CH A P T E R

1
Introduction

A t the closing of the first decade of the twenty-first century, law increasingly
permeates all forms of social behavior. Its significance and pervasiveness
resonate on all walks of life. In subtle and, at times, not so subtle ways, a com-
plex and voluminous set of laws governs our entire existence and our every
action. It determines registration at birth and the distribution of possessions at
death. Laws regulate dating and mating behaviors, prenuptial agreements,
marriage, divorce, pet ownership, and the conduct of professors in the class-
room. Laws set the speed limit and the length of school attendance. Laws control
what we eat; where and what we buy and when; how we use our computers; and
what we can see in movie theaters or on television. Laws dictate what we wear
and where. Laws protect ownership and define the boundaries of private and
public property. Laws regulate business; raise revenue; provide for redress
when agreements are broken; and uphold social institutions, such as the family.
Laws protect the prevailing legal and political systems by defining power rela-
tionships, thus establishing who is superordinate and who is subordinate in any
given situation. Laws maintain the status quo and provide the impetus for
change. Finally, laws, in particular criminal laws, not only protect private and
public interests but also preserve order. There is no end to the ways in which the
law has a momentous effect upon our lives.
The principal mission of this book is to serve as a text in undergraduate
courses on law and society. The large number of predominantly recent refer-
ences cited also makes the text a valuable and indispensable source for graduate
students engaging in research on the sociology of law, instructors who may be
teaching this subject for the first time, and anyone else wanting to gain greater
insight and understanding of the intricacies of law and society. Because the book
has been written primarily for the undergraduate student, I opted for an eclectic
approach to the often controversial subject matter without embracing or advo-
cating a particular position, ideology, or theoretical stance. To have done so
would have been too limiting for a text, because important contributions would
have been excluded or considered out of context. Thus, the book does not pro-
pound a single thesis or position; instead, it exposes the reader to the dominant
theoretical perspectives and sociological methods used to explain the interplay
between law and society in the social-science literature. Should any reader care
to follow up on a theoretical perspective or practical concern, or advocate or

-. -
•2 CHAPTER 1 Introduction CHAPTER 1 Introduction 3•

defend a certain position, the chapter topics, the references, and the abundant In the powerful words of Oliver Wendell Holmes, Jr. (1881:5), "The law
and diversified suggested further readings will provide the necessary first step embodies the story of a nation's development through many centuries" and
toward the further exploration of most law- and society-related issues. every legal system stands in close relationship to the ideas, aims, and purposes
of society. Law reflects the intellectual, social, economic, and political climate
of its time. Law is inseparable from the interests, goals, and understandings that
OVERVIEW deeply shape or compromise social and economic life (Morales, 2003; Posner,
Throughout history, in every human society there have been mechanisms for 2001, 2007; Sarat and Kearns, 2000). It also reflects the particular ideas, ideals,
the declaration, alteration, administration, and enforcement of the rules by and ideologies that are part of a distinct "legal culture" - those attributes of
which people live. Not all societies, however, utilize a formal legal system behavior and attitudes that make the law of one society different from that of
(courts, judges, lawyers, and law-enforcement agencies) to the same degree. another, that make, for example, the law of the Eskimos different from the law
For example, throughout the third world, the formal systems of property rights of the French (Friedman, 1998, 2002).
taken for granted in advanced nations simply do not exist. As the renowned In the academic discipline of sociology, the study of law embraces a num-
economist Hernando de Soto (2001) points out in his oft-quoted influential ber of well-established areas of inquiry (see, for example, Abadinsky, 2008;
book, The Mystery of Capital, 80 percent of the poor people in the developing Cotterrell, 2006; Friedrichs, 2006). The discipline is concerned with values, inter-
world cannot identify who owns what, addresses cannot be verified, and the action patterns, and ideologies that underlie the basic structural arrangements in
rules that govern property vary from neighborhood to neighborhood or even a society, many of which are embodied in law as substantive rules. Both sociology
from street to street. The notion of holding title to property is limited primarily and law are concerned with norms-rules that prescribe the appropriate behav-
to a handful of elites whose assets are paperized in the formal documents and ior for people in a given situation. The study of conflict and conflict resolution
legal structures common in the West. are central in both disciplines. Both sociology and law are concerned with the
Moreover, traditional societies rely almost exclusively on custom as the nature of legitimate authority; the mechanisms of social control; issues of human
source of legal rules and resolve disputes through conciliation or mediation by rights, power arrangements, the relationship between public and private spheres,
village elders, or by some other moral or divine authority (see, for example, and formal contractual commitments (Baumgartner, 1999; McIntyre, 1994;
Pottage and Mundy, 2004). As for law, such societies need little of it. Traditional Selznick, 1968:50). Both sociologists and lawyers are aware that the behavior of
societies are more homogeneous than modern industrial ones. Social relations judges, jurors, criminals, litigants, and other consumers of legal products is
are more direct and intimate, interests are shared by virtually everyone, and charged with emotion, distorted by cognitive glitches and failures of will, and
there are fewer things to quarrel about. Because relations are more direct and constrained by altruism, etiquette, or a sense of duty.
intimate, nonlegal and often informal mechanisms of social control are generally Historically, the rapprochement of sociology (along with anthropology,
more effective. economics, psychology, and other social sciences) (Kapardis, 2003; Posner,
As societies become larger, more complex, and modern, homogeneity gives 2001, 2007; Roesch et al., 1999) and law is not novel. Early American sociolo-
way to heterogeneity. Common interests decrease in relation to special interests. gists, after the turn of the century, emphasized the various facets of the rela-
Face-to-face relations become progressively less important, as do kinship ties. tionship between law and society. E. Adamson Ross (1922:106) considered law
Access to material goods becomes more indirect, with a greater likelihood of as "the most specialized and highly furnished engine of control employed by
unequal allocation, and the struggle for available goods becomes intensified. society." Lester F. Ward (1906:339), who believed in governmental control and
As a result, the prospects for conflict and dispute within the society increase. social planning, predicted a day when legislation would endeavor to solve
The need for explicit regulatory and enforcement mechanisms becomes increas- "questions of social improvement, the amelioration of the conditions of all the
ingly apparent. The development of trade and industry requires a system of people, the removal of whatever privations may still remain, and the adoption
formal and universal legal rules dealing with business organizations and com- of means to the positive increase of the social welfare, in short, the organiza-
mercial transactions, subjects that are not normally part of customary or religious tion of human happiness."
law. Such commercial activity also requires guarantees, predictability, continuity, The writings of these early sociologists have greatly influenced the devel-
and a more effective method for settling disputes than that of trial by ordeal, opment of the school of legal philosophy that became a principal force in
trial by combat, or decision by a council of elders. As one commentator has noted: American sociological jurisprudence. (Sociological jurisprudence is the study
"The paradox ... is that the more civilized man becomes, the greater is man's of law and legal philosophy, and the use of its ideas in law to regulate conduct
need for law, and the more law he creates. Law is but a response to social needs" (Lauderdale, 1997:132). It is based on a comparative study of legal systems,
(Hoebel, 1954:292). legal doctrines, and legal institutions as social phenomena and considers law as
 •4 CHAPTER 1 Introduction CHAPTER 1 Introduction 5•
it actually is-the "law in action" as distinguished from the law as it appears in research institutes such as the Center for Law and Society at Berkeley, the
books.) Roscoe Pound, the principal figure in sociological jurisprudence, relied Institute for Law and Society at New York University, and the Institute for
heavily on the findings of early sociologists in asserting that law should be Legal Studies at the University of Wisconsin that are well established and
studied as a social institution. For Pound (1941:18), law was a specialized form remain influential (Abel, 1995:10).
of social control that exerts pressure on a person "in order to constrain him to Of course, interest in law and society is not confined to the United States.
do his part in upholding civilized society and to deter him from antisocial con- Adam Podgorecki, a renowned Polish sociologist, has analyzed a number of
duct, that is, conduct at variance with the postulates of social order." distinct national styles in social-science work related to law. Scandinavian
Interest in law among sociologists grew rapidly after World War II, which scholars have emphasized the social meaning of justice. In particular, they have
ended in 1945. In the United States, some sociologists became interested in law investigated knowledge of the law and attitudes toward it. Italian social scientists
almost by accident. As they investigated certain problems, such as race rela- have been concerned with empirical investigations of judges and the process of
tions, they found law to be relevant. Others became radicalized in the mid- and judging. With the end of the Soviet Union, the legitimacy of its law also died.
