can capture these postulates and make them overt.
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"Law." International Encyclopedia of the Social Sciences. 1968. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045000691.html
The development of law and jurisprudential ideas since the 1970s represents a significant change from the conventional models that had earlier dominated the province of legal theory in the history of ideas. This entry focuses on two salient theoretical emphases that have continued to influence developments of conventional legal theory and postmodern paradigms of legal thought: the analytical tradition, and the jurisprudence inspired by the revolt against formalism, or legal realism.
Within the received tradition, the rules-based model (which regards law as a pure science), identified with Herbert Lionel Adolphus (H. L. A.) Hart (1907–1992) and the Oxford school of analytical positivism, was subjected to both strong internal critique and important development by such figures as Ronald Dworkin, a Yale law professor who later became professor of jurisprudence in Oxford. Dworkin's redevelopment of the analytical model focused centrally on the development of a powerful rights-based theory of law. The approach moved the consideration of conventional legal theory strongly in the direction of the moral foundations of political community. This created an awkward fit for analytical positivism, which traditionally strove to separate law from moral discourse, that is, to radically distinguish the law that is from the law that ought to be. Dworkin's work led him to stress the principle that the foundations of a rights-based approach to law are indeed rooted in the values of equal respect and dignity, the core moral precepts in a political community committed to taking rights seriously.
Responses to legal realism.
In the United States the dominant version of legal realism (an intellectual movement that advocates policy-oriented jurisprudence informed by developments in social and behavioral sciences, such as psychology and anthropology), which had reached its apex in American legal culture prior to World War II, also remained influential. The general criticism leveled at legal realism argued that an approach to adjudication that is result-selective and that only makes sense from an external observer's point of view is flawed. It compromises the conventional view of law and in particular undermines its special juridical character rooted in the ubiquity and special characteristics of rules governing social and legal relations. This criticism reflects the idea—implicit in pragmatic approaches to philosophy—that law, like all human relations, should be conceived in terms of process.
Three distinctive responses to legal realism developed in the United States. The first was an acceptance of a rules-rights–based approach to law from an internal point of view, with the corresponding conclusion that the foundations of any legal theory from an external point of view (an about-law point of view) was simply incompatible with a professional internal perspective of law based on rules. This critique gave analytical jurisprudence an important place not only in developments in the United States, but more broadly in the general development of legal theory.
The second response, associated primarily with the Harvard Law School, is known as the legal-process school. At Harvard, Henry M. Hart Jr. (1904–1969) and Albert M. Sacks (1920–1991) focused attention on the nature of adjudication from the point of view of a principle of institutional competence. Instead of asking the classical questions of analytical jurisprudence: "What is a valid law?" and "By what criteria might we objectively determine what a valid law is?," they asked a different question, namely, "What is a legal question?" They were particularly interested in the objective indices used to distinguish administrative, executive, legislative, or indeed more broadly, political questions from those distinctively legal. This approach provided more flexibility and focused, so to speak, on law as a process requiring a continuing definition and redefinition of legal/professional roles, distinguishing these roles from other roles in the broader processes of settling community disputes. A central feature was the principle that one could still use an objective standard to interpret either what the law is or what falls within the scope of judicial competence. In this sense, analytical jurisprudence and the legal-process school shared a deep commitment to the role of objectivity in law.
Doubtless, ideology could influence the nature of the indicators used to either broaden or narrow the scope of what an appropriate judicial role is or should be. It cannot, therefore, be said that the legal-process approach settled deep ideological differences about the role of law in governing human relations. Rather, it provided a framework that justified greater flexibility in managing the tasks of judicially settling disputes while maintaining fidelity to the importance of objectivity in law. Morton J. Horwitz summarizes the essential challenge to which the legal-process school responded as follows:
The legal process school sought to absorb and temper the insights of Legal Realism after the triumph of the New Deal. Its most important concession to Realism was in its recognition that doctrinal formalism was incapable of eliminating discretion in the law. The task was instead to harness and channel that discretion through institutional arrangements.
The third response, generally associated with the Yale Law School, is known as "Law Science and Policy." It was identified with the political scientist Harold D. Lasswell (1902–1978) and the international lawyer Myres S. McDougal (1906–1998). These scholars were deeply influenced by legal realism, but were dissatisfied with the implication that at the end of the day legal realism might lead to legal nihilism. Their initial collaboration, which came during World War II, resulted in the 1943 publication of "Legal Education and Public Policy: Professional Training in the Public Interest." In this article, they raise the broad question of what the purpose of professional training is and, indeed, how professional training relates to the public interest. In this view, the professions are not neutral, but rather have a great deal to do with the nature and quality of the system of public order a society promotes and defends. From this article, they developed a system of jurisprudential thought for a free society and developed a wide range of specific applications of their theory to international law. Their work in international law became identified with the so-called New Haven School of International Law.
Jurisprudence in this view had a radically different, but distinctively scientific orientation. Jurisprudence was to be a theory for inquiry about law. The theory had a deliberate focus on policy-and decision-making. Indeed, law would now be defined as a process of authoritative and controlling decision-making wherein members of the community seek to clarify and implement their common interests. The approach would be radically context-sensitive, it would be problem-oriented, goal-guided, multidisciplinary, and solution-oriented. Among the central elements of this jurisprudential emphasis was the meaning it gave to the task of problem definition. Law, in this view, is not about the scope of different rules created by current or past elites, or about how to interpret or reconcile contradictory rules created by the same legal sources. A problem is to be observed from the perspective of the subjectivities of individuals involved in social interaction in society itself. In short, human beings in society are making subjective demands for value allocations, and these demands often reproduce social conflict for which the community provides institutional mechanisms specialized with whatever degree of efficacy for responding to them. Thus, law is one of the specialized mechanisms in social organization that responds to the raw, subjective claims of individuals in the larger social process.
By focusing the lens of legal inquiry on individual subjectivities, that is to say perspectives, for example, of identity, demand, and expectation, the Law Science and Policy approach radically changed the starting point of the central ideas required for legal inquiry. This had large-scale impacts on the development of ideas within the framework of legal culture. Lasswell's work in the social sciences and his collaboration with McDougal also anticipated the later development of post-modernism in the social sciences and its particular application to law, influenced by such theorists as Michel Foucault (1926–1984), Jacques Derrida (b. 1930), Jacques Lacan (1901–1981), and Jürgen Habermas (b. 1929).
Since human subjectivities are the central raw materials from which human problems evolve, and if law is a response to these problems, then human subjectivities are a critical element in a realistic and comprehensive understanding of jurisprudence and law. When, for example, human beings make distinctively economic demands, we bring in the relevance of microeconomic theory. When we consider that the rules and doctrines of the past in virtually all legal cultures have been largely made by men, we see that we must account for women's perspectives in law, which leads to the development of feminist conceptions of jurisprudence. Critical conceptions of jurisprudence, such as critical legal studies and critical race theory, as well as Lat/Crit theory (a branch of critical race theory), such as it is, have entered the discourse about legal culture as a result of the breach in the edifice of legal objectivism identified with conventional legal theory, as well as the legal process perspective.
The Law Science and Policy approach is a theory about and not of law. The insistence on a theory about law was a cardinal tenet of legal realism and was central to unpacking confusions of vantage point generated by both participants (decision-makers and claimants) and observers who represent a degree of scientific detachment required for the scientific study of law. However, the most direct influence of the McDougal-Lasswell school was in the area of international law, which they styled the public order of the world community. It is, of course, not the case that all of international law reflects their basic tenets; however, their work has had substantial influence on how international law is conceived and on the salience and importance of many of its important doctrines.
McDougal, Lasswell, and W. Michael Reisman sought to apply jurisprudential insights and ideas directly to the study of international law. Apart from the relevance of context, the problem orientation, and the salience of multiple methods of inquiry about law, their approach stressed the importance of specific intellectual criteria for the study of jurisprudence in international law. These criteria included goal-thinking, trend-thinking, scientific-thinking, predictive-thinking, and alternative-thinking. The approach was also explicit in articulating the standards by which one could compare and evaluate all systems of legal thought. These criteria included the procedures used to maintain and establish a clear observational vantage point, the critical importance of focusing both comprehensively and specifically on the actual processes of policy and decision, the development and use of critical intellectual tasks, and the importance of the provisional postulation of fundamental public-order goals. These criteria could be applied in the study of a national system or the entire global system.
The central feature of the New Haven School of International Law was its insistence on universality and comprehensiveness. This approach coincided with the creation of new states out of the debris of colonial rule. The new states were not always new. They were often old and dependent. In order to stake a claim for statehood, doctrines had to be invented and supported by contemporaneous developments in international law and jurisprudence. Nationalist elites seeking freedom from colonial rule would stake a claim to self-determination and independence. This claim of course would be an attack on sovereignty, or at least the colonial version of it. American idealism in the form of Wilsonian internationalism succeeded after World War II in making German colonies a sacred trust of civilization while at the same time paying service to colonial hegemony. Thus, for example, German South West Africa, which was conquered by South Africa in 1917, was given to South Africa to administer as a special international mandate. The precedent created here was that colonial rule was not altogether to be insulated from international responsibility, in particular the sacred trust for the well-being of the inhabitants. After World War II, the dominant victorious allies, namely the United States and the Soviet Union, shared a common objective, supported for radically different reasons, that colonialism become obsolete. The United Nations was created, and a part of its growing mandate was to facilitate decolonization, self-determination, and independence.
The paradox of claims to resist colonial rule was that they were also claims to weaken the sovereignty idea in international law. If self-determination and independence were supported by international legal precepts, then international support for the integrity of sovereignty would be constrained by these competing claims. In short, sovereignty admits limitation, particularly limitations based on international obligations. Thus, the sovereignty idea began to evolve within the framework of a global constitutive process, as expressed in the theories of the New Haven School.
Problems of Sovereignty
The model for expanding the community of nation-states became the model of a sovereignty-dominated world order, which included the new Afro-Asian sovereigns. This model was largely Eurocentric, and its juridical roots are often identified with the Peace of Westphalia (1648). The claims about sovereignty now represented a paradox. Colonial sovereignty was to be seen as weaker and permeable: "soft sovereignty," as it were. However, the new sovereigns were based on political foundations that were both internally and externally vulnerable. The same elites who demanded a weak version of sovereignty to justify decolonization were now demanding something akin to an absolutist version for national survival. In short, they were frequently demanding a form of sovereignty identified with the international legal culture prior to World War II, a version largely unconstrained by respect for international obligations (hard or thick sovereignty).
The problems of weakening sovereigns coincided with the Cold War, and the hegemons could find surrogates to spear-head strategic interventions intended to weaken sovereigns ostensibly identified with one superpower or another. The normative status of sovereignty thus generated two powerful contradictory trends. The first trend was the high priority given to principles of sovereign equality and nonintervention. The second was the high priority given to the imperatives of international legal obligation and the competence to intervene when fundamental international values, such as peace, security, and humanitarian values, are compromised.
Thus, while the nation-state system was still expanding in the early 2000s—with approximately 192 sovereigns—sovereignty, in fact, was changing, as nations found that in giving up some sovereignty, they, in effect, strengthen their sovereignty. The expansion of NATO (North Atlantic Treaty Organization) is an illustration of this phenomenon; the development in the direction of the European Constitution is a further example; and the development of the African Union Constitution is a major doctrinal shift in the dynamic of sovereignty. This suggests that the political and juridical conceptions of sovereignty had the possibility of embracing theoretical reification and practical obsolescence, or becoming more refined, flexible, fluid, and relevant to the practicalities of governance.
The importance of understanding the context in which sovereigns are created, maintained, and possibly changed is a reflection of the insistence in legal theory that international sovereignty itself is the outcome of problems of power in the international system. What is apparent in the complex global network of institutions and participant actors is that there are many active participants in this process, such as international, continental, and regional organizations, and private-sector institutions of business, capital, and labor, as well as the vast organization and partial structure of nongovernmental operators and individuals who constitute national and global civil society. Therefore, it will be seen that the meaning of sovereignty itself derives not so much from state absolutism, but from the ways in which global society constructs and orders political identity and participation through sovereigns and other institutions of global salience.
The concept of sovereignty in the twenty-first century is, of course, tied to the concept of statehood. For a state to be recognized in international law, the state must meet certain practical and normative requirements. The first set of criteria relates to practical matters of power and control. The state must have control over territory, people, and institutions of governance, and must be competent to handle the international environment.
These matters are often collapsed into what is sometimes known as the declaratory theory of recognition. In order to become a member of the United Nations, a state must not only meet these criteria, but it must also meet certain normative standards. It must indicate a willingness to respect and honor the principles on which the United Nations is founded, including respect for peace and security, the rule of law, human rights, and more. In practice, governments have—from time to time—unilaterally indicated that certain states do not maintain standards of behavior consistent with the concept of international obligation. Thus, the United States has a list of states it regards as "terrorist," and has expanded this notion to include what it calls "rogue states." This indicates the beginning of a discourse that is more substantive with regard to the nature of the state itself and therefore the nature of sovereignty. Thus, the notion emerges of the abuse of sovereignty, and some writers have suggested that descriptive typologies of states could include such descriptions as failed states, anarchic states, genocidal states, homicidal states, rogue states, drug-influenced states, organized-crime-influenced states, kleptocratic states, terrorist states, authoritarian states, garrison or national security states, totalitarian states, and democratic rule of law states. Behind this discourse is the evolving notion of sovereignty itself. The older idea of sovereignty was identified with state absolutism. Among the elements of the new concept are the ideas and ideals of transparency, responsibility, and accountability in the analysis of both sovereignty and the state.
Sovereignty and the International Order
Sovereignty is ambiguously defined in the Charter of the United Nations. The first principle holds that the charter derives its legitimacy from the people of the earth-space community, but the constitutional scheme is weighted heavily in favor of the state-sovereignty paradigm, and limits, in some significant measure, the role of nongovernmental participation. Membership is open to sovereign states only. However, the basis of sovereignty is further clarified in the International Covenant on Civil and Political Rights. Individuals who constitute the "people" according to Article 16 "shall have the right to recognition everywhere as a person before the law." Article 18 specifies the people's right to freedom of thought; Article 19 stresses the people's "right to hold opinions without interference" and that the people "shall have the freedom of expression;" and Article 25 puts stress on the right to participate in the political welfare of the State, and the universal rights to vote and to participate in public service.
Thus, a significant change created by the UN Charter (along with subsequent practice) is that the conceptual basis of sovereignty is rooted not only in the monopoly of effective power, but also is predicated on authority and legitimacy, which are rooted in the expectations of people. The Declaration on the "Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union" made recognition and sovereign acceptance into the European community of states, subject to strong normative standards of international justice. The Guidelines include "respect for the provisions of the Charter of the UN and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights." The Summit of the Americas Declaration of Principles and Plan of Action articulated that democracy is the sole political system that guarantees respect for human rights and the rule of law. The 1990 Charter of Paris is another important expectation-creating instrument wherein sovereignty is predicated in the will of the people. Participating states affirmed their respect for human rights protections and fundamental freedoms as "essential safeguards against an over-mighty State." Democracy is "based on the will of the people" and is the "foundation of human respect" (pp. 193–194).
These examples illustrate that fundamental expectations of the nature of the state, including its sovereignty and governance, are being conditioned by what scholars call a right to democratic governance. The idea is that the formal historic requirements for the de facto recognition of a state have been enhanced by the normative constraints and demands of critical symbols of authority associated or identified with the human right to democratic governance. These demands include transparency, responsibility, accountability, and a commitment that the rule of law must be an intrinsic component of the nature, scope, and practical functions of sovereignty.
The newer meaning of sovereignty, which ties control to authority and to decision-making, also raises the question about how power and authority (i.e., governance) and decision-making are constituted in the global environment. For example, there are nation-states with constitutions in Africa. There is also the Constitution of the African Union, which is a form of constitutionalism with linkages to the constitutions of African member states. In Europe, nation-states are tied together in an economic and political union. Each nation-state has its own constitution, which is an overt indicator of how governance is constituted in the state, but the continental linkages of these states are to a larger political and economic community, and a draft constitution has been formulated that will obviously have linkages to the constitutional scheme within each state.
At a more inclusive level, all of these developments (national and continental) have evolved complex constitutional orders, which fall under the umbrella of the global constitution: the Charter of the United Nations. It will be very obvious that sovereignty now involves complex clusters of competence; some competences are shared, and smaller states (pooling their economic and political capital) might now have a larger say in the important decisions affecting them in the larger international environment than would be the case if they were acting as individual, isolated sovereigns. However, collected powers also require submission to the rules of the game. In short, in the early twentieth century, sovereignty can be described as a strengthened expression of its former self to some degree, but it is nevertheless much changed.
Sovereignty and the International Community
The conceptual positioning of national sovereignty within the framework of constituting authority and control permits us now to see the importance of the fact that there are many other participants in the global community, power, and constitutive process. As a technical matter, the question of whether an international organization, such as the United Nations, could have an international legal personality for the purpose of suing another state at the international level was decided by the World Court in a case called The Reparations Case. In this case, the World Court recognized that even though the United Nations was not a state, it was nonetheless an organization with an international legal personality and the right to sue or otherwise act in the international environment within the framework of its constituted competence.
It was the Nuremberg Tribunal that, in fact, opened the breach to the possibility that individuals might have some sovereignty in the international legal environment. The Nuremberg defendants were made directly accountable for war crimes and crimes against humanity under international law. But these defendants were also given the right to a fair trial under international law. They not only had duties under international law, but they could also exercise rights. Thus the narrow principle was established that individuals could have rights directly under international law; for some purposes, the individual could exercise these rights and, thus, rights and duties in international law were not confined to formal sovereign entities. Two important developments were born of these events. The first was the development of the human-rights provisions in the UN Charter through the Universal Declaration of Human Rights (UNDHR) and the extensive treaty-based regime for the protection of global and regional human rights. The preamble of the UNDHR states that member states recognize:
[T]he inherent dignity and … the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world … [and] disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people … [and that] it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
The second development was that in the aftermath of the Cold War, two ad hoc tribunals were established to try governmental officials and others for humanitarian and grave human-rights violations. The relative successes of the International Criminal Tribunal for the Former Yugoslavia (ICTY; 1993) and the International Criminal Tribunal for Rwanda (ICTR; 1994) provided a renewed impetus for the creation of an International Criminal Court (1998), which was indeed established. It is therefore critical that we see the development of international legal order since the 1970s as having finally been able to capitalize on the revolutionary breakthrough established at Nuremberg, where it was determined that individuals could not hide behind the veil of the state when they committed horrendous crimes against the peace and against humanity. For example, Article 7 of the Statute of the International Tribunal for the Former Yugoslavia and Article 6 of the Statute of the International Tribunal for Rwanda harmonize on the issue of individual criminal responsibility. Both state that:
- A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.
- The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
- The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
- The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.
With regard to Yugoslavia, the former president of that country was tried in The Hague in the early 2000s, and in Rwanda, high governmental officials had already been convicted. The question is, what do these events mean for the history of ideas?
These ideas establish the revolutionary principle that, both politically and juridically, the international community may directly hold governmental officials to account (in certain circumstances) and punish them accordingly. It also establishes that the conditions of governance, such as transparency, responsibility, and accountability, are integral features of the authority foundations of the state, and therefore the normative foundations of the state itself have changed on a continuum that moves from state absolutism to rooting governance and constitutionalism in the foundations of authority. What is even more critical as a complement to these developments is the growth not simply of human-rights law, but of human rights as an integral part of governance and constitutionalism and as a deeply rooted expectation in the political and legal culture of the global community. What is important in these developments is that the human-rights culture finds strong intellectual roots in the development of rights-based jurisprudence, as well as in the jurisprudence that roots law in fundamental policy. The rights-based approach seeks to ensure that individual rights are taken seriously. The policy-based approach insists that law be responsive to the claim, the identity, and the fundamental expectation of the individual participation in the international legal and political environment. Central to each concept is the idea of fundamental respect, which is seen as the heart of responsible constitutionalism and accountable sovereignty, and which is fundamental to all human rights.
Central problems emerged—at least in theory—with regard to how to justify the principle of respect as the cornerstone of the principle of human dignity. It is unclear whether the concept of human dignity can itself be objectively justified, and indeed modern philosophers have even suggested that at a fundamental level, human values about dignity may be incommensurable. Apparently conflicting values might have to be contextualized (or more deeply analyzed) in light of broader, more abstract formulations of value judgment. Thus, values including power, respect, rectitude, affection, enlightenment, well-being, skill, and wealth must be construed in terms of their enhancement of a more abstract human-dignity postulation. The policy-maker seeking the development of universal dignity must develop technical methods of decision-making, including sophisticated standards of construction and interpretation. Perhaps at this operational level, practical lawyers, social scientists, and real-world policy-makers must render decisions regarding how to integrate what are often regarded to be ostensibly conflicting values and norms in order to genuinely enhance the universal ethic of human dignity.
The South African Constitutional Court, for example, dealt in 1998 with a political party's claim regarding the "Truth and Reconciliation" statute that provided individuals who would otherwise have been prosecuted for human-rights violations with amnesty; essentially, this party contested the constitutionality of the statute and regarded it as a grave violation of international law. The Constitutional Court was confronted with a mechanism to explore truth and guide reconciliation that comprised a critical foundation for the internal peace and security of the entire Republic of South Africa, as well as of the effort to afford each South African political freedom. This statute, however, was in ostensible conflict with universally accepted tenets of international law, which do not accept excuses to mitigate the commission of grave crimes against humanity. It is possible to argue that the ethic of universal respect and human dignity demands universal compliance, but at what cost?