late-1960s, during the period of the Vietnam War, and their work began to Russian social scientists, encouraged and supported by the reelection of President
emphasize social conflict and the functions of stratification in society. It became Vladimir Putin, are looking into the processes involved in the transformation
imperative for sociologists of the left to dwell on the gap between promise and of socialist legal systems into more Western, market-oriented ones with studies
performance in the legal system. By the same token, those sociologists defending on privatization, joint ventures, leadership successions and the reintroduction
the establishment were anxious to show that the law dealt with social conflict in of juries in criminal cases. German sociologists are studying the socio-legal
a legitimate fashion. At the same time, sociological interest in law was further implications of reunification, changing demographic composition of the popu-
enhanced by the infusion of public funds into research evaluating a variety of lation due to immigration, the assimilation of large numbers of guest workers,
law-based programs designed to address social problems in the United States and the ways of coping with economic contrast and rising nationalism. Addi-
(Ross, 1989:37). These developments provided the necessary impetus for the tionally, there is a flourishing interest in law and society in Japan, initiated by
field of law and society, which got its start in the mid-1960s with the formation of the many problems Japan experienced with the reception of European law and
the Law and Society Association and the inauguration of its official journal, the more recently by the growing anti-Japan sentiments brought about by percep-
Law & Society Review (Abel, 1995:9; Law & Society Review, 1995:5), and the 2007 tions of "unfair" trade practices and internal pressures to modernize the quasi-
publication of the monumental three-volume set of the Encyclopedia of Law feudal criminal justice system (The Economist, 2004; West, 2005). Both nationally
and Society ( Clark, 2007). There is also a growing number of professional journals and internationally, a number of organizations have been formed and centers
providing scholarly outlets for the mounting interest in law and society topics have been established to study the multifaceted interaction between law and
such as Law & Social Inquiry, Law and Anthropology Journal of Law and Society, society (Rehbinder, 1975:13-48). More recently, the International Institute for
Journal of Empirical Legal Studies, and European Law Journal. the Sociology of Law (IISL) was founded in 1988 by the International Socio-
These efforts are further sustained by the aftermath of the tragic events logical Association (Research Committee on Sociology of Law) and the Basque
such as, for example, those following the World Trade Center and Pentagon ter- government. The Institute is located in the Old University of Onati (Spain),
rorist attacks on September 11, 2001; the March 11, 2004, simultaneous bombing and by the mid-1990s it had a full-fledged masters program ( at a very reasonable
of several railroad stations in Madrid, Spain, resulting in almost 200 deaths and tuition rate of 1900 euros for the academic year 2006-2007 with scholarship
over 1500 injuries; and the July 11, 2006, bombing of seven rail passenger cars opportunities) and an International Doctorate in Sociology of Law program.
during the rush hour in Mumbai (formerly known as Bombay), India, causing By 2007, the success and reputation of the Institute created a long list of appli-
some 200 deaths and over 700 injuries. cants anxious to gain admission. The Institute also has a sought-after program
Nowadays, a number of universities offer undergraduate, graduate, or for a cadre of international visiting scholars including the members of the
joint degree programs in law and society, such as the School of Justice Studies International Court of Justice in The Hague and international law experts from
at Arizona State University; the Jurisprudence and Social Policy Program at the various United Nations organizations such as UNESCO (United Nations
University of California, Berkeley; the Department of Law, Jurisprudence and Scientific, Educational and Cultural Organization).
Social Thought at Amherst College; University of Wisconsin; and University of Undoubtedly, not many sociologists concerned with the study of law and
Massachusetts, Amherst. Other law schools emphasize international relations, society would question Eugen Ehrlich's oft-quoted dictum that the "center
with pronounced social-science components, along with their programs. Some, of gravity of legal development lies not in legislation, nor in juristic science, nor
such as the Harvard Law School, are offering joint degree programs with over- in judicial decision, but in society itself" (Ehrlich, 1975: Foreword). I share
seas universities (Gilgoff, 2004). There are also a number of major long-standing I. D. Willock's (1974:7) position that "in so far as jurisprudence seeks to give law
 a6 CHAPTER 1 Introduction CHAPTER 1 Introduction 7a

a location in the whole span of human affairs it is from sociology that it stands tell people how they should behave and what will happen to them if they do not.
to gain most." Sociological knowledge, perspectives, theories, and methods are In sociology, the emphasis is on description, on understanding the reasons why
not only useful but also axiomatic for the understanding and possible improve- certain groups of people act in certain ways in specific situations. The law reacts
ment of law and the legal system in society. to problems most of the time; the issues and conflicts are brought to its attention
But the study of law by sociologists is somewhat hampered by difficulties by clients outside the legal system. In sociology, issues, concerns, and problems
of interaction between sociologists and lawyers. Language-based approaches are generated within the discipline on the basis of what is considered intellectu-
to issues are different in the two professions (Conley and O'Barr, 2005) and as ally challenging, timely, or of interest to funding agencies.
Edwin M. Schur correctly notes, "In a sense ... lawyers and sociologists 'don't These differences in professional cultures are, to a great extent, due to the
talk the same language,' and this lack of communication undoubtedly breeds different methods and concepts lawyers and sociologists and other social scien-
uncertainty in both professions concerning any involvement in the other's tists (see, for example, Mattei, 1997; Samuels, 2006) use in searching for "truth."
domain, much less any cooperative interdisciplinary endeavors." He goes on to Legal thinking, as Vilhelm Aubert (1973:50-53) already explained in some detail
say: "Sociologists and lawyers are engaged in quite different sorts of enter- decades ago, is different from scientific thinking for the following reasons:
prises,'' and notes that "the lawyer's characteristic need to make decisions, here Law seems to be more inclined toward the particular than toward the
and now, may render him impatient with the sociologist's apparently unlimited general (for example, what happened in a specific case).
willingness to suspend final judgment on the issue ... " (Schur, 1968:8). The
1. Law, unlike the physical and social sciences, does not endeavor to
complexity of legal terminology further impedes interaction. There is a special
establish dramatic connections between means and ends (for example,
rhetoric of law (Garner, 2001; Sarat and Kearns, 1994) and it has its own vocab-
the impact the verdict has on the defendant's future conduct).
ulary; terms like subrogation and replivin and respondeat superior and chattel
2. Truth for the law is normative and nonprobabilistic; either something
lien abound. Lawyers use a special arcane writing style, at times replete with
has happened or it has not. A law is either valid or invalid (for example,
multiple redundancies such as made and entered into, cease and desist, null and
did a person break a law or not).
void, in full force and effect, and give, devise, and bequeath and they occasion- 3. Law is primarily past and present oriented and is rarely concerned with
ally sue each other over the placement of a comma (Robertson and Grosariol,
future events (for example, what happens to the criminal in prison).
2006). Not surprisingly, "Between specialized vocabulary and arcane style, the
4. Legal consequences may be valid even if they do not occur; that is,
very language of the law defies lay understanding" (Chambliss and Seidman,
their formal validity does not inevitably depend on compliance (for
1982:119). There is a move underway to combat such legalese, and lawyers and example, the duty to fulfill a contract; if it is not fulfilled, it does not
law schools are beginning to learn that good English makes sense (Gest, 1995).
falsify the law in question).
The "linguistically challenged profession" (Glaberson, 2001) is further beset by
5. A legal decision is an either-or, all-or-nothing process with little room
difficulties involving the complexities of legal writing [ and the need to translate
for a compromise solution (for example, litigant either wins or loses a
it into plain English (Garner, 2001)] and the forms of irritating documentation
case).
called sentence citations, [ see, for example, Bush v. Gore, 531 U.S. 98, 121 S. Ct.
525,148 L. Ed. 2d 388 (2000)], which tend to appear in mid-sentence. Not sur- These generalizations, of course, have their limitations. They simply high-
prisingly, there is no move underway to clean up legal documents by putting light the fact that law is an authoritative and reactive problem-solving system
citations at the bottom of the page. Legal citations can include references to the that is geared to specific social needs. Because the emphasis in law is on cer-
date, volume, and page number of legal publications in which precedents can tainty (or predictability or finality), its instrumentation often requires the
be found. adoption of simplified assumptions about the world. The lawyer generally sees
Problems of interaction are also brought about and reinforced by the dif- the law as an instrument to be wielded, and he or she is more often preoccupied
ferences in professional cultures (Davis, 1962). Lawyers are advocates; they are with the practice and pontification of the law than with its consideration as an
concerned with the identification and resolution of the problems of their clients. object of scholarly inquiry.
Sociologists consider all evidence on a proposition and approach a problem Possibly the question most frequently asked of any sociologist interested
with an open mind. Lawyers are guided to a great extent by precedents, and past in law is, "What are you doing studying law?" Unlike the lawyer, the sociologist
decisions control current cases. In contrast, sociologists emphasize creativity, needs to "justify" any research in the legal arena and often envies colleagues in
theoretical imagination, and research ingenuity. Law represents specific individ- law schools who can carry out such work without having to reiterate its rele-
uals and organizations within the legal system (Walker and Wrightsman, vance or their own competence. Yet, this need for justification is not an unmixed
1991:179). The pronouncements of law are predominantly prescriptive: They evil, because it serves to remind the sociologist that he or she is not a lawyer but
 •8 CHAPTER 1 Introduction CHAPTER 1 Introduction 9•
a professional with special interests. Like the lawyer, the sociologist may be con- enforced by the courts if its authority is challenged." Holmes (1897:461)
cerned with the understanding, the prediction, and perhaps even the develop- declares that "the prophecies of what the courts will do in fact, and nothing
ment of law. Obviously, the sociologist and the lawyer lack a shared experience, more pretentious, are what I mean by the law." For Holmes, judges make the
a common quest. At the same time, increasingly, sociologists and lawyers work law on the basis of past experience. In both of these definitions, the courts
together on problems of mutual interests (such as research on jury selection, play an important role. These are pragmatic approaches to law as revealed by
conflict resolution, same-sex marriage, immigration, delinquency, crime, demo- court-rendered decisions.Although implicit in these definitions is the notion of
graphic concerns, consumer problems, and so on) and are beginning to see the courts being backed by the authoritative force of a political state, these defini-
reciprocal benefits of such endeavors. Sociologists also recognize that their tions of law seem to have a temporal character: What is the law at this time?
research has to be adapted to the practical and pecuniary concerns of lawyers if From a sociological perspective, one of the most influential definitions of
it is to capture their interest. In view of the vocational orientation of law schools law is that of Max Weber. Starting with the idea of an order characterized by
and the preoccupation of lawyers with pragmatic legal doctrine, it is unlikely legitimacy, he suggests: "An order will be called law if it is externally guaranteed
that research aimed at theory building will attract or retain the attention of by the probability that coercion (physical or psychological), to bring about con-
most law students and professors (Posner, 1996:327-330). formity or avenge violation, will be applied by a staff of people holding them-
selves especially ready for that purpose" (Weber, 1954:5). Weber argues that
DEFINITIONS OF LAW law has three basic features that, taken together, distinguish it from other nor-
mative orders, such as custom or convention. First, pressures to comply with the
In ordinary parlance, the term "law" conjures up a variety of images (see, for law must come externally in the form of actions or threats of action by others,
example, Clark, 2007). For some, law may mean getting a speeding ticket, not regardless of whether a person wants to obey the law or does so out of habit.
being able to get a beer legally if under age, or complaining about the local Second, these external actions or threats always involve coercion or force.