To ensure that respect, humanitarian law, and democratic entitlement are continuously adhered to and honored demands in-depth analysis and delicacy with regard to the process of decisional interventions. Rules of construction and interpretation painstakingly pieced together articulate, for example, that even if a peremptory norm of international law comprises an erga omnes obligation, it should be appraised and applied to enhance similar rights, which might also have to be accommodated. The currency underlying the ethic of human dignity is that it affords practical decision makers standards and goals that permit the transformation of regional, continental, and international law into a greater approximation of the standards and goals embodied in the United Nations Charter.
Principle of equality.
A central element in the development of the respect–human dignity precept is that it is rooted in the principle of equality. The principle of equality has a longstanding normative basis in the rule of law. For example, rule-governed behavior works on the principle of equality, namely, that rules cover like cases, regardless of identity, status, or personality. The more normative expression of the equality principle is established in the idea that all participants are formally equal before the law. Practical experience suggests, however, that even if formal equality is embraced it too often entrenches hierarchy, a lack of equity, and a depreciation of substantial justice. The specific way in which the international legal system approached the equality principle was a clear-cut recognition that the business of why World War II was fought was, in part, rooted in the racialism and Herrenvolkism of the Nazis. It would therefore be no surprise that both the preamble and the purposes of the UN Charter would codify not simply the importance of human rights, but would establish that racial and gender equality were crucial to a meaningful expression of the human-rights principle. Two of the most important covenants that reflect the specific development of the equality principle are the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the 1980 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
International human-rights law has also made criminal the practice of seeking to destroy groups of human beings in whole or in part based on race, nationality, ethnicity, and religion as labels of identity. Thus, the very first human-rights treaty following World War II made genocide a human-rights crime. The full development of the equality principle in international law has also permitted regional developments and has deeply influenced constitutional development on the principle of equality. The race relations convention, for example, goes further than the idea of formal equality in race relations. It specifically holds that affirmative action to achieve substantive equality is not unfair or prohibited discrimination. It cannot be said that the public order of the world community has achieved a community in which both substantive and formal equality are, in fact, realized. However, enormous developments have been stimulated by the development of the equality principle at the international level through the prism of universal human rights. This rise has served as a base of power for important levels of social activism within the framework of civil society to improve the condition of women discriminated against because of sex, as well as minorities discriminated against because of race.
One of the most important factors influencing international society in the early 2000s is the principle of globalism. The impact of globalism on sovereignty is fueled by the vast growth in the flow of goods, services, capital, and labor across state and national lines. This process has been dramatically accelerated by the communications revolution, and the impact on state sovereignty suggests that these global forces have seriously weakened the territorial boundaries of states. This intense flow of values across state and national lines also invited instant comparison and appraisal. As barriers to human interaction have been liberalized, what has been the social benefit and the social cost? There is no clear answer to this question. We know, for example, that without the communications revolution, it is possible that the global HIV/AIDS pandemic might have been containable. Thus, following the SARS (Severe Acute Respiratory Syndrome) outbreak of 2003, dramatic limitations were placed on communication to prevent the disease from spreading globally.
If nation-state barriers are not as salient, other barriers in the global age challenge the concept of global equity and fairness. While the world has generated more wealth than mankind has ever before achieved, the conditions of impoverishment throughout huge sections of the planet suggest a global economic apartheid rather than a global vista of improved and shared equity. It is widely recognized that a planet that is radically divided between the haves and the have-nots, in which there is an acceleration of short-term gains for the haves and an acceleration of poverty and deprivation for the have-nots, will ultimately result in the depreciation of all. In short, underdeveloped as the concept of global equity is, it may be the cornerstone upon which the improvement of the global condition of deprivation is built, not because this is necessarily a spiritually beneficial thing, but because the long-term prosperity—and possibly the survival—of the human race may depend on it. The history of ideas in the future will therefore be challenged by the ideological and jurisprudential relevance of the concept of equity and whether equity can be the critical lever that provides us with universal concepts of respect and freedom in a global commonwealth of dignity.
See also Authority ; Critical Race Theory ; International Order ; Justice ; Sovereignty ; State, The .
Charter of Paris for A New Europe, 21 November 1990. In International Legal Materials 30 (1991): 190 ff. Also available at www.ejil.org.
Convention on the Elimination of All Forms of Discrimination against Women, opened for signature Mar. 1, 1980, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980) (entered into force on Sept. 3, 1981). One hundred sixty-three states are party to the treaty. Also available at www.un.org.
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International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force on Jan. 4, 1969; and for the United States on Nov. 20, 1994). One hundred fifty-two states are party to the treaty. See U.S. Department of State, Treaties In Force 427 (1997). Also available at www.unhchr.ch.
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Winston P. Nagan
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Law and Order
Law and Order
The term law and order refers to a prominent theme of Richard Nixon’s (1913–1994) successful 1968 campaign for the American presidency. Law and order became a potent campaign symbol for Nixon, and related themes have sometimes surfaced in later Republican presidential campaigns—especially in 1972 and 1988. The term law and order is a political symbol capturing public anxieties about civil unrest, urban riots, black militant groups (which, some charged, fomented violence), and rising crime rates. Later events, such as the violence in the Boston area in response to court-ordered busing, widely publicized crime sprees like the Son of Sam murders in New York City, and continued rising crime rates, stoked fears of societal breakdown during the 1970s and gave law-and-order appeals additional resonance. These developments, sometimes connected with subtle racial appeals, contributed to the erosion of the Democratic Party’s dominant position in American politics after 1968.
After a period of relative domestic tranquility in the 1950s, the 1960s came as a rude shock to many Americans. Between 1961 and 1964, violent actions by southern whites bent on defending racial segregation became commonplace. Demonstrators at sit-ins and freedom riders, black and white, faced actual or threatened violence and mass arrests on fabricated charges. More violence erupted as federal officials attempted to carry out court-ordered desegregation. When black student James Meredith sought to enroll at (and integrate) the University of Mississippi, thousands of segregationists rioted, resulting in two deaths and forcing President John F. Kennedy (1917–1963) to mobilize thousands of troops to restore order.
As the civil rights movement continued, it was met with more violence. Police in Birmingham, Alabama, deployed dogs and high-pressure water cannons against unarmed civil rights demonstrators in 1963. The murders of National Association for the Advancement of Colored People (NAACP) leader Medgar Evers in Jackson, Mississippi, in 1963 and of three civil rights workers near Philadelphia, Mississippi, in 1964 fed fears of mounting social unrest. A 1963 bombing of a Birmingham black church killed four little girls, and Alabama state troopers attacked unarmed voting-rights marchers with dogs and electric cattle prods in March 1965. These cumulative shocks to the national consciousness were amplified by the 1963 assassination of President Kennedy in Dallas, Texas.
In response to white violence against civil rights activists, some black leaders adopted increasingly belligerent rhetoric. The rise of black radicalism was personified in militants like Stokely Carmichael (1941–1998) and H. Rap Brown. As political scientists Donald Kinder and Lynn Sanders noted, the new rhetoric frightened many whites. There was “less talk of nonviolence and more of self-defense; less yearning for integration and more for solidarity and black nationalism; ‘We Shall Overcome’ was replaced by Black Power and ‘burn, baby, burn’” (1996, p. 103). The image of neatly-dressed blacks pummeled by vicious white violence faded, replaced by images of blacks rampaging through city streets, torching cars and buildings and looting stores. The initial trigger for the changing imagery was the August 1965 Watts riot in Los Angeles. As Kinder and Sanders described the Watts riot:
The violence raged unchecked for three days, and three days longer in sporadic eruptions. Blacks looted stores, set fires, burned cars, and shot at policemen and firemen. Before the violence was halted, 14,000 National Guard troops, 1,000 police officers and 700 sheriff’s deputies were pressed into service.… In the end, 1,000 buildings were damaged, burned, looted or completely destroyed; almost 4,000 people were arrested; more than 1,000 were injured seriously enough to require medical treatment; and 34 were dead, all but three of them black. (Kinder and Sanders 1996, p. 103)
Watts was only the beginning, as 1966, 1967, and 1968 each brought more unrest. In 1967, 250 serious uprisings occurred, including the Detroit riots, which killed forty-three people. More disturbances erupted in multiple cities after the assassination of Martin Luther King Jr. in April 1968. As Kinder and Sanders observe:
For one long, hot summer after another, Americans watched what appeared to be the coming apart of their own country. On the front page of their morning newspapers and on their television screens in the evening appeared dramatic and frightening pictures of devastation and ruin: cities on fire, mobs of blacks looting stores and hurling rocks at police, tanks rumbling down the avenues of American cities.… Discussion of the “race problem” in America … centered on the threat that inner-city blacks posed to social order and public safety. (Kinder and Sanders 1996, p. 103)
In 1968 the Kerner Commission released a report on the civil disturbances, warning that the United States was “moving toward two societies, one black, one white—separate and unequal.” The urban violence and Kerner Commission report created an opening for Republicans to pounce on the law-and-order theme. Republican presidential candidate Richard Nixon blasted the report for “blaming everybody for the riots except the perpetrators of violence,” promising “retaliation against the perpetrators” that would be “swift and sure.” As noted by journalists Thomas Edsall and Mary Edsall, Nixon’s running mate, hard-line Maryland governor Spiro Agnew (1918–1996), summoned black leaders in Baltimore to a stormy meeting where he accused them of cowardice for refusing to renounce black militant leaders like Stokely Carmichael and H. Rap Brown. Speaking of the violence in Baltimore after the King assassination, Agnew charged: “The looting and rioting which has engulfed our city during the past several days did not occur by chance. It is no mere coincidence that a national disciple of violence, Mr. Stokely Carmichael, was observed meeting with local black power advocates and known criminals in Baltimore three days before the riots began” (quoted in Edsall and Edsall 1991, p. 85).
The 1968 Democratic national convention met in Chicago following the June 1968 assassination of Democratic presidential candidate Robert Kennedy. Chaotic scenes of police beating demonstrators in Chicago’s streets and parks echoed the tumult within the convention hall, as party delegates splintered over the Vietnam War (1957–1975). By 1965 almost all American homes had televisions, bringing searing images of one dramatic (and sometimes horrifying) event after another into the public consciousness. The racial subtext to much of the unrest of the 1960s is unmistakable. As Kinder and Sanders note:
The riots opened up a huge racial rift. Fear and revulsion against the violence were widespread among both white and black Americans, but whites were much more likely to condemn those who participated in the riots and more eager for the police and National Guard to retaliate against them. Where blacks saw the riots as expressions of legitimate grievances, whites were inclined to explain them as eruptions of black hatred and senseless criminality.… To many white Americans, then, the civil disorders of the 1960s amounted to an appalling collective mugging. (Kinder and Sanders 1996, p. 104).