"pooper-scooper" ordinance. For others, law is paying income tax, signing a Third, those who instrument the coercive threats are individuals whose official
prenuptial agreement, being evicted, or going to prison for growing marijuana. role is to enforce the law. Weber refers to "state" law when the persons who are
For still others, law is concerned with what legislators enact or judges declare. charged to enforce the law are part of an agency of political authority.
Law means all the above and more. Even among scholars, there is no agree- Weber contends that customs and convention can be distinguished from
ment on the term. The purpose here is to introduce some of the classic and con- law because they do not entail one or more of these features. Customs are rules
temporary definitions of law to illustrate the diverse ways of defining it. of conduct in defined situations that are of relatively long duration and are
The question "What is law?" still haunts legal thought at the closing of the generally observed without deliberation and "without thinking." Customary
first decade of 2000, and probably more scholarship has gone into defining and rules of conduct are called usages, and there is no sense of duty or obligation to
explaining the concept of law than into any other concept still in use in sociology follow them. Conventions, by contrast, are rules for conduct and they involve a
and jurisprudence. Comprehensive reviews of the literature by Ronald L. Akers sense of duty and obligation. Pressures, which usually include expressions of
and Richard Hawkins (1975:5-15), Lisa J. McIntyre (1994:10-29), and Robert M. disapproval, are exerted on individuals who do not conform to conventions.
Rich (1977) indicate that there are almost as many definitions of law as there are Weber (1954:27) points out that unlike law, a conventional order "lacks spe-
theorists. E. Adamson Hoebel (1954:18) comments that "to seek a definition of cialized personnel for the instrumentation of coercive power."
the legal is like the quest for the Holy Grail." He cites Max Radin's warning: Although a number of scholars accept the essentials of Weber's definition
"Those of us who have learned humility have given over the attempt to define of law, they question two important points. First, some contend that Weber places
law." In spite of these warnings, law can be defined. In any definition of law, too much emphasis on coercion and ignores other considerations that may
however, we must keep Julius Stone's (1964:177) admonition in mind that induce individuals to obey the law. For example, Philip Selznick (1968, 1969:4-8)
"'law' is necessarily an abstract term, and the definer is free to choose a level of argues that the authoritative nature of legal rules brings about a special kind
abstraction; but by the same token, in these as in other choices, the choice must of obligation that is not dependent on the use or threat of coercion or force.
be such as to make sense and be significant in terms of the experience and pres- Many laws are obeyed because people feel it is their duty to obey. The second
ent interest of those who are addressed." point concerns Weber's use of a special staff. Some scholars claim that Weber's
In our illustrative review of the diverse definitions of law, let us first turn definition limits the use of the term law in cross-cultural and historical contexts.
to two great American jurists, Benjamin Nathan Cardozo and Oliver Wendell They argue that the word staff implies an organized administrative apparatus that
Holmes, Jr., Cardozo (1924:52) defines law as "a principle or rule of conduct so may not exist in certain illiterate societies. E. Adamson Hoebel (1954:28), for
established as to justify a prediction with reasonable certainty that it will be instance, proposes a less restrictive term by referring to individuals possessing
• 10 CHAPTER 1 Introduction CHAPTER 1 Introduction 11 •

"a socially recognized privilege," and Ronald L. Akers (1965:306) suggests a Henry M. Hart (1958:403) points out, law can be analyzed sociologically as a
"socially authorized third party." Of course, in modern societies, law provides "method" of doing something. In this context, law can be studied as a social
for a specific administrative apparatus. Still, these suggestions should be kept process, instrumented by individuals during social interaction. Sociologically,
in mind while studying the historical developments of law or primitive soci- law consists of the behaviors, situations, and conditions for making, interpreting,
eties (see, for example, Mundy, 2002; Pospisil, 1971, 1978; Pottage and Mundy, and applying legal rules that are backed by the state's legitimate coercive appa-
2004). ratus for enforcement.
From a different perspective, Donald Black (1976:2, 1989:121, 1998:1-26,
2002:118), a leading figure in law and society studies, contends that law is TYPES OF LAW
essentially governmental social control. In this sense, law is "the normative life
of a state and its citizens, such as legislation, litigation, and adjudication" The content of law may be categorized as substantive or procedural. Substantive
(Black, 1976:2). He maintains that several styles of law may be observed in a laws consist of rights, duties, and prohibitions administered by courts-which
society, each corresponding to a style of social control. Four styles of social behaviors are to be allowed and which are prohibited (such as prohibition
control are represented in law: penal, compensatory, therapeutic, and concilia- against murder or the sale of narcotics). Procedural laws are rules concerning
tory. In the penal style, the deviant is viewed as a violator of a prohibition and just how substantive laws are to be administered, enforced, changed, and used
an offender to be subjected to condemnation and punishment (for example, a by players in the legal system (such as filing charges, selecting a jury, presenting
drug pusher). In the compensatory style, a person is considered to have a con- evidence in court, or drawing up a will).
tractual obligation and, therefore, owes the victim restitution (for example, a At times a distinction is made between public law and private law
debtor failing to pay the creditor). Both of these styles are accusatory where (Johnson, 1977:59-60). Public law is concerned with the structure of government,
there is a complainant and a defendant, a winner and a loser. According to the the duties and powers of officials, and the relationship between the individual
therapeutic style, the deviant's conduct is defined as abnormal; the person and the state (Tomkins, 2003), "It includes such subjects as constitutional law,
needs help, such as treatment by a psychiatrist. In the conciliatory style, deviant administrative law, regulation of public utilities, criminal law and procedure, and
behavior represents one side of a social conflict in need of resolution without law relating to the proprietary powers of the state and its political subdivisions"
consideration as to who is right or who is wrong (for example, marital dis- (Davis, 1962:51). Private law is concerned with both substantive and procedural
putes). These last two styles are remedial, designed to help people in trouble rules governing relationships between individuals (the law of torts or private
and ameliorate a bad social situation. Elements of two or more of these styles injuries, contracts, property, wills, inheritance, marriage, divorce, adoption, and
may appear in a particular instance, for example, when a drug addict is con- the like).
victed of possession and is granted probation contingent upon his or her par- A more familiar distinction is between civil law and criminal law. As noted,
ticipation in some kind of therapy program. civil law, as private law, consists of a body of rules and procedures intended
The abovementioned definitions illustrate some of the alternative ways to govern the conduct of individuals in their relationships with others. Violations
of looking at law. It is the law's specificity in substance, its universality of appli- of civil statutes, called torts, are private wrongs for which the injured individual
cability, and the formality of its enactment and enforcement that set it apart may seek redress in the courts for the harm he or she experienced. In most cases,
from other devices for social control. Implicit in these definitions of law is the some form of payment is required from the offender to compensate for the
notion that law can be analytically separated from other normative systems in injury he or she has caused. Similarly, one company may be required to pay
societies with developed political institutions and specialized lawmaking and another a sum of money for failing to fulfill the terms of a business contract.
law-enforcement agencies. The paramount function of law is to regulate and The complainant firm is thus "compensated" for the loss it may have suffered
constrain the behavior of individuals in their relationships with one another. as a result of the other company's neglect or incompetence. Criminal law is
Ideally, law is to be employed only when other formal and informal methods of concerned with the definition of crime and the prosecution and penal treatment
social control fail to operate or are inadequate for the job. Finally, law can be of offenders. Although a criminal act may cause harm to some individual, crimes
distinguished from other forms of social control primarily in that it is a formal are regarded as offenses against the state or the people. A crime is a public,
system embodying explicit rules of conduct, the planned use of sanctions to as opposed to an individual or private, wrong. It is the state, not the harmed
ensure compliance with the rules, and a group of authorized officials desig- individual, that takes action against the offender. Furthermore, the action taken
nated to interpret the rules and apply sanctions to violators (Davis, 1962:39-63). by the state differs from that taken by the plaintiff in a civil case. For example, if
From a sociological perspective, the rules of law are simply a guide for action. the case involves a tort, or civil injury, compensation equivalent to the harm
Without interpretation and enforcement, law would remain meaningless. As caused is levied. In the case of crime, some form of punishment is administered.
• 12 CHAPTER 1 Introduction CHAPTER 1 Introduction 13 •

Henry M. Hart suggests that a crime" ... is not simply antisocial conduct which some other parts of the world to which Islamic religion has spread. Socialist
public officers are given a responsibility to suppress. It is not simply any conduct legal systems prevail in the People's Republic of China, Vietnam, Cuba, and
to which a legislature chooses to attach a 'criminal' penalty. It is a conduct North Korea. Remnants of socialist systems are still found in the former Soviet
which, if duly shown to have taken place, will incur a formal and solemn pro- Union and Eastern European countries.
nouncement of the moral condemnation of the community" (1958:404). In
Hart's view, both the condemnation and the consequences that follow may be Romano-Germanic System
regarded as constituting the punishment. Occasionally, a criminal action may be The Romano-Germanic, or civil, law refers to legal science that has developed
followed up by civil a suit such as in a rape case where the victim may seek on the basis of Roman ius civile or civil law (Abel and Lewis, 1988, Vol. 2;
financial compensation in addition to criminal sanctions. Mousourakis, 2007). The foundation of this system is the compilation of rules
A distinction can also be made between civil law and common law. In this made in the sixth century A.D. under the Roman emperor Justinian. They are
context, civil law refers to legal systems whose development was greatly influ- contained in the Code of Justinian and have evolved essentially as private law,
enced by Roman law, a collection of codes compiled in the Corpus Juris Civilis as means of regulating private relationships between individuals (see, for
(Code Civil). Civil-law systems are codified systems, and the basic law is found example, Mears, 2004). After the fall of the Roman Empire, the Code of Justin-
in codes. These are statutes that are enacted by national parliaments. France is ian competed with the customary law of the Germanic tribes that had invaded
an example of a civil-law system. The civil code of France, which first appeared Europe. The code was reintroduced in law school curricula between A.D. 1100
in 1804, is called the Code Napoleon and embodies the civil law of the country. and 1200 in northern Europe, then spread to other parts of the continent.
By contrast, common law resisted codification. Law is not based on acts of par- Roman law thus coexisted with the local systems throughout Europe up to the
liament but on case law, which relies on precedents set by judges to decide a seventeenth century. In the nineteenth century, the Napoleonic codes, and sub-
case (Friedman, 1998, 2002). Thus, it is "judge-made" law as distinguished from sequently the code of the new German Empire of 1900 and the Swiss code of
legislation or "enacted law." Law in the United States may be further divided 1907, are examples of the institutionalization of this legal system.
into the following branches: constitutional law, case law, statutory law, execu- Codified systems are basic laws that are set out in codes. A code is simply a
tive orders, and administrative law. Constitutional law is a branch of public law. body of laws (see, for example, Kevelson, 1994; Mears, 2004). These statutes are
It determines the political organization of the state and its powers while also enacted by national parliaments that arrange entire fields of law in an orderly,
setting certain substantive and procedural limitations on the exercise of govern- comprehensive, cumulative, and logical way. Today, most European countries
ing power. Constitutional law consists of the application of fundamental prin- have national codes based on a blend of customary and Roman law that makes
ciples of law based on that document, as interpreted by the Supreme Court. the resulting systems members of the Romano-Germanic legal tradition.
Case law is enacted by judges in cases that are decided in the appellate courts.
Statutory law is legislated law-law made by legislatures. Executive orders are Common-Law System
regulations issued by the executive branch of the government at the federal and
Common law is characteristic of the English system, which developed after the
state levels. Finally, administrative law is a body of law created by adminis-
Norman Conquest in 1066. The law of England as well as those laws modeled on
trative agencies in the form of regulations, orders, and decisions. These various
English law (such as the laws of the United States, Canada, Ireland, and India)
categories of laws are discussed and illustrated later in the text.
resisted codification. Law is not based on acts of parliament but on case law,
which relies on precedents set by judges in deciding a case (Friedman, 1998,
MAJOR LEGAL SYSTEMS 2002). Thus, it is "judge-made" law as distinguished from legislation or "enacted"
(statutory) law. The doctrine of "precedent" is strictly a common-law practice.
In addition to the types of law, there is a large variety of legal systems (see, for
The divisions of the common law, its concepts, substance, structure, legal culture,
example, Clark, 2007; Johansen, 1998; Kritzer, 2002). The dominant legal sys-
vocabulary, and the methods of the common-law lawyers and judges are very dif-
tems that exist in various forms throughout the world are the Romano-
ferent, as will be demonstrated throughout the book, from those of the Romano-
Germanic (civil law), common law, socialist law, and Islamic law (David and
Germanic, or civil, law systems (see,for example, Abel and Lewis, 1988, Vol. l).
Brierley, 1985). The Romano-Germanic systems predominate in Europe, in
most of the former colonies of France, Germany, Italy, Spain, Portugal, and
Belgium, and in countries that have westernized their legal systems in the nine- Socialist Legal System
teenth and twentieth centuries. Common-law systems are predominant in Even though there are multiple versions of the socialist legal system, its origins
English-speaking countries. Islamic systems are found in the Middle East and can be traced back to the 1917 Bolshevik Revolution, which gave birth to the
• 14 CHAPTER 1 Introduction CHAPTER 1 Introduction 15 •

Union of Soviet Socialist Republics. The objectives of classical socialist law are Hesli, 2007; Milor, 1994; Priban, Roberts, and Young, 2003). Although the prob-
threefold. First, law must provide for national security. Ideally, the power of the lems involved in the transition vary from country to country according to
state must be consolidated and increased to prevent attacks on the socialist unique historical and political circumstances, all the states face common con-
state and to assure peaceful coexistence among nations. Second, law has the cerns, such as establishment of a new political ideology, creation of new legal
economic task of developing production and distribution of goods on the basis rights, imposition of sanctions on former elites, and introduction of new forms
of socialist principles so that everyone will be provided for "according to his of legitimization. Among the practical problems are the creation of new prop-
needs." The third goal is that of education: to overcome selfish and antisocial erty rights; the attainment of consensus in lawmaking; the formulation and
tendencies that were brought about by a heritage of centuries of poor economic instrumentation of new laws on such matters as privatization, joint ventures,
organization. restitution for and rehabilitation of victims of the overturned regime; the revi-
The source of socialist law is legislation, which is an expression of popu- sion of criminal law; the rise of nationalistic, antiforeign, and anti-Semitic senti-
lar will as perceived and interpreted by the Communist party. The role of the ments; and multi party electoral behavior (Oleinik, 2003). There is also a whole
court is simply to apply the law, not to create or interpret it. Even today, for slate of legal issues previously denied public attention by socialist law, such as
example, judges in China are not required to have any legal training, and few prostitution, drug abuse, unemployment, and economic shortages. There are
do, and they are mostly in large urban areas. Most hold their positions because also significant structural changes taking place that are composed of newly
the have close connections with local governments, who are eager for quick democratic parliamentary lawmaking, conversion of the judicial system, and
convictions (Diamant, Lubman, and O'Brien, 2005; Oleinik, 2003; Smith, 2001). the awakening of alternative political parties. There are, finally, concerns with
Socialist law rejects the idea of separation of powers. The central notion the development of new law school curricula, selection of personnel, and
of socialist law is the concept of ownership. Private ownership of goods has replacement or resocialization of former members of the Communist party
been renamed personal ownership, which cannot be used as a means of pro- still occupying positions of power.
ducing income. It must be used only for the satisfaction of personal needs. So far, the transition has been slow and uneven and its scope has been lim-
Socialist law is unique with respect to socialist ownership, of which there are ited, especially in more remote rural areas. There has been no effort to remove
two versions: collective and state. A typical example of collective ownership is judges who grew up under the old regime. The constitutions have yet to be fully
the kolkhoz, or collective farm, which is based on nationalized land. State own- revised, although there is much talk about them (Klingsberg, 1992). There is a
ership prevails in the industrial sector in the form of installations, equipment, shortage of defense attorneys (Erlanger, 1992). (The paucity of both new judges
buildings, raw materials, and products. In a socialist legal system, the real ques- and defense attorneys can be accounted for, in part, by the relatively small num-
tion of property is not who owns it, but by whom and how such property is ber of law school graduates between 1989 and 2008, many of whom prefer the
exploited (David and Brierley, 1985). Versions of this type of legal system still more lucrative civil-law fields). As of November 1993, Russian law permits
exist in China, Cuba (Zatz, 1994), North Korea, and Vietnam (see, for example, accused criminals to request a trial by jury (Stead, 1994). But the powers of
Calvi and Coleman, 2008). prosecutors have remained largely unreformed since Stalin's day. They remain
The collapse of communism in the Soviet Union and the former Eastern- hugely influential, heavy-handed, unaccountable and corrupt, and prosecutors
bloc countries in 1989, the dissolution of the political and economic institutions can get almost anyone arrested, and usually convicted too, under Russia's vague
that guaranteed the conservation of communist structures, the reintroduction and contradictory laws (Oleinik, 2003; The Economist, 2001).
of a multiparty system, and the general democratization of political life had Perhaps the biggest task that the new lawmakers are facing is the creation
immediate implications for the socialist legal system (Hesli, 2007; Priban, of a legal climate aimed at stimulating foreign investments. Westerners need to
Roberts, and Young, 2003; Tismaneanu, 1992). These developments brought be assured about the safety of their investments, which requires the creation of a
about by transitions require a reconceptualization of the basic notions of prop- legal infrastructure based on democratic principles. New laws are still needed on
erty, authority, legitimacy, and power, and even of the very idea of law (see, for repatriation of profits, property rights, privatization, and the movement of goods.
example, Elster, 1995). But the greatest challenge confronting the post-Communist regimes is
As part of the unexpected and unforeseen dramatic transformations that are crime management (see, for example, Friedman, 2000; Hesli, 2007; Oleinik, 2003;
still taking place in Eastern Europe and the former Soviet Union (Collins, 1995), Perlez, 1995). In Russia and in its former satellites, the Soviet criminal code has
the newly established independent states are experimenting with workable alter- not been significantly altered and it resulted in some unexpected developments.