Liberals, then, faced the unenviable task of explaining why, after leading the fight to pass major civil rights laws, blacks appeared to be responding not with gratitude, but with annual explosions of violence, looting, and destruction.
As political analyst James Sundquist observes, the potency of law-and-order themes was evident as early as 1966, when Ronald Reagan (1911–2004) easily won the governorship of California after promising to “get tough” on welfare, crime, riots, and student unrest. In October 1966, the Republican Coordinating Committee charged that officials in the Lyndon B. Johnson (1908–1973) administration had “condoned and encouraged disregard for law and order.” In an August 29, 1967, press conference, House Republican leader Gerald R. Ford (1913–2006) proclaimed:
The war at home—the war against crime—is being lost. The Administration appears to be in full retreat. The homes and the streets of America are no longer safe for our people. This is a frightful situation.… The Republicans in Congress demand that the Administration take the action required to protect our people in their homes, on the streets, at their jobs.… There can be no further Administration excuse for indecision, delay or evasion. When a Rap Brown and a Stokely Carmichael are allowed to run loose, to threaten law-abiding Americans with injury and death, it’s time to slam the door on them and any like them—and slam it hard! (quoted in Sundquist 1983, p. 385)
As Sundquist notes, Ford’s statement illustrates that “by 1967, the Republicans were pulling out all the stops” (on the law and order issue). In 1968 “the issue was propelled by so many events that it hardly needed partisan exploitation” (1983, p. 385).
The cumulative effect of civil-rights violence, assassinations, urban rioting and unrest, the tumult at the 1968 Democratic convention, and the comparatively peaceful 1968 Republican convention in Miami was to create a climate unmistakably ripe for Republican law-and-order appeals. Many Americans were shell-shocked by the rising crime rates and domestic violence of the 1960s, amplified by the increasingly controversial Vietnam War, with antiwar demonstrators burning their draft cards and soldiers coming home, some in body bags, others maimed. In May 1970, Ohio National Guardsmen opened fire on antiwar protesters at Kent State University, killing four students and injuring nine. Many Americans sympathized more with the shooting guardsmen than with the dead students—a sentiment captured in Neil Young’s protest song “Ohio” (written immediately after the Kent State shootings and performed by Crosby, Stills, Nash, and Young). The song characterized conservative sentiment as celebrating the shootings: “should’ve been done long ago.”
The political context in 1968 was clearly ripe for a campaign centering on law and order. The Nixon campaign eagerly seized the opening. Nixon’s selection of Agnew as his running mate sent an unmistakable signal that if elected president he would “crack down” hard on rioters, draft protesters, and others perceived as contributing to or fomenting social and urban unrest. At the 1968 Republican convention, Nixon began his acceptance speech: “As we look at America, we see cities enveloped in smoke and flame. We hear sirens in the night.” Nixon’s speech continued by attacking Democratic-sponsored government programs for the unemployed, the poor, and cities as “reaping an ugly harvest of frustration, violence, and failure across the land.” Nixon’s campaign advertisements, too, reinforced the law-and-order theme. As Kinder and Sanders note:
Nixon’s television advertisements played upon Americans’ fear of crime. While voiceovers pointed to sharp increases in violent crime and blamed the Democrats, the television viewer witnessed scenes of riots and buildings in flames, montages of urban decay, a lonely policeman on the beat, a mugging, crowds taunting the police, faces of anxious and perplexed Americans, and a woman walking alone on a deserted city street as darkness fell. (Kinder and Sanders 1996, p. 226)
After Nixon’s election victory in 1968, Agnew, as vice president, demonstrated a slashing, attack-dog speaking style that further expanded on law-and-order themes. As noted by Sundquist, Agnew toured the country to support Republican candidates, attacking and denouncing “permissivists,” “avowed anarchists and communists,” “misfits,” the “garbage” of society, “thieves, traitors and perverts,” and “radical liberals” (1983, p. 387). This rhetoric is anything but subtle in positioning the Republican Party as representing the masses of “middle America” that abide by society’s rules, are horrified by social violence, and support harsh crackdowns against it—a group that later would be targeted by the appeal of the 1972 Nixon campaign to the “silent majority.” By implication, Agnew sought to position Democrats as representing less savory elements: antiwar radicals, draft-card burners, urban rioters, black militants, hippies, and practitioners of recreational drug use and sexual activity. Agnew’s language, then, expanded the law-and-order theme to imply that Democrats sympathized not only with those who encouraged and practiced crime and violence (i.e., black militants, urban rioters, and draft-card burners), but also with groups that encouraged a more general social permissiveness and breakdown of traditional moral values—that is, permissivists, radical liberals, and perverts. These themes foreshadowed Nixon’s 1972 reelection campaign, which would successfully brand Democratic presidential candidate George McGovern as the candidate of “acid, amnesty, and abortion.”
Since 1972, explicit law-and-order themes have become less central issues in most campaigns. However, a major exception was the 1988 presidential campaign, when George H. W. Bush portrayed Democratic candidate Michael Dukakis as “soft” on violent crime in a campaign that critics charged appealed to racial prejudices. The campaign featured the story of William “Willie” Horton, a black convict who, released from prison on a weekend furlough (a controversial program supported by Massachusetts governor Dukakis), escaped to Maryland, where he attacked a couple in their home. Republican strategists openly exploited the Horton case. One television advertisement, sponsored by an independent pro-Bush group, showed a sinister and unruly-looking Horton in a mug shot, while an announcer recounted Horton’s crimes, emphasized by the words kidnapping, raping, and stabbing appearing in large print on the screen. Republican strategist Lee Atwater (1951–1991) promised that “by the time this election is over, Willie Horton will be a household name.” Later, he said “the Horton case is one of those gut issues that are value issues, particularly in the South, and if we hammer at these over and over, we are going to win.” As Kinder and Sanders note, Atwater joked to a Republican gathering, “There is a story about Willie Horton, who, for all I know may end up being Dukakis’ running mate.… Maybe [Dukakis] will put this Willie Horton on the ticket when all is said and done” (1996, p. 255).
The 1988 campaign illustrates the political dangers for Democrats of not responding adequately to Republican efforts to brand them as “soft on crime.” Especially in the more conservative South, Democrats have responded by emphasizing crime-fighting credentials and support for the death penalty. Bill Clinton used this formula successfully in his 1992 and 1996 presidential campaigns, and in 2005 Democrat Timothy Kaine won the governorship of Virginia, a conservative state. Kaine successfully fended off Republican attacks on his personal opposition to the death penalty by promising to uphold death sentences handed down by Virginia juries. The law-and-order campaign theme most clearly applies to the 1968 presidential campaign. However, it has spawned similar campaign themes, usually pursued by Republicans eager to portray Democrats as “soft on crime,” with varying degrees of success.
Paradoxically, the appeal of law-and-order themes has potentially contributed to citizen vigilantism at times. American history offers numerous examples of citizens “taking the law into their own hands.” White southerners’ lynchings of blacks are but one example of vigilante actions defending a social order that is anything but admirable. In 1898, for instance, the majority-black port city of Wilmington, North Carolina, was consumed by a race riot in which an unknown number of blacks (probably dozens) were murdered and hundreds more banished by an armed white mob bent on establishing white supremacy in local and statewide politics. Historian Timothy Tyson described the actions and motives of riot instigators as follows:
On Nov. 10, 1898, heavily armed columns of white men marched into the black neighborhoods of Wilmington. In the name of white supremacy, this well-ordered mob burned the offices of the local black newspaper, murdered perhaps dozens of black residents—the precise number isn’t known—and banished many successful black citizens and their so-called “white nigger” allies. A new social order was born in the blood and the flames, rooted in what News and Observer publisher Josephus Daniels, heralded as “permanent good government by the party of the White Man.” (Tyson 2006)
Tyson added that the riot “marked the embrace of virulent Jim Crow racism” nationwide. The Red Shirts, a paramilitary arm of the then-white-supremacist Democratic Party, had rampaged across North Carolina before the 1898 election, disrupting black church services and Republican meetings, and attacking blacks, who leaned Republican. These violent, vigilante actions were justified as necessary to preserve a cherished social order, white supremacy, by any means necessary. That their actions were neither lawful nor orderly probably never crossed the minds of either the Red Shirts or the white participants in the Wilmington riot.
Similarly, some anti-immigration activists along the U.S.-Mexican border have launched vigilante efforts to deter would-be undocumented immigrants from crossing from Mexico into the United States. Ranch Rescue is one such group, which styles itself as a defender of U.S. borders and private property rights against what it calls “criminal aliens” and “terrorists” out of a belief that law enforcement is unable or unwilling to act appropriately toward these ends. In 2005 Ranch Rescue founder Casey Nethercutt lost his southern Arizona ranch to satisfy a court judgment levied against him and other Ranch Rescue members for seizing and traumatizing two Mexican immigrants (Pollack 2005). The Wilmington riots and the Ranch Rescue case illustrate behaviors that are probably driven by the conviction that to restore law and order—or a cherished social goal—requires violating law and order at least temporarily.
The vigilantism inherent in the actions of the Wilmington riot instigators and Ranch Rescue members is also reflected in some American films. In movies like the Death Wish series starring Charles Bronson (1921–2003) and The Punisher (1989 and 2004), vigilantism is celebrated, with a curious and unmistakable implicit message: exacting revenge sometimes requires violating law and order—even abandoning the rule of law altogether. Law and order, then, has morphed from an often-potent political symbol from the 1960s through the 1980s to a notion that some action films celebrate violating—but whose impact in real-world politics is largely blunted.
SEE ALSO Law; Rule of Law
Edsall, Thomas Byrne, and Mary D. Edsall. 1991. Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics. New York: Norton.
Kinder, Donald R., and Lynn M. Sanders. 1996. Divided by Color: Racial Politics and Democratic Ideals. Chicago: University of Chicago Press.
National Advisory Commission on Civil Disorders.  1988. The Kerner Report: The 1968 Report of the National Advisory Commission on Civil Disorders. New York: Pantheon.
Pollack, Andrew. 2005. Two Illegal Immigrants Win Arizona Ranch in Court. New York Times, August 19.
Sundquist, James L. 1983. Dynamics of the Party System: Alignment and Realignment of Political Parties in the United States. Rev. ed. Washington, DC: Brookings Institution.
Tyson, Timothy B. 2006. The Ghosts of 1898: Wilmington’s Race Riot and the Rise of White Supremacy. Raleigh News & Observer, November 17.
"Law and Order." International Encyclopedia of the Social Sciences. 2008. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1G2-3045301310.html
"Law and Order." International Encyclopedia of the Social Sciences. 2008. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045301310.html
The importance of law is much more easily determined than its definition. Law is perhaps the most conspicuous arena wherein theory and practice meet. Law often acts as a catalyst in society, introducing ideas and solutions that might not otherwise take hold. Law can also act as a barrier to social progress and justice. The civil rights legislation of the 1960s, constructed in part to end desegregation in the U.S. South, is an example of law as a catalyst. The very laws overturned by the civil rights legislation illustrate how law can impede social change. Law also reacts to cultural and moral developments and can be understood as responding to a new social consensus or understanding. In this sense the same civil rights legislation that acted as a catalyst in one region of the United States can be said to have simultaneously reflected a growing national consensus; in this case, a national judgment that racial segregation in public schools was a gross violation of American ideals.
But if law, and the study of law, is important because of its obvious connection to social problems and social change, what exactly is it? For a straightforward definition one need only consult Black’s Law Dictionary, which describes law as “a rule of civil conduct prescribed by the supreme power in a state,” or more fully, a law is a “general rule of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among human authorities is that which is paramount in a political society.”
These definitions are helpful in identifying some important features of the law and legal systems. Not surprisingly, however, such definitions cannot entirely capture other salient features of what is meant by the term law. A more comprehensive approach to the question of what law is involves taking a closer look at some of the most important components of law. Finally, some of the different types of law must be examined, as well as methods of approaching the study of law.
In what remains one of the most elegant and insightful investigations into the nature of law, the English scholar H. L. A. Hart opens his 1961 book The Concept of Law by noting that law is a unique discipline. Chemists, professors of French literature, and medical doctors do not expend a great deal of intellectual energy on the question of what comprises chemistry, French literature, or medicine. Yet scholars who study law, also known in this context as jurisprudence or philosophy of law, have created a voluminous literature dedicated to the question of the essence of law.
This seems rather odd, given that most of us would have no problem identifying examples of “the law.” Hart describes five features that we would expect to find in a legal system ( 1994, p. 3). First, there are laws mandating some actions (e.g., wearing a seatbelt in a car) while prohibiting others (e.g., driving the car above a certain speed limit). If citizens run afoul of such laws, and are convicted as such, there are prescribed punishments. Second, there are rules that require citizens to repay those whom they have injured in some way. Third, there are laws that allow citizens to create legally recognized relationships that did not exist before; for example, marriage and contract laws. Fourth, there are courts created by law for the express purpose of determining when and how laws have been broken and what recompense is warranted. Finally, there is a special category of law that concerns how new laws are created. Article 1 of the U.S. Constitution is an example of this sort of law, as it specifies how Congress as the legislative branch can create new law.
But note that these bare minimum characteristics describe a legal system, not necessarily the law itself. How might one understand the difference? Although there is some conceptual overlap between the two terms and they are often used interchangeably, generally, legal systems are concrete attempts to instantiate laws within a given political community. Some examples include the U.S. legal system, the British legal system, and the Chinese legal system. Social scientists can describe various legal systems with more precision than they can the more ambiguous concept of law itself. A legal system can be explained by reference to its constitution, legal traditions, and the actual practices of a government; a flow chart can show the defining governing bodies, powers, checks, and legal rights and responsibilities. However, defining and understanding various legal systems does not do away with the need to understand law as conceptually distinct from the various legal systems that attempt to instantiate and embody different understandings of law. One need only consider, as Hart notes, that the very constitutional conventions that establish modern legal systems have something to do with law, yet cannot themselves be understood as identical with the legal systems they create. Legal systems, however they may differ from nation to nation, are attempts to instantiate law.
What, then, is the purpose of law? Law exists to secure social and public goods, which include such important political priorities as order, justice, equality, and liberty. In short, and paraphrasing legal scholar Ronald Dworkin’s introduction to his influential 1986 tome Law’s Empire, we “live in and by the law,” pursuing our goals and relationships, our identities and our livelihoods, within the framework created and maintained by a system of laws.
But this does not capture all the essential elements of what law is or how law works in society. A system of law has by definition at least an element of coercion. Laws that proscribe or enjoin behaviors have attached to them penalties that must be enforced by some level of government. As Hart’s example of a marriage law illustrates, not every law has a punitive or coercive element to it, but given the impossibility of voluntary and unanimous adherence to laws, coercion and punishment are necessary components of a legal system.
This notion of coercion leads naturally to the questions of authority and legitimacy and their relation to a society’s laws. By what authority are laws made, and who has the right to enforce them? One answer to this question is based purely on power: Whoever can impose laws and enforce them has authority. But this answer collapses any understanding of what is lawful into a mere description of who holds power. It undercuts a basic intuition that law serves a normative purpose and can be imposed by a legitimate governing body. Most liberal constitutional democracies, at a procedural minimum, understand a legitimate governing body to be one that enjoys the consent of those governed by its laws and is ultimately accountable for its representation of its citizens through fair and regular elections.
Legitimacy itself is best understood as a normative or moral concept, and it highlights the link between law and morality. Scholars differ as to exactly how morality and law are related, and as to how morality should inform descriptions and theorizing about law, but there is some general agreement that describing law accurately entails some measure of understanding of what actors in the legal arena aim to do. Thus one is brought back to the social goals mentioned previously: justice, order, freedom, and the like. These are inherently normative concepts, the realization of which can be understood as making society somehow better. Traffic laws, for example, aim at providing an orderly and safe means of transportation. This in turn protects the value one’s society places on life, commerce, free movement, and so on. To be sure, there are often tensions between social goods, such as liberty and security, and laws are often inefficient means of promoting or securing such goods (indeed, laws themselves can be instruments of injustice). Moreover, the content of morality and law are not identical. Many citizens might consider a given behavior, for example gossiping, to be immoral without thinking that it should also be illegal. Nevertheless, there does seem to be a connection between law, its social function, and morality. It is difficult to persuasively describe what law is without making at least some reference to a society’s understanding of what law ought to be.
Legal emphases and specialties have proliferated to the point where categorizing all the different types of law is a Herculean task. In addition to traditional subject areas such as contract law, torts, criminal law, and constitutional law, prospective lawyers, social scientists, and interested laypersons can expect to find new avenues of research and study in environmental law, election law, intellectual property law, Internet law, and law pertaining to the rights of indigenous peoples, to name just a few. With that in mind, a few words are in order about some of the central areas of law: constitutional law, criminal law, and torts.
Constitutional Law A constitution acts as the framing document of a given political entity. Often, constitutions will include an aspirational preamble, a declaration or bill of rights, explicit means whereby the constitution may be amended, and the basic framework of the government’s bodies in their executive, legislative, or judicial functions. Constitutions vary a great deal, not only in their allotment of political responsibility but also in their means of interpretation. In the British parliamentary system the executive and legislative functions are both found in Parliament, whereas the U.S. Constitution places legislative duties with Congress and executive duties with the president. In some European nations a court must review the constitutionality of every piece of legislation; in the United States the Supreme Court does not review the constitutionality of a law unless a citizen or state pursues the issue through the lower courts.
Constitutional law, then, is the practice of law that concerns itself both with applying constitutional norms to contemporary issues and with arguments about the constitution itself. An example of the former is found in deciding how to apply constitutional provisions to new technologies or developments. For example, the framers of the U.S. Constitution forbade “unreasonable search and seizure” but could not have anticipated how to apply this norm to telephone technology and wiretapping. Constitutional law is also the purview of those who might want to change the constitution itself.
Criminal Law One of the major areas addressed by constitutional law is criminal law. Criminal law addresses wrongs that are public in nature. District attorneys prosecute crimes in the name of the people of their particular state, province, or city. This is because some wrongs are seen as injuring not only the individual victim, but also the wider public. Criminal law includes prohibited and required actions as well as the safeguards in place to ensure fair trials and sentencing. Obviously this area is most closely identified with the coercive element of law.
Torts Not all wrongs committed between citizens are considered public wrongs that would be tried in a criminal court. These other wrongs are called torts, or civil wrongs, and these sorts of cases are what is commonly meant when lawsuits are filed between citizens. One of the chief differences between civil and criminal trials is that in a civil trial the state acts as a facilitator in the attempt to resolve the conflict, whereas in a criminal trial the state, in its executive function, is itself a party in the dispute. Another key difference is that damages in a civil trial are usually monetary; in a criminal trial prison time in addition to monetary fines is a frequent punishment. Occasionally the same event can result in both a criminal and civil trial. One famous example of this is the 1994 murder of Ron Goldman and Nicole Brown Simpson. O. J. Simpson was found not guilty in the criminal case brought against him by the state of California in 1995, but the parents of Ron Goldman sued successfully for damages in civil court in 1997.
The topic of law can certainly seem overwhelming given the innumerable manifestations of law, debates over its essence and application, and differing social science approaches in how to describe law and its relation to politics and society. There are two methodological aids that may be helpful for anyone interested in pursuing the study of law regardless of discipline (i.e., law school, sociology of law, philosophy of law).
The Central Case The “central case” method is useful for trying to determine what counts as law or a legal system, given that such descriptions are not always a clear matter of either-or categorization. For example, international law courts have many of the salient features of a legal system save one, coercion. There is as yet no authority superior to a nation-state to enforce international law. If coercion is a necessary feature of a legal system, should international law be categorized as law, or something else? The legal philosopher John Finnis in his 1981 book Natural Law and Natural Rights builds on insights from the ancient Greek philosopher Aristotle and contemporary legal philosopher Joseph Raz in presenting the central case as a useful tool (pp. 9–16).
What the central case method allows one to do is articulate several key elements of a legal system and thus identify an authoritative definition of law without having to then dismiss every example that does not exhibit every single key element, or does not exhibit them to the same degree. For example, one might describe the central case of constitutional government as being one that includes the rule of law, regular and fair elections, separation of powers, and an independent judiciary. A political scientist working on comparative legal systems can identify nations whose legal systems fulfill these criteria, as well as nations that are missing one of these elements (e.g., an independent judiciary). We might describe such a nation’s legal system as being a somewhat watered-down version of the central case. The central case method is a useful tool that allows observers to describe legal and social phenomena with enough flexibility to allow for real-world conditions that are not always amenable to orderly categorizations.
The Internal Point of View Another of H. L. A. Hart’s contributions to the study of law is the internal point of view (Hart  1994, pp. 89–91). The social scientist or observer who utilizes the internal point of view counts as worthwhile knowledge the self-understanding of the actors in any given system or social group. Consider for example U.S. Supreme Court Justice Oliver Wendell Holmes’s famous definition of law in his 1897 “The Path of the Law” address, that law is the “prophecies of what the courts will do in fact” (1920, p. 173). Whatever merit this view of law might have, it does not take into account what judges and lawmakers understand themselves to be doing. Legislators who pass laws, and judges who interpret them, understand themselves to be doing more than merely guessing how judges will rule on various situations in the future. Hart’s point is not that one need adopt the viewpoint of the judge, or anyone else, as one’s own. Rather, his argument is that one cannot accurately describe social phenomena without taking the internal view into account, precisely because those internal views are themselves part of the social phenomena and they help explain actions taken by legal actors in the system.