natives to the socialist rule of law in their attempts to create a climate for a system It is better suited to catch political dissidents than to inspire respect for law
of laws receptive to and facilitative of democratic forms of market economies and order. The laws were aimed at defending the totalitarian state, not the indi-
and civil liberties (Alexander and Skapska, 1994; Bryant and Mokrzycki, 1994; vidual. Presidential decrees and legislative acts have expanded the boundaries of
 a 16 CHAPTER 1 Introduction CHAPTER 1 Introduction 17 a
life-from the right to buy and sell property to the freedom to set up banks and remain chaotic, and the authors of an influential paper in the Brookings Review
private corporations-but the notoriously inefficient courts have no legal basis contend that many Russians still believe that organized crime is beneficial
for interpreting these decrees, much less enforcing them. Consequently, the police for the economy (Gaddy et al., 1995). Business people perceive organized crime
cannot formally tackle organized criminal activity, because under present law as a necessary evil. Although it is hard to acknowledge, the Mafia confers
only individuals can be held criminally culpable. Not surprisingly, the number of certain benefits, The protection rackets offer security against other types of
organized criminal groups in Russia more than quadrupled during the last decade disorganized crime that might affect their clients. Dispute resolution is another
of the twentieth century. (Gaddy et al., 1995; Friedman, 2000; Oleinik, 2003; Mafia service. But perhaps the biggest contribution of the Mafia to orderly mar-
Priban, Roberts, and Young, 2003; Ryan and Rush, 1997). ket transactions is contract enforcement. In today's Russia, contracts have little
Criminal groups now operate in every region and the Maft.ya is ubiqui- force. Failure to adhere to a contract-to pay for goods or services ordered or
tous internationally and nationally (Friedman, 2000; Handelman, 1995). For delivered-exacts virtually no official sanctions. Close to half of the aggregate
example, prostitution networks in western Europe, involving several hundreds volume of accounts receivable in all Russian industry are delinquent. Because
of thousands of women each year from former Soviet-bloc countries mostly the Russian state is unwilling or unable to provide public enforcement of pri-
run by Russians and Ukrainians, generate huge profits. They collect several vate contracts, the interim alternative is to privatize enforcement. It is one of
thousand dollars per woman at each stage of her odyssey (passport, journey, the private solutions business people use when they need protection for their
placement, and so on) and "middlemen" average about $20,000 per person transaction. It also makes a nice argument in support of functionalist theorizing
(Paringaux, 1998:18). in sociology.
In cities across the nation, gangs operate with near impunity, practicing
fraud and extortion, conducting illegal trade, bribing and corrupting officials, and Islamic Legal System
viciously murdering anyone who gets in their way. One base of support for the Islamic law, unlike the previously discussed systems, is not an independent
Russian Army's invasion of Chechnya in late 1994 was competing crime syndi- branch of knowledge. Law is integral to Islamic religion, which defines the
cates elsewhere in Russia (Meier, 1995; Oleinik, 2003). In 1993, Russia saw character of the social order of the faithful who create laws in the name of God
335,000 crimes officially designated as racketeering and nearly 30,000 premedi- (Ahmed, 2001; Al-Azmeh, 1988; Barzilai, 2007; Cooper et al., 2000; Hallaq,
tated murders. In Moscow, the slaughter included over 1400 gangland assassina- 2004; Lippman et al., 1988; Neusner and Sonn, 1999). Islam means submission
tions, with probably thousands more that went unrecorded. By the end of the or surrender and implies that individuals should submit to the will of God.
first quarter of 1994, the toll was running at 84 murders a day, giving Russia the Islamic religion states what Muslims must believe, and includes the Shari'a (the
dubious distinction of surpassing the United States' homicide rate-in fact more way to follow), which specifies the rules for believers based on divine com-
than doubling it. The bulk was contract killings due to conflicts in commercial mand and revelation. Unlike other systems of law based on judicial decisions,
and financial activities (Viviano, 1995).Although contract killings declined in the precedents, and legislation, Islamic law is derived from four principal sources.
early years of this decade, by 2006 they seemed to have made a comeback with a They include the Koran, the word of God as given to the Prophet. This is the
series of high-profile cases (Buckley, 2006). In 2003, the latest year for which fig- principal source of Islamic law. The second source is the Sunna, which are the
ures are available, the murder rate in Moscow was about 18 per 100,000 residents sayings, acts, and allowances of the Prophet as recorded by reliable sources in
(Wines, 2004) as compared to 5 per 100,000 in New York City. the Tradition (Hadith). The third is judicial consensus; like precedent in com-
Almost every small business across Russia pays protection money to some mon law, it is based on historical consensus of qualified legal scholars, and it
gang. Some authors even raise questions such as "Is Sicily the future of Russia?" limits the discretion of the individual judge. Analogical reasoning is the fourth
(Varese, 2001). Vast fortunes in raw materials-from gold to petroleum-are primary source of Islamic law. It is used in circumstances not provided for in
smuggled out through the porous borders in the Baltic states by organized the Koran or other sources. For example, some judges inflict the penalty of
groups who have bribed their way past government officials, and property and stoning for the crime of sodomy, contending that sodomy is similar to the crime
favors are peddled by ministries and municipal governments. Official corruption of adultery and thus should be punished by the same penalty the Koran indi-
is rampant and along with tax instability, licensing confusion, and disregard for cates for adultery. (For example, in Saudi Arabia, sodomy remains punishable
intellectual property rights they serve as disincentives to the kind of private by death and the kingdom maintains a long list of prohibitions-against smok-
Western investment Russia needs to create jobs and a functioning market econ- ing, drinking or going to discos, and socializing between men and women
omy (Erlanger, 1995). which, interestingly, "has made it easier to be gay than straight in a society that
Despite attempts to establish a "dictatorship of law" in the new Russia forbids all sexual activity outside of marriage" (Wall Street Journal, 2007). In
(Buckley, 2006; Priban, Roberts, and Young, 2003; Wines, 2001) the conditions the same vein, a female would get half the compensation a male would receive
 • 18 CHAPTER 1 Introduction CHAPTER 1 Introduction 19 •

for being the victim of the same crime, because a male is entitled to an inheri- police are hunting streets and parks for immodestly dressed women and wildly
tance twice that of a female. In addition to these principal sources, various sup- coiffed men (Higgins, 2007).
plementary sources, such as custom, judge's preference, and the requirements Although such practices are susceptible to interpretations that can and do
of public interest, are generally followed. create conflicts between religious doctrine and human rights (see, for example,
Shari'a legal precepts can be categorized into five areas: acts commanded, Mayer, 2007; Saeed, 2004), they must be examined within the philosophy of
recommended, reprobated, forbidden, and left legally indifferent. Islamic law Islam and in the spirit of true theoretical inquiry for justification-or even
mandates rules of behavior in the areas of social conduct, family relations, understanding for Islamic justice is based on religious and philosophical prin-
inheritance, and religious ritual, and defines punishments for heinous crimes ciples that are quite alien to most Western readers (Souryal and Potts, 1994).
including adultery, false accusation of adultery, intoxication, theft, and robbery. Punishments and rules not defined by historical sources of Shari'a are left to
For example, in the case of adultery, the proof of the offense requires four wit- decision by contemporary government regulations and Islamic judges. This
nesses or confession. (In some instances, such as Islamic decrees introduced in practice permitted an evolution of Shari'a law to reflect changing social, polit-
Pakistan in 1979 and collectively known as the Hadood Ordinance, there is a ical, and economic conditions.
controversial clause stating that to prove rape, a woman must have at least four It is important to remember that the sanctions attached to the violation
male witnesses. If the woman fails to provide proof, she herself faces the charge of Islamic law are religious rather than civil. Commercial dealings, for example,
of adultery, and in early 2006, there were close to 5000 women in Pakistan between Muslims and Westerners are covered by governmental rules compa-
awaiting trial for Hadood violations (Masood, 2006)). If a married person is rable to administrative law in the United States. The fundamental principle of
found guilty, he or she is stoned to death. Stones are first thrown by witnesses, Islam is that of an essentially theocratic society, and Islamic law can be under-
followed by the judge, and then by the rest of the community. For a woman, stood only in the context of some minimum knowledge of Islamic religion and
a grave is dug to receive the body. The punishment for an unmarried person is civilization. Thus, care should be exercised in discussing or analyzing compo-
100 lashes (Lippman et al., 1988:42). nents of Islamic law out of context and in isolation.
For theft, the penalty of hand amputation is often used. From time to
time, the classic retribution of the notion "eye for an eye" is invoked in a liter-
ary sense. For example, in December, 2003, a judge in Bahawalpur, a city in the FUNCTIONS OF LAW
eastern Pakistani province of Punjab, ruled that a man convicted of attacking
and blinding his fiancée with acid be blinded with acid himself. "This is an Why do we need law, and what does it do for society? More specifically, what
Islamic way of doing justice," the judge wrote in his verdict and ordered that a functions does law perform? As with the definition of law, there is no agreement
doctor perform the punishment publicly at a sports stadium (The Seattle Times, among scholars of law and society on the precise functions, nor is there consensus
2003:A8). This severe punishment may be an attempt at deterrence because on their relative weight and importance. A variety of functions are highlighted
violence against women, including acid attacks, is common in Pakistan, particu- in the literature (see, for example, Aubert, 1969:11; Bredemeier, 1962:74; Clark,
larly in rural and deeply conservative tribal regions. 2007; Mermin, 1982:5-10; Nader and Todd, 1978:1; Pollack, 1979:669; Rawls,
Even grooming can be a man's undoing. In Afghanistan, as the formerly 2001; and Sampford, 1989:116--120) depending on the conditions under which
ruling and in 2008 the still lingering Taliban interpreted the Koran, an adult law operates at a particular time and place. The recurrent focal themes include
male was obliged not only to grow a beard but also to leave the hairy under- social control, dispute settlement, and social change. I shall now consider them
brush unmolested by scissors. Patrols from the General Department for the briefly. These functions of the law will be examined in detail in the chapters
Preservation of Virtue and Prevention of Vice, revived as the Vice and Virtues dealing with social control, conflict resolution, and social change.