When faced with any study or explanation of legal behavior or phenomena, the notion of the internal point of view is helpful. Does a particular study of why judges decide cases the way they do take into account how judges understand their own role? If not, do the authors offer a persuasive explanation for their methodological choices? If nothing else, understanding Hart’s endorsement of taking into account the internal point of view encourages the student of law and legal phenomena to be aware of important questions regarding the objectivity and accuracy of legal theorists and social scientists.
SEE ALSO Authority; Crime and Criminology; Government; Judiciary; Jurisprudence; Justice; Legal Systems; Litigation, Social Science Role in; Regulation; State, The
Barber, Soterios A., Walter F. Murphy, James E. Fleming, and Stephen Macedo, eds. 2003. American Constitutional Interpretation. 3rd ed. New York: Foundation Press.
Dworkin, Ronald. 1986. Law’s Empire. Cambridge, MA: Harvard University Press.
Finnis, John. 1981. Natural Law and Natural Rights. Oxford: Oxford University Press.
Fuller, Lon. 1969. The Morality of Law. 2nd ed. New Haven, CT: Yale University Press.
Gardner, Brian A., ed. 2004. Black’s Law Dictionary. 8th ed. St. Paul, MN: Thomson West.
Hamilton, Alexander, James Madison, John Jay, et al. 2003. The Essential Federalist and Anti-Federalist Papers, ed. David Wootten. Indianapolis, IN: Hackett.
Hart, H. L. A.  1994. The Concept of Law. 2nd ed. Oxford: Oxford University Press.
Holmes, Oliver Wendell. 1920. Collected Legal Papers. New York: Harcourt, Brace, and Howe.
Raz, Joseph. 1979. The Authority of Law: Essays on Law and Morality. Oxford: Oxford University Press.
Unger, Roberto Mangabeira. 1983. The Critical Legal Studies Movement. Cambridge, MA: Harvard University Press.
Micah J. Watson
"Law." International Encyclopedia of the Social Sciences. 2008. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1G2-3045301307.html
"Law." International Encyclopedia of the Social Sciences. 2008. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3045301307.html
A body of rules of conduct of binding legal force and effect, prescribed, recognized, and enforced by controlling authority.
In U.S. law, the word law refers to any rule that if broken subjects a party to criminal punishment or civil liability. Laws in the United States are made by federal, state, and local legislatures, judges, the president, state governors, and administrative agencies.
Law in the United States is a mosaic of statutes, treaties, case law, administrative agency regulations, executive orders, and local laws. U.S. law can be bewildering because the laws of the various jurisdictions—federal, state, and local—are sometimes in conflict. Moreover, U.S. law is not static. New laws are regularly introduced, old laws are repealed, and existing laws are modified, so the precise definition of a particular law may be different in the future from what it is today.
The U.S. Constitution
The highest law in the United States is the U.S. Constitution. No state or federal law may contradict any provision in the Constitution. In a sense the federal Constitution is a collection of inviolable statutes. It can be altered only by amendment. Amendments pass after they are approved by two-thirds of both houses of Congress or after petition by two-thirds of the state legislatures. Amendments are then ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states. Upon ratification, the amendment becomes part of the Constitution.
Beneath the federal Constitution lies a vast body of other laws, including federal statutes, treaties, court decisions, agency regulations, and executive orders, and state constitutions, statutes, court decisions, agency regulations, and executive orders.
Statutes and Treaties
After the federal Constitution, the highest laws are written laws, or statutes, passed by elected federal lawmakers. States have their own constitution and statutes.
Federal laws generally involve matters that concern the entire country. State laws generally do not reach beyond the borders of the state. Under Article VI, Section 2, of the U.S. Constitution, federal laws have supremacy over state and local laws. This means that when a state or local law conflicts with a federal law, the federal law prevails.
Federal statutes are passed by Congress and signed into law by the president. State statutes are passed by state legislatures and approved by the governor. If a president or governor vetoes, or rejects, a proposed law, the legislature may override the veto if at least two-thirds of the members of each house of the legislature vote for the law.
Statutes are contained in statutory codes at the federal and state levels. These statutory codes are available in many public libraries, in law libraries, and in some government buildings, such as city halls and courthouses. They are also available on the World Wide Web. For example, the statutory codes that are in effect in the state of Michigan can be accessed at <http://www.michigan.gov/orr>. A researcher may access the United States Code, which is the compilation of all federal laws, at <http://uscode.house.gov>. The site is maintained by the Office of the Law Revision Counsel of the U.S. House of Representatives.
On the federal level, the president has the power to enter into treaties, with the advice and consent of Congress. Treaties are agreements with sovereign nations concerning a wide range of topics such as environmental protection and the manufacture of nuclear missiles. A treaty does not become law until it is approved by two-thirds of the U.S. Senate. Most treaties are concerned with the actions of government employees, but treaties also apply to private citizens.
Statutes are the primary source of law, and the power to enact statutes is reserved to elected lawmakers. However, judicial decisions also have the force of law. Statutes do not cover every conceivable case, and even when a statute does control a case, the courts may need to interpret it. Judicial decisions are known collectively as case law. A judicial decision legally binds the parties in the case, and also may serve as a law in the same prospective sense as does a statute. In other words, a judicial decision determines the outcome of the particular case, and also may regulate future conduct of all persons within the jurisdiction of the court.
The opinions of courts, taken together, comprise the common law. When there is no statute specifically addressing a legal dispute, courts look to prior cases for guidance. The issues, reasoning, and holdings of prior cases guide courts in settling similar disputes. A prior opinion or collection of opinions on a particular legal issue is known as precedent, and courts generally follow precedent, if any, when deciding cases. Breaking with precedent may be justified when circumstances or attitudes have changed, but following precedent is the norm. This gives the common law a certain predictability and consistency. The common law often controls civil matters, such as contract disputes and personal injury cases (torts). Almost all criminal laws are statutory, so common law principles are rarely applied in criminal cases.
Sometimes courts hear challenges to statutes or regulations based on constitutional grounds. Courts can make law by striking down part or all of a particular piece of legislation. The Supreme Court has the power to make law binding throughout the country on federal constitutional issues. The highest court in each state has the same power to interpret the state constitution and to issue holdings that have the force of law.
Occasionally courts create new law by departing from existing precedent or by issuing a decision in a case involving novel issues, called a case of first impression. If legislators disagree with the decision, they may nullify the holding by passing a new statute. However, if the court believes that the new statute violates a constitutional provision, it may strike down all or part of the new law. If courts and lawmakers are at odds, the precise law on a certain topic can change over and over.
Courts of law are a fundamental part of the U.S. judicial system. The U.S. Constitution and all state constitutions recognize a judicial branch of government that is charged with adjudicating disputes. Beginning in the 1990s, vigilante organizations challenged the judicial system by establishing their own so-called common-law courts. By 1996 these common-law courts existed in more than 30 states. Though they have no legitimate power, being created without either constitutional or statutory authority, and in fact sometimes contravene established law.
Traditionally, common-law courts administered the common law, that is, law based on prior decisions rather than statutes. These new common-law courts, however, are premised on a mixture of U.S. constitutional law, English common law, and the Bible, all filtered through an often racist and anti-Semitic world view that holds the U.S. legal system to be illegitimate. These common-law courts imitate the formalities of the U.S. justice system, issuing subpoenas, making criminal indictments, and hearing cases. Most of their cases involve divorce decrees and foreclosure actions. Many of the persons on the courts or seeking their assistance are in dire financial circumstances. They wish to prevent the loss of their property by having a common-law court declare them free of the loans they have secured from banks.
Though common-law courts appeared to be merely a symbolic attempt by extremists to assert their political legitimacy, the actions of some of them led to prosecution for criminal conspiracy. Common-law courts have issued arrest warrants for judges and prosecutors in Montana and Idaho and have threatened sheriffs who refused to follow their instructions. In 1994 the Garfield County, Montana, prosecutor charged members of a common-law court with criminal syndicalism, for advocating violence against public officials. One court member was sentenced to ten years in prison, and others received shorter sentences.
When researching a legal issue, it is helpful to consult relevant case law. The researcher first finds the relevant annotated statutes, and then reads the cases that are listed under the statutes. Reading case law helps the researcher understand how the courts interpret statutes, and also how the courts analyze related issues that are not covered in the statutes. Volumes of case law can be found in some public libraries, in law libraries, in courthouses, and in state government buildings such as statehouses and state libraries. Case law research can also be conducted using the internet. For example, Cornell University's online Legal Information Institute (<http://www.law.cornell.edu>) offers recent and historic U.S. Supreme Court decisions, as well as recent New York appeals decisions.
Agency Regulations and Executive Orders
Administrative agencies may also create laws. The federal and state constitutions implicitly give the legislatures the power to create administrative agencies. Administrative agencies are necessary because lawmakers often lack detailed knowledge about important issues, and they need experts to manage the regulation of complex subjects. On the federal level, for example, the Department of the Interior was created by Congress to manage the nation's natural resources. In creating the agency, Congress gave it power to promulgate regulations concerning the use and protection of natural resources.
Administrative agency regulations have the force of law if they have a binding effect on the rights and duties of persons. For example, interior department regulations that prohibit mining or logging in certain areas of the country are considered law, even though they are not formulated by an elected official or judge. Federal administrative agency rules are approved by Congress, so ultimately they are a product of the will of elected officials. Similarly, on the state and local levels, an administrative agency may promulgate rules that have the force of law, but only at the pleasure of the elected lawmakers that created the agency. If an agency seeks to change a regulation, it must, in most cases, inform the public of its intentions and provide the public with an opportunity to voice concerns at a public meeting.
Not all agency regulations have the force of law. Agency rules that merely interpret other rules, state policy, or govern organization, procedure, and practice need not be obeyed by parties outside the agency.
Some administrative agencies have quasi-judicial powers. That is, they have limited authority to hear disputes and make binding decisions on matters relevant to the agency. For example, the health and human services department (HHS) has a court with authority to hear cases concerning actions by the HHS, such as the denial of social security benefits. An administrative law judge (ALJ) presides over the court, and appeals from ALJ decisions can be taken to an HHS appeals council. If an administrative agency has quasi-judicial powers, decisions made by the ALJ and boards of appeals have the force of law.
The quickest way to uncover information about state agency regulations is to search the World Wide Web. Most state agencies maintain a comprehensive website. Each state's secretary of state can also be accessed on the Web. Most agencies are named according to their area of concern. For example, a department of gaming is concerned with gambling, and a department of fish, game, and wildlife is concerned with issues related to hunting and wildlife conservation.
Executive orders are issued to interpret, implement, or administer laws. On the federal level, executive orders are issued by the president or by another executive branch official under the president's direction. Executive orders range from commands for detailed changes in federal administrative agency procedures to commands for military action. To have the force of law, a federal executive order must be published in the Federal Register, the official government publication of executive orders and federal administrative agency regulations. On the state level, governors have similar authority to make laws concerning state administrative agencies and state military personnel.
Counties, cities, and towns also have the authority to make laws. Local laws are issued by elected lawmakers and local administrative agencies. Local laws cannot conflict with state or federal laws. Decisions by local courts generally operate as law insofar as they apply to the participants in the case. To a lesser extent, local court decisions may have a prospective effect. That is, a local court decision can operate as precedent, but only in cases brought within the same jurisdiction. For example, a decision by a court in Green County may affect future court cases in Green County, but it has no bearing on the law in any other county. Local laws can be found in local courthouses, in local libraries, and in state government libraries. Local laws may also be accessed via the World Wide Web.
Administrative Law and Procedure; Civil Law; Congress of the United States; Constitutional Amendment; Constitution of the United States;Court Opinion; Criminal Law; Equity; Federalism; Federal Register; Judicial Review; Private Law; Public Law; Stare Decisis.
"Law." West's Encyclopedia of American Law. 2005. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1G2-3437702592.html
"Law." West's Encyclopedia of American Law. 2005. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3437702592.html
The birth of the Space Age in the late 1950s opened a new frontier for exploration. It also opened a new arena for law, since existing international laws and treaties did not cover launches or other activities in space. Given the backdrop of the Cold War, there was a concern by some that space could become a new battlefield between the United States and the Soviet Union. In 1959, in an effort to keep space free of conflict, the United Nations established the Committee on the Peaceful Uses of Outer Space (COPUOS), which was charged with, among other things, considering the legal problems that could stem from space travel. COPUOS, through its legal subcommittee, led to the development of several space treaties.
The first international treaty that included specific provisions related to space was a nuclear test ban treaty in 1963. That accord specifically prohibited countries from detonating nuclear weapons in space. The first treaty devoted exclusively to space, though, was the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, more commonly known as the Outer Space Treaty. This 1967 agreement prevents nations from making territorial claims in space or placing weapons of mass destruction there. The treaty does allow nations to maintain sovereignty over satellites and other vehicles they launch, and requires nations to be responsible for any damage or loss caused by spacecraft launched from their territory, regardless of whether the spacecraft belonged to the government or another organization or company. The Outer Space Treaty also requires nations to treat astronauts as "envoys of mankind" and render them any necessary assistance.
The Outer Space Treaty was seen at the time as a major achievement toward the goal of peaceful exploration of space, at a time when the two major nations involved in space exploration, the United States and Soviet Union, were locked in struggle against each other. By preventing countries from laying claim to the Moon or other bodies, prohibiting the placement of nuclear weapons, and preventing countries from establishing military bases in space, the treaty largely succeeded in its goal of keeping space from being turned into a new battleground. While the militaries of the United States and former Soviet Union, as well as other nations, make extensive use of space, it is for the purposes of reconnaissance , navigation, and communication.
Some provisions of the Outer Space Treaty were followed up by additional agreements over the next several years. The section of the treaty regarding astronauts was expanded upon with a separate agreement in 1968, the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, regarding the rescue and return of astronauts and objects. This agreement requires countries to assist astronauts who land on their territory and return them to their home country as soon as possible. Another agreement in 1972, the Convention on International Liability for Damage Caused by Space Objects, expanded the section of the Outer Space Treaty that governs the liability a country has for damage that a spacecraft could cause to another country. A 1975 agreement, the Convention on Registration of Objects Launched into Outer Space, requires countries to give the United Nations basic details about each spacecraft it launches.
The last, and most controversial, space treaty was the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, completed in 1979. This accord, popularly known as the Moon Treaty, requires nations to use the Moon and other bodies for peaceful, scientific purposes and not to damage its environment. The treaty also requires nations to treat the Moon and its natural resources as the "common heritage of mankind"—they do not belong to a single country, organization, or company. Any benefits gained from those resources, according to the treaty, are to be shared with all countries that signed the agreement through an international organization.
The language in the Moon Treaty regarding the use of the Moon's natural resources generated considerable controversy in the United States and other nations, since it would prevent private enterprise from developing in space. The United States did not sign the treaty, in part because lobbying by space activists opposed to the agreement led the Senate to opt against signing it. Only nine nations have ratified the treaty, none of which are major spacefaring nations. While enough nations have ratified the treaty for it to go into effect, the lack of support from major nations means that the treaty has little real power.
The United Nations has developed no additional space treaties since the Moon Treaty. However, there have been a number of minor declarations that COPUOS has approved since then. These declarations cover issues such as the use of television broadcasting and remote sensing satellites as well as the use of nuclear power sources in spacecraft. In recent years there have been discussions about either renegotiating the Outer Space Treaty or developing a new treaty to expressly forbid weapons of any kind in space, including those that might be used in a missile defense system. This effort has been opposed in particular by representatives of the United States, who note that there is no "arms race" in space as of 2002, and no evidence of one for the foreseeable future.
The field of space law is not limited to international treaties. A number of nations, including the United States, have written their own laws governing the use of space by their citizens. Many of these laws are a direct outgrowth of the international treaties, fulfilling some of the provisions in them. For example, in the United States, companies that wish to launch a satellite are required by law to obtain a license from the Federal Aviation Administration to ensure that the launch will be conducted in a safe manner. This law is in place because the Outer Space Treaty makes the U.S. government responsible for all launches from its territory, including those by private parties.
see also Governance (volume 4); Law of Space (volume 1); Political Systems (volume 4).
Reynolds, Glenn H., and Robert P. Merges. Outer Space: Problems of Policy and Law. Boulder, CO: Westview Press, 1994.
Von Bencke, Matthew J. The Politics of Space. Boulder, CO: Westview Press, 1997.
"Frequently Asked Questions about Space Law." International Institute of Air & SpaceLaw. <http://ruljis.leidenuniv.nl/group/jflr/www/faq.htm>.
"International Space Law." United Nations Office for Outer Space Affairs. <http://www.oosa.unvienna.org/SpaceLaw/spacelaw.htm>.
"Space Law." McGill University Institute of Air & Space Law. <http://www.iasl.mcgill.ca/spacelaw.htm>.
Foust, Jeff. "Law." Space Sciences. 2002. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1G2-3408800376.html
Foust, Jeff. "Law." Space Sciences. 2002. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3408800376.html
See also 103. CRIME ; 185. GOVERNMENT
- a signature of a proxy, one who is not party to the transaction at hand. —allographic , adj.
- the right of a nation at war to destroy the property of a neutral, subject to indemnification.
- anomie, anomy, anomia
- a state or condition of individuals or society characterized by an absence or breakdown of social and legal norms and values, as in the case of an uprooted people. —anomic , adj.
- antinomia, antinomy
- a real or apparent contradiction in a statute. —antinomic, antinomian , adj.
- the theological doctrine maintaining that Christians are freed from both moral and civil law by God’s gift of grace. —antinomian, antinomist , n.
- the solemn affirmation of the truth of a statement. —asseverator , n. —asseverative , adj.
- the crime of adultery.
- the offense of frequently exciting or stirring up suits and quarrels between others. —barrator , n. —barratrous , adj.
- an intentional act that, directly or indirectly, causes harmful contact with another’s person.
- a legal notice to beware; a notice placed on file until the caveator can be heard. —caveator , n. —caveatee , n.
- a person who studies civil law.
- formerly, in common law, acquittal on the basis of endorsement by the friends or neighbors of the accused. Also called trial by wager of law. —compurgator , n. —compurgatory , adj.
- one who testifies to the innocence of an accused person.
- a person who puts a particular interpretation on provisions of the U.S. Constitution, especially those provisions dealing with the rights of individuals and states.
- the status of a married woman.
- an act or action having the character of a crime. Also criminality . —criminal , n., adj.
- 1. the condition of blameworthiness, criminality, censurability.
- 2. Obsolete, guilt. —culpable , adj.
- a condition of guilt; failure to do that which the law or other obligation requires. See also 160. FINANCE . —delinquent , adj.
- Obsolete, a delineation of jurisdiction.
- an abnormal fear or dislike of justice.
- Archaic. 1. the act of disinheriting.
- 2. the condition of being disinherited.
- any unreasonable harshness or severity in laws. —Draconian, Draconic , adj.
- the right one landowner has been granted over the land of another, as the right of access to water, right of way, etc., at no charge.
- 1. a specialist in law relating to the feudal system.
- 2. a person who holds or Iets land under the provisions of the feudal system.
- a person to whom property or power is entrusted for the benefit of another. —fiducial, fiduciary , adj.
- 1. law as a science or philosophy.
- 2. a system of laws or a particular branch of law. —jurisprudent , adj.
- an expert on the codification and revision of Roman laws ordered by the 6th-century Byzantine emperor Justinian. —Justinian code , n.
- language typical of lawyers, laws, legal forms, etc., characterized by archaic usage, prolixity, redundancy and extreme thoroughness.
- a strict and usually literal adherence to the law. —legalistic , adj.
- a person who is skilled or well versed in law.
- a compulsion for involving oneself in legal disputes.
- the practice of religious legalism, especially the basing of standards of good actions upon the moral law.
- a system of government based on a legal code.
- 1. the art of drafting laws.
- 2. a treatise on the drawing up of laws. —nomographer , n. — nomographic , adj.
- the science of law. —nomologist , n. —nomological , adj.
- the state of being under the age required by law to enter into certain responsibilities or obligations, as marrying, entering into contracts, etc. See also 81. CHURCH ; 331. PROPERTY and OWNERSHIP .
- pandect, pandects
- a legal code or complete body or system of laws.
- 1. the writer of a complete code of the laws of a country.
- 2. the writer of a complete digest of materials on a subject.
- 1. a lawyer whose practice is of a small or petty character; a lawyer of little importance.
- 2. a shyster lawyer. —pettifoggery , n.
- the rights or legal status of the last child bom in a family. Also called ultimogeniture . Cf. primogeniture .
- the rights or legal status of the first born in a family. Cf. postremogeniture .
- an expert in public or international law.
- the advocacy of revision, especially in relation to court decisions. —revisionist , n. —revisionary , adj.
- 1. the state or practice of being a squatter, or one who settles on government land, thereby establishing ownership.
- 2. the state or practice of settling in vacant or abandoned property, either for shelter or in an attempt to establish ownership. —squatter , n.
- the drawing up of legal documents. —symbolaeographer , n.
- 1. the condition of land tenure of a vassal.