Ministry, were rather tough on trimmed beards in Kabul and used to snatch
violators from the bazaars and took them to a former maximum security prison Social Control
for ten days of religious instructions (Bearak, 1998). Based on news reports in In a small, traditional, and homogeneous society, behavioral conformity is
2008, this practice is being selectively revived. So is it in Iran where decency ensured by the fact that socializing experiences are very much the same for all
crackdowns are on the increase with new rules governing men's appearance members. Social norms tend to be consistent with each other, there is consen-
with period police raids on barber shops and stores that sell neckties-seen as sus about them, and they are strongly supported by tradition. Social control in
vestiges of the decedent West. The correct fashion on how women should look such a society is primarily dependent upon self-sanctioning. Even on those
is also being enforced by hard liners who try to revive the lost zeal of Iran's occasions when external sanctions are required, they seldom involve formal
1979 revolution. For example, in May 2007, in a one-week period, some 16,000 punishment. Deviants are mostly subjected to informal mechanisms of social
women and about 500 men were "cautioned" about their appearance, and now control, such as gossip, ridicule, or humiliation. Although they exist, banishment,
• 20 CHAPTER 1 Introduction CHAPTER 1 Introduction 21 •

unlike in modern societies (see, for example, Gram, 2006), or forms of corporal making up the business of law .... This doing of something about
punishment are rare. disputes, this doing of it reasonably, is the business of law. (1960:2)
Even in a complex, heterogeneous society, such as the United States,
social control rests largely on the internalization of shared norms. Most indi- By settling disputes through an authoritative allocation of legal rights and obli-
viduals behave in socially acceptable ways, and, as in simpler societies, fear of gations, the law provides an alternative to other methods of dispute resolution.
disapproval from family, friends, and neighbors is usually adequate to keep Increasingly, people in all walks of life let the courts settle matters that were
potential deviants in check. Nevertheless, the great diversity of the population; once resolved by informal and nonlegal mechanisms, such as negotiation,
the lack of direct communication between various segments; the absence of mediation, or forcible self-help measures. It should be noted, however, that law
similar values, attitudes, and standards of conduct; economic inequities; rising deals only with disagreements that have been translated into legal disputes.
expectations; and the competitive struggles between groups with different A legal resolution of conflict does not necessarily result in a reduction of ten-
interests have all led to an increasing need for formal mechanisms of social sion or antagonism between the aggrieved parties. For example, in a case of
control. Formal social control is characterized by "(1) explicit rules of conduct, employment discrimination on the basis of race, the court may focus on one
(2) planned use of sanctions to support the rules, and (3) designated officials to incident in what is a complex and often not very clear-cut series of problems. It
interpret and enforce the rules, and often to make them" (Davis, 1962:43). results in a resolution of a specific legal dispute, but not in the amelioration of
In modern societies, there are many methods of social control, both for- the broader issues that have produced that conflict.
mal and informal. Law is considered one of the forms of formal social control.
In the inimitable words of Roscoe Pound (1941:249): "I think of law as in one Social Change
sense a highly specialized form of social control in developed politically orga- Many scholars contend that a principal function of law in modern society is
nized society-a social control through the systematic and orderly application social engineering. It refers to purposive, planned, and directed social change
of the force of such a society." initiated, guided, and supported by the law. Roscoe Pound captures the essence
Lawrence M. Friedman calls attention to two ways in which law plays an of this function of law as follows:
important role in social control:
For the purpose of understanding the law of today, I am content to think
In the first place, legal institutions are responsible for the making, care of law as a social institution to satisfy social wants-the claims and
and preservation of those rules and norms which define deviant behav- demands involved in the existence of civilized society- by giving effect
ior; they announce (in a penal code, for example) which acts may be to as much as we need with the least sacrifice, so far as such wants may
officially punished and how and which ones may not be punished at all. be satisfied or such claims given effect by an ordering of human conduct
In the second place, the legal system carries out many rules of social through politically organized society. For present purposes I am content
control. Police arrest burglars, prosecutors prosecute them, juries con- to see in legal history the record of a continually wider recognizing and
vict them,judges sentence them, prison guards watch them, and parole satisfying of human wants or claims or desires through social control;
boards release them. (1977:11) a more embracing and more effective securing of social interests; a
continually more complete and effective elimination of waste and pre-
Of course, as we shall see, law does not have a monopoly on formal mecha- cluding of friction in human enjoyment of the goods of existence-in
nisms of social control. Other types of formal mechanisms (such as firing, pro- short, a continually more efficacious social engineering (1959:98-99).
motion, demotion, relocation, compensation, manipulation, and so forth) are
found in industry, academe, government, business, and various private groups In many instances law is considered a "desirable and necessary, if not a highly
(Selznick, 1969). efficient means of inducing change, and that, wherever possible, its institutions
and procedures are preferable to others of which we are aware" (Grossman
Dispute Settlement and Grossman, 1971:2). Although some sociologists disagree with this con-
As Karl N. Llewewllyn so elegantly put it close to half a century ago, tention (for example, Quinney, 2002), law is often used as a method of social
change, a way of bringing about planned social change by the government.
What, then, is this law business about? It is about the fact that our society Social change is a prominent feature of modern welfare states (Yago, 2004).
is honeycombed with disputes. Disputes actual and potential, disputes For example, part of the taxes a government collects goes to the poor in the
to be settled and disputes to be prevented; both appealing to law, both form of cash, food stamps, medical and legal benefits, and housing (Friedman,
• 22 CHAPTER 1 Introduction CHAPTER 1 Introduction 23 •

1998, 2002). I shall return to this social change function of the law in the discus- in principle, may apply to everyone, but legal authority falls unevenly across
sion of law and social change in Chapter 7. social place. A quote from his oft-cited book, Sociological Justice, aptly illus-
trates this point: "The law in its majestic equality ... forbids the rich as well as
the poor from sleeping under bridges, begging in the streets, and stealing bread"
DYSFUNCTIONS OF LAW (1989:72). He argues that social status (regardless of race), the degree of inti-
Although law is an indispensable and ubiquitous institution of social life, it macy (for example, family members versus friends versus strangers), speech,
possesses-like most institutions-certain dysfunctions that may evolve into organization, and a number of other factors all greatly influence the use and
serious operational difficulties if they are not seriously considered (see, for application of law. For example, when a black person is convicted of killing
example, Clark, 2007). These dysfunctions stem in part from the law's conser- a white person in America, the risk of capital punishment far exceeds every
vative tendencies, the rigidity inherent in its formal structure, the restrictive other racial combination. In Ohio, the risk of capital punishment is approxi-
aspects connected with its control functions, and the fact that certain kinds of mately 15 times higher than when a black is convicted of killing another black;
discriminations are inherent in the law itself. in Georgia, over 30 times; in Florida, nearly 40 times; and in Texas, nearly 90
The eminent social scientist Hans Morgenthau (1993:418) suggests that times higher. Similarly, sentencing for negligent homicide with a car is by far the
"a given status quo is stabilized and perpetuated in a legal system" and that the most severe when the victim's status is higher than that of the offender's
courts, being the chief instruments of a legal system, "must act as agents of the (1989:10).
status quo." Although this observation does not consider fully the complex Undoubtedly, the list of dysfunctions of law is incomplete. One may also
interplay between stability and change in the context of law, it still contains an include a variety of procedural inefficiencies, administrative delays, and
important ingredient of truth. By establishing a social policy of a particular archaic legal terminologies. At times, justice is denied and innocent people are
time and place in constitutional and statutory precepts, or by making the convicted (Yant, 1991). There is the cost of justice to the middle class and its
precedents of the past binding, the law exhibits a tendency toward conser- unavailability to the poor, to the consumer, and to minority-group members.
vatism. Once a scheme of rights and duties has been created by a legal system, Questions also can be raised regarding the narrowness of legal education, the
continuous revisions and disruptions of the system are generally avoided in the failure of ethical indoctrination, and the polarization of faculty and students
interests of predictability and continuity. Social changes often precede changes along economic, racial, and gender ways that remained pronounced during the
in the law. In times of crisis, the law can break down, providing an opportunity early years of the first decade of the twenty-first century. One can also talk
for discontinuous and sometimes cataclysmic adjustments. Illustrations of this about laws being out of date, inequitable criminal sentencing, lack of clarity of
include the various first-aid legal measures used during an energy crisis, such as some laws resulting in loopholes and diverse interpretations, and the dominat
the rationing of gasoline purchases. ing use of law by one class against another (Rostow, 1971; Strick, 1977). Finally,
Related to these conservative tendencies of the law is a type of rigidity critics of the law point to the current rage for procedure and to "government
inherent in its normative framework. Because legal rules are couched in gen- by judges" as being particularly dysfunctional in a world as complex as ours
eral, abstract, and universal terms, they sometimes operate as straitjackets in (Crozier, 1984:116-117).
particular situations. An illustration of this is the failure of law to consider cer-
tain extenuating circumstances for a particular illegal act; for example, stealing
because one is hungry or stealing for profit.