- 2. the fief or lands held.
"Law." -Ologies and -Isms. 1986. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1G2-2505200250.html
"Law." -Ologies and -Isms. 1986. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-2505200250.html
law, rules of conduct of any organized society, however simple or small, that are enforced by threat of punishment if they are violated. Modern law has a wide sweep and regulates many branches of conduct.
Development of Early Law
Law does not develop systematically until a state with a centralized police authority has appeared. For this development a written language is not required, but necessarily the earliest known legal codes are those of literate societies. Examples of early law systems are to be found in the code of Hammurabi (Babylonia), the Laws of Manu (India), and the Mosaic code (Palestine). These codes show what would seem to be the universal tendency of the religious and ethical system of a society to produce a legal order to enforce its ethical and social mandates. In classical antiquity the first codes of law are those attributed to Solon and to Lycurgus.
Roman Law and Its Influence
The first law code in Roman history was the Law of the Twelve Tables, the prelude to the development of Roman law, a highly elaborate system that has had immeasurable influence on the growth of Western law. It was summarized in the Corpus Juris Civilis in the time of Justinian. Roman law developed the distinction between public law (in which the state is concerned directly, e.g., treason and taxation) and private law (concerned with disputes between persons, e.g., over contracts).
The breakup of the Roman Empire under the pressure of the Germanic invasions brought the disruption of the Roman legal administration. Temporarily the codes of Germanic laws eclipsed Roman law in Western Europe. In the simpler Germanic codes the main distinctive element was the use of composition for crimes, but most of the Germanic codes showed at least some Roman influence.
Roman law, together with the Bible, was the basis of canon law, the legal system of the Roman Catholic Church, while Muslim law was derived from the Qur'an and the traditional sayings of Muhammad, and later Hebrew law was based on the Talmud. Feudal law also showed the effects of Roman law, although in theory it was based not upon any concept of the state but on personal relations (see feudalism).
The revival of trade in the commercial revolution, and in the Renaissance brought new developments in maritime law. The study of Roman law itself was also revived, notably at the Univ. of Bologna. It became the basis of most Continental law, as exemplified in the French Code Napoléon, the archetype of codes that govern the jurisdiction of civil law.
In England after the Norman Conquest the feudal law was ultimately replaced by the law of the royal courts, such as the king's bench. The royal courts developed common law, i.e., judicial legislation as opposed to the law of the formally enacted statute. Common law adhered excessively to precedent, and equity, exercised by the king's chancery, appeared, with its reliance upon the dictates of conscience rather than upon precedent.
The two systems became bitter rivals. In the early 17th cent. Francis Bacon championed equity, while such eminent jurists as Edward Coke upheld the common law. In the 18th cent. English jurisprudence stressed natural law (the theory that law must incorporate the natural rights of humans), and the highly influential work of Sir William Blackstone exemplifies the theory.
The work of Blackstone was the most important influence in U.S. law (except for Louisiana, Puerto Rico, and the Virgin Islands, where Continental civil law prevailed). Among those who helped to develop the American concept of law were James Kent and Joseph Story; in constitutional law the most important figure was John Marshall. In the United States the distinctive feature is the coexistence of federal and state law, for the U.S. Constitution limits the sphere in which federal law is supreme.
See H. L. A. Hart, The Concept of Law (1961); R. A. Wormser, The Story of the Law and the Men Who Made It (rev. ed. 1962); R. David, Major Legal Systems in the World Today (tr. 1968).
"law." The Columbia Encyclopedia, 6th ed.. 2016. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1E1-law-law.html
"law." The Columbia Encyclopedia, 6th ed.. 2016. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1E1-law-law.html
law / lô/ • n. 1. (often the law) the system of rules that a particular country or community recognizes as regulating the actions of its members and may enforce by the imposition of penalties: they were taken to court for breaking the law a license is required by law [as adj.] law enforcement. ∎ an individual rule as part of such a system: an initiative to tighten up the laws on pornography. ∎ such systems as a subject of study or as the basis of the legal profession: he was still practicing law [as adj.] a law firm. Compare with jurisprudence. ∎ a thing regarded as having the binding force or effect of a formal system of rules: what he said was law. ∎ (the law) inf. the police: he'd never been in trouble with the law in his life. ∎ statutory law and the common law. Compare with equity. ∎ a rule defining correct procedure or behavior in a sport: the laws of the game. 2. a statement of fact, deduced from observation, to the effect that a particular natural or scientific phenomenon always occurs if certain conditions are present: the second law of thermodynamics. ∎ a generalization based on a fact or event perceived to be recurrent: the first law of American corporate life is that dead wood floats. 3. the body of divine commandments as expressed in the Bible or other religious texts. ∎ (the Law) the Pentateuch as distinct from the other parts of the Hebrew Bible (the Prophets and the Writings). ∎ (also the Law of Moses) the precepts of the Pentateuch. Compare with Torah. PHRASES: at (or in) law according to or concerned with the laws of a country: an agreement enforceable at law an attorney-at-law. be a law unto oneself behave in a manner that is not conventional or predictable. go to law resort to legal action in order to settle a matter. law and order a situation characterized by respect for and obedience to the rules of a society. the law of the junglesee jungle. lay down the law issue instructions to other people in an authoritative or dogmatic way. take the law into one's own hands punish someone for an offense according to one's own ideas of justice, esp. in an illegal or violent way. take someone to law initiate legal proceedings against someone. there's no law against it inf. used in spoken English to assert that one is doing nothing wrong, esp. in response to an actual or implied criticism: I can laugh, can't I? There's no law against it.
"law." The Oxford Pocket Dictionary of Current English. 2009. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O999-law.html
"law." The Oxford Pocket Dictionary of Current English. 2009. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O999-law.html
law of averages the supposed principle that future events are likely to turn out so that they balance any past deviation from a presumed average. The term is recorded from the 19th century, and derives initially from a comment by the historian Henry Thomas Buckle (1821–62). The first (sceptical) reference to ‘Mr Buckle's ‘.Law of Averages’. ’ is found in 1875, and from then on the term became established.
law of nations international law, a body of rules established by custom or treaty and recognized by nations as binding in their relations with one another. Law of nations, a translation of the Latin phrase jus gentium, was originally used to denote rules common to the law of all nations. The transition to the current sense developed particularly through the appeal to ‘the law of nations’ in such matters as the treatment of ambassadors or the obligation to observe treaties.
law of the jungle the supposed code of survival in jungle life, originally shown favourably in Kipling's Jungle Books (1894–5), ‘Now this is the Law of the Jungle—as old and as true as the sky.’ The term is now used to embody the principle that those who are strong and apply ruthless self-interest will be most successful.
Law Society the professional body responsible for regulating solicitors in England and Wales, established in 1825.
one law for the rich and another for the poor the poor are likely to be more harshly treated by the legal system; proverbial saying, mid 19th century.
See also hard cases make bad law, ignorance of the law is no excuse, laws, the law of the Medes and Persians at Mede, necessity knows no law, the Law and the Prophets at prophet.
ELIZABETH KNOWLES. "law." The Oxford Dictionary of Phrase and Fable. 2006. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O214-law.html
ELIZABETH KNOWLES. "law." The Oxford Dictionary of Phrase and Fable. 2006. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O214-law.html
the more laws, the more thieves and bandits a rigid and over-detailed code of law is likely to foster rather than prevent lawbreaking; proverbial saying, recorded in English from the late 16th century. The view that ‘the more laws and orders are made prominent, the more thieves and bandits there will be’, is attributed to the Chinese philosopher Lao Tzu (c.604–531 bc). The idea is also found in classical Western thought; for example, the Roman historian Tacitus has, ‘the more corrupt the state the more numerous the laws.’
See also law, new lords, new laws.
ELIZABETH KNOWLES. "laws." The Oxford Dictionary of Phrase and Fable. 2006. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O214-laws.html
ELIZABETH KNOWLES. "laws." The Oxford Dictionary of Phrase and Fable. 2006. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O214-laws.html
Hence lawful XIII, lawless XII; after ON. lǫgfullr, lǫglauss. lawyer XIV(lawier, beside lawer); see -IER1.
T. F. HOAD. "law." The Concise Oxford Dictionary of English Etymology. 1996. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O27-law.html
T. F. HOAD. "law." The Concise Oxford Dictionary of English Etymology. 1996. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O27-law.html
"law." World Encyclopedia. 2005. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O142-law.html
"law." World Encyclopedia. 2005. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O142-law.html
This entry contains seven subentries:
"Law." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. 2004. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1G2-3404900616.html
"Law." Europe, 1450 to 1789: Encyclopedia of the Early Modern World. 2004. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3404900616.html
"Law." Dictionary of American History. 2003. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1G2-3401802330.html
"Law." Dictionary of American History. 2003. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1G2-3401802330.html
the Law, in Judaism: see Torah.
"Law, the." The Columbia Encyclopedia, 6th ed.. 2016. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1E1-X-Law-relig.html
"Law, the." The Columbia Encyclopedia, 6th ed.. 2016. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1E1-X-Law-relig.html
JOHN BOWKER. "Law." The Concise Oxford Dictionary of World Religions. 1997. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O101-Law.html
JOHN BOWKER. "Law." The Concise Oxford Dictionary of World Religions. 1997. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O101-Law.html
"law." Oxford Dictionary of Rhymes. 2007. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O233-law.html
"law." Oxford Dictionary of Rhymes. 2007. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O233-law.html
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"Laws." Oxford Dictionary of Rhymes. 2007. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O233-Laws.html
FRAN ALEXANDER , PETER BLAIR , JOHN DAINTITH , ALICE GRANDISON , VALERIE ILLINGWORTH , ELIZABETH MARTIN , ANNE STIBBS , JUDY PEARSALL , and SARA TULLOCH. "LAWS." The Oxford Dictionary of Abbreviations. 1998. Encyclopedia.com. 31 Aug. 2016 <http://www.encyclopedia.com>.
FRAN ALEXANDER , PETER BLAIR , JOHN DAINTITH , ALICE GRANDISON , VALERIE ILLINGWORTH , ELIZABETH MARTIN , ANNE STIBBS , JUDY PEARSALL , and SARA TULLOCH. "LAWS." The Oxford Dictionary of Abbreviations. 1998. Encyclopedia.com. (August 31, 2016). http://www.encyclopedia.com/doc/1O25-LAWS.html
FRAN ALEXANDER , PETER BLAIR , JOHN DAINTITH , ALICE GRANDISON , VALERIE ILLINGWORTH , ELIZABETH MARTIN , ANNE STIBBS , JUDY PEARSALL , and SARA TULLOCH. "LAWS." The Oxford Dictionary of Abbreviations. 1998. Retrieved August 31, 2016 from Encyclopedia.com: http://www.encyclopedia.com/doc/1O25-LAWS.html