PARADIGMS OF SOCIETY
A third dysfunction of the law stems from the restrictive aspects of nor- Deliberations by sociologists on law in society, at the time of writing this book
mative control. Norms are shared convictions about the patterns of behavior in 2007, continue to take place in the context of one of two ideal conceptions
that are appropriate or inappropriate for the members of a group. Norms serve of society: the consensus and the conflict perspectives. The former describes
to combat and forestall anomie (a state of normlessness) and social disorgani- society as a functionally integrated, relatively stable system held together by a
zation. Law can overstep its bounds, and regulation can turn into overregula- basic consensus of values. Social order is considered as more or less perma-
tion, in which situation control may become transformed into repression. For nent, and individuals can best achieve their interests through cooperation.
example, in nineteenth-century America, public administration was sometimes Social conflict is viewed as the needless struggle among individuals and groups
hampered by an overrestrictive use of the law, which tended to paralyze needed who have not yet attained sufficient understanding of their common interests
discretionary exercises in governmental power (Pound, 1914:12-13). and basic interdependence. This perspective stresses the cohesion, solidarity,
Donald Black's (1989) contention that certain kinds of discrimination integration, cooperation, and stability of society, which is seen as united by a
are inherent in law itself can also be construed as a fourth dysfunction. Rules, shared culture and by agreement on its fundamental norms and values.
 a 24 CHAPTER 1 Introduction CHAPTER 1 Introduction 25 •
The conflict perspective, in direct opposition, considers society as consisting group's will on others, but by controlling, reconciling, and mediating the
of individuals and groups characterized by conflict and dissension and held diverse and conflicting interests of individuals and groups within society. In
together by coercion. Order is temporary and unstable because every individual brief, the purpose of law is to control interests and to maintain harmony and
and group strives to maximize its own interests in a world of limited resources and social integration.
goods. Social conflict is considered as intrinsic to the interaction between individ- Talcott Parsons (1962:58) concurs with this view by suggesting that "the
uals and groups. In this perspective, the maintenance of power requires induce- primary function of a legal system is integrity. It serves to mitigate potential ele-
ment and coercion, and law is an instrument of repression perpetuating the ments of conflict and to oil the machinery of social intercourse." Other sociolo-
interests of the powerful at the cost of alternative interests, norms, and values. gists, such as Harry C. Bredemeier (1962), accept this perspective and believe
But, as Ralf Dahrendorf aptly points out, it is impossible to choose empir- that it is necessary for society to supplement informal with formal mechanisms
ically between these two sets of assumptions: "Stability and change, integration for generating and sustaining interpersonal cooperation. Proponents of the
and conflict, function and 'dysfunction,' consensus and constraint are, it would consensus perspective further maintain that law exists to maintain order and
seem, two equally valid aspects of every imaginable society" (1958:174-175). stability. Law is a body of rules enacted by representatives of the people in the
When law in society is viewed in one of these two perspectives, not surpris- interests of the people. Law is essentially a neutral agent, dispensing rewards
ingly, quite disparate conceptions of its basic role emerge (see, for example, and punishments without bias. A fundamental assumption of this perspective is
Dahrendorf, 1990). Let us examine in some detail the role of law in these two that the political system is pluralistic, that society is composed of a number of
perspectives. interest groups of more or less equal power. The laws reflect compromise and
consensus among these various interest groups and the values that are funda-
The Consensus Perspective mental to the social order (Chambliss, 1976:4). This perspective will be alluded
The consensus perspective considers law as a neutral framework for maintaining in various sections in the book.
societal integration. One of the best-known and most influential legal scholars,
Roscoe Pound (1943, 1959), views society as composed of diverse groups whose The Conflict Perspective
interests often conflict with one another but are in basic harmony. He considers In marked contrast to the consensus perspective, the conflict view considers law
certain interests as essential for the well-being of society and maintains that the as a "weapon in social conflict" (Turk, 1978) and an instrument of oppression
reconciliation between the conflicting interests of the diverse groups in society is "employed by the ruling classes for their own benefit" (Chambliss and Seidman,
essential to secure and maintain social order. In his words, law 1982:36). From this perspective, the transformation of society from a small, rela-
tively homogeneous social group to a network of specialized groups is brought
is an attempt to satisfy, to reconcile, to harmonize, to adjust these over- about by the evolution of both distinct sets of interests and differences in real
lapping and often conflicting claims and demands, either through power between groups. When diverse groups come into conflict, they compete to
securing them directly and immediately, or through securing certain have their interests protected and perpetuated through the formalization of
individual interests, or through delimitations or compromises of indi- their interests into law. On the basis of this idea, Richard Quinney argues that
vidual interests, so as to give effect to the greatest total of interests or rather than being a device to control interests, law is an expression of interests,
to the interests that weigh most in our civilization, with the least sacri- an outgrowth of the inherent conflict of interests characteristic of society.
fice of the scheme of the interests as a whole. (Pound, 1943:39) According to Quinney,
In Pound's view, law in a heterogeneous and pluralistic society, such as the Society is characterized by diversity, conflict, coercion, and change,
United States, is best understood as an effort at social compromise with an rather than by consensus and stability. Second, law is a result of the
emphasis on social order and harmony. Pound argues that the historical devel- operation of interests, rather than an instrument that functions outside
opment of law demonstrates a growing recognition and satisfaction of human of particular interests. Though law may control interests, it is in the
wants, claims, and desires through law. Over time, law has concerned itself with first place created by interests of specific persons and groups; it is sel-
an ever wider spectrum of human interests. Law has more and more come to dom the product of the whole society. Law is made by men, represent-
provide for the common good and the satisfaction of social wants (Pound, ing special interests, who have the power to translate their interests
1959:47). He considers law a form of"social change" directed toward achieving into public policy. Unlike the pluralistic conception of politics, law
social harmony. Pound argues that the purpose of law is to maintain and to does not represent a compromise of the diverse interests in society,
ensure those values and needs essential to social order, not by imposing one but supports some interests at the expense of others. (1970:35)
 • 26 CHAPTER 1 Introduction
CHAPTER 1 Introduction 27 •
Proponents of the conflict perspective believe that law is a tool by which the
ruling class exercises its control. Law both protects the property of those in
OPTIONS FOR SOCIOLOGISTS
power and serves to repress political threats to the position of the elite. Quinney As with the approaches to the study of law and society, divergences of opinion
(1975:285) writes that whereas the state, contrary to conventional wisdom, is the also characterize the question of what role sociologists should play in such
instrument of the ruling class, "law is the state's coercive weapon, which main- endeavors. This question, to a substantial degree, polarized the discipline.
tains the social and economic order," and supports some interests at the Some sociologists consider their role primarily to synthesize material and to
expense of others, even when those interests are that of the majority. provide instructional packages for students and interested laymen (see, for
But advocates of this position overstate their case. Not all laws are cre- example, Friedrichs, 2006; Sutton, 2001). Others consider their role as describ-
ated and operated for the benefit of the powerful ruling groups in society. Laws ing and explaining social phenomena objectively (see, for example, Sherwin,
prohibiting murder, robbery, arson, incest, and assault benefit all members of 2006). They are concerned with the understanding of social life and social
society, regardless of their economic position. It is too broad an assumption processes, and they go about their research in an alleged value-neutral and
that powerful groups dictate the content of law and its enforcement for the empirical fashion. They accept as scientific only those theoretical statements
protection of their own interests. As we shall see in Chapter 4, all kinds of whose truth can be proven empirically. They are guided by Max Weber's notion
groups are involved in lawmaking, although the powerful groups do have a of sociology as "a science which seeks to understand social action interpre-
substantial voice in the lawmaking process. tively, and thereby to explain it causally in its course and its effects" (Weber,
These two perspectives of society-consensus and conflict-are ideal 1968:3). They believe that the discovery of causal laws is the ultimate goal of
types (that is, abstract concepts used to describe essential features of a phe- sociology, but the understanding of peoples' motives is central.
nomenon). Considering the operation of legal systems in society, there may be Others, however, go beyond the notion of verstehen (understanding). Soci-
an element of truth in both. Sociologists who are influenced by Karl Marx, ologists who claim to be dialectical and critical in their orientation do not seek
Georg Simmel, Lewis Coser, and Ralf Dahrendorf generally tend to embrace merely to describe and explain social events. They, as scientists, assert their right
the conflict perspective of law in society (Goldstein, 2005). One of their justifi- to criticize. The standards of evaluation upon which their criticism is based, and
cations for taking this theoretical stance is that this approach emphasizes the which these sociologists deduce from the nature of human beings and from con-
role of special-interest groups in society. For example, the power of economic siderations about social development, cannot always be empirically tested. To
and commercial interests to influence legislation is illustrated by William J. them, empirical research is necessary insofar as it provides and explains the data,
Chambliss in his study of vagrancy statutes. He notes that the development of but it is, so to speak, only a first step toward the essential criticism. They believe
vagrancy laws paralleled the need of landowners for cheap labor during the that the task of sociology is to account for human suffering. They aim at demysti-
period in England when the system of serfdom was collapsing. The first of these fying the world: to show people what constrains them and what their routes to
statutes, which came into existence in 1349, threatened criminal punishment for freedom are. Their criticisms are prompted by their belief that the human condi-
those who were able bodied and yet unemployed-a condition that existed tion and the social order have become unbearable. These critics believe that they
when peasants were in the process of moving from the land into the cities. The have a responsibility not only to identify the factors that have precipitated a
vagrancy law served "to force laborers (whether personally free or unfree) to deleterious condition but also to provide, through theoretical and empirical
accept employment at a low wage in order to insure the landowner an adequate efforts, ways to rectifying or redressing it. In the context of law and society stud-
supply of labor at a price he could afford to pay" (Chambliss, 1964:69). Subse- ies, illustrations of such attempts over the past three decades include ( with many
quently, vagrancy statutes were modified to protect the commercial and indus- self-explanatory titles) Jerold S. Auerbach's Unequal Justice (1976); Maureen
trial interests and to ensure safe commercial transportation. In the late Cain and Christine B. Harrington's Lawyers in a Postmodern World: Translation
nineteenth and early twentieth centuries in the United States, vagrancy laws and Transgression (1994); Paul Campos' Jurismania: The Madness of American
were used again to serve the interests of the wealthy. Agricultural states Law (1998); Alan M. Dershowitz's The Abuse Excuse, And Other Cop-outs, Sob
enforced vagrancy laws during harvest time to push the poor into farm work. In Stories, and Evasions of Responsibility (1994 ); Leonard Downie's Justice Denied
periods of economic depression, similar laws were used to keep the unem- (1972); Daniel A. Farber and Suzanna Sherry's Beyond All Reason: The Radical
ployed from entering the state (Chambliss and Seidman, 1982:182). This is just Assault on Truth in American Law (1997); Macklin Fleming's Lawyers, Money,
one illustration to show how law came to reflect the particular interests of those
and Success: The Consequences of Dollar Obsessions (1997); Owen Fiss's The
who have power and influence in society. I shall return to the role of interest
Law As It Could Be (2004); Mary Ann Glendon's A Nation Under Lawyers: How
groups dealing with decision-making processes in the context of lawmaking in
Chapter 4. the Crisis in the Legal Profession is Transforming American Society (1994);
Paul G. Haskell's Why Lawyers Behave As They Do (1998); Philip K. Howard's
• 28 CHAPTER 1 Introduction CHAPTER 1 Introduction 29 •
three critical volumes (arguing over and over that the legal system has substan- power relations, and social processes. Since World War II, there has been a grow-
tially disabled the judgment of the people with responsibility) The Death of ing interest in law among sociologists both in the United States and abroad. Some
Common Sense, How Law is Suffocating America (1994), The Lost Art of Draw- of the examples of the study of law and society include the effectiveness of law;
ing the Line: How Fairness Went Too Far (2001 ), and The Collapse of the Common the impact of law on society; methods of dispute resolution; and research on
Good: How America's Lawsuit Culture Undermines our Freedom (2003); Richard judicial, legislative, and administrative processes. There are still some obstacles to
Quinney's Critique of Legal Order (2002); Gerry Spence's With Justice for None interaction between sociologists and lawyers, however, as a consequence of
(1989); Cameron Stracher's Double Billing: A Young Lawyer's Tale of Greed, differences in terminology, perception of the role of law in society, methodology,
Sex, Lies, and the Pursuit of a Swivel Chair (1998); Anne Strick's Injustice for All and professional culture. Yet, in spite of these difficulties, collaboration is on the
(1977); and Martin Yant's Presumed Guilty: When Innocent People Are Wrongly increase between members of the two professions.
Convicted (1991). Academic debate over a proper definition of law has long preoccupied
Finally, for some sociologists, criticism is interconnected with practice. They scholars in jurisprudence and in the social sciences. In our illustrative defini-
endorse the role of being simultaneously a student and an agent of social action. tions, it was noted that law is a form of social control with explicit sanctions for
They are guided by praxis, or the wedding of theory and action. Because of their noncompliance, and it consists of the behaviors, situations, and conditions for
knowledge of social conditions, they are obligated to take action (see, for creating, interpreting, and applying legal rules.
example, McLaren and Kincheloe, 2007; Schram, 2002). This position is associated The content of law may be considered as substantive or procedural. A
with a Marxist tradition. It is based on the notion that knowledge generated from distinction is made also between public law and private law, as well as between
an analysis of a specific historical situation may be used as an argument for inter- civil law and criminal law. Common law generally refers to judge-made law or
vention, and politically engaged scholarship can contribute to the struggle for case law, as differentiated from statutory or enacted law. The principal legal
social justice. Sociologists in such situations try to demystify, clarify, and show indi- systems in the world today include the Romano-Germanic (civil law),common
viduals the source of their misery and the means of overcoming it. In a Marxian law, socialist law with its current ramifications and problems of transition, and
context, praxis means what people do, as contrasted with what they think. "Praxis Muslim law.
is a revolutionary form of social practice (i.e., it contributes to the humanization Law performs a multitude of functions in society. It is difficult to arrive at
of people by transforming reality from alienation to hopefully better future). The a satisfactory and meaningful list of functions. Still, there seems to be a great
concept is both a means of consciously shaping historical conditions and a stan- deal of emphasis in the literature on the recurrent social control, dispute
dard for evaluating what occurs in any historical order. Marx maintains that a settlement, and social change functions of law. But law, like other social institu-
dialectical relationship exists between theory and praxis" (Reasons and Rich, tions, possesses certain dysfunctions as a result of its conservative tendencies,
1978:431). Thus, sociologists of this perspective actively advocate changes in law the rigidity inherent in its formal structure, the restrictive aspects connected
and legal institutions wherever needed and work for the reformation of both the with its social control functions, and the fact that certain kinds of discrimina-
criminal system and the criminal law when warranted (Krisberg, 1978). tions are inherent in the law itself.
These controversies beset the "proper" role of sociologists in the disci- Sociological analyses of law and society are generally based on two ideal
pline. Based on one's values, ideologies, and conception of sociology, and a views of society-consensus and conflict perspectives. The former considers
plethora of other considerations, one may prefer to be a detached observer of society as a functionally integrated, relatively stable system held together by
social life, a critic of the social order, or an active agent of change. These roles, basic consensus of values. The latter conceives of society as consisting of groups
fortunately, are not mutually exclusive. Depending on the nature of the issue characterized by conflict and dissension on values and held together by some
under consideration, the degree of commitment to and involvement in that members who coerce others. These dialectic models of society are ideal types.
issue, one may freely select among these alternatives. As an intellectual enter- Taken toward the operation of the lawmaking organizations, there may be an
prise, sociology is flexible enough to accommodate these diverse positions. In a element of truth in both. In this context, perhaps an eclectic approach is best.
sense, they contribute to a greater understanding of the complicated interplay In addition to divergences in the way of studying law in society, contro-
between law and society. versies also beset the proper role sociologists should play in the study of law
and society. Some sociologists maintain that their role is to try to understand,
describe, and empirically analyze social phenomena in a more or less value-
SUMMARY free context. Others argue that it is the responsibility of social scientists to crit-
In the discipline of sociology, the study of law touches a variety of well-established icize malfunctioning components of, and processes in, a social system. Still
areas of inquiry. It incorporates values, ideologies, social institutions, norms, others are guided by the notion of praxis; they seek to combine theory with
 • 30 CHAPTER 1 Introduction
CHAPTER 1 Introduction 31 •

of Russian organized crime. It is Peter McLaren, and Joe L. Kincheloe

practice, and their objective is to try to redress deleterious social conditions by
bloodier than Corliano's Godfather, (eds.), Critical Pedagogy: Where A re
means of legal action. Of course, these divergent positions are not mutually We Now? New York: P Lang, 2007.
and reads almost as well.
exclusive, and an awareness of these perspectives on the role of sociologists An interesting collection reconsidering
Bryan A. Garner. Legal Writing in Plain
can contribute to a greater understanding of the intricate interplay between English: A Text with Exercises. Chicago, Marx in post-Marxist times with a
law and society. IL: University of Chicago Press, 2001. review of the educational left after
Just to show that it can be done. September 11 and critical pedagogy
Wael B. Hallaq (ed.), The Formation of as revolutionary praxis.
' SUGGESTED FURTHER READINGS Islamic Law. Burlington, VT: Ashgate, John Monahan, and Laurens Walker,
2004. A collection of fourteen essays Social Science in Law: Cases and
Richard L. Abel (ed.), The Law & Modernity. New York: I. B. Tauris on the rise of Islamic law. Materials. 6th ed. New York:The
Society Reader. New York: New York Publishers, 2000. A compendium of Adamson E. Hoebel, The Law of Foundation Press, Inc., 2006. See
University Press, 1995. A series of articles that provides a background for Primitive Man:A Study in Comparative especially the material on the
often-cited groundbreaking articles the interplay between law and Islamic Legal Dynamics. Cambridge: Harvard jurisprudential origins of social
that have all appeared in the Law & religion. University Press, 1954. A classic and science in law.
Society Review. Roger Cotterrell, Law, Culture and highly influential treatise on the Alfonso Morales (ed.), Renascent
Mary P Baumgartner (ed.), The Social Society: Legal Ideas in the Mirror of cross-cultural study of the dynamics Pragmalism: Studies in Law and Social
Organization of Law. 2nd ed. San Diego, Social Theory. Burlington, VT: Ashgate, of law. A must for students interested Sciences. Burlington, VT: Ashgate. 2003.
CA: Academic Press, 1999. A set of 2006. Through a range of specific in law from an anthropological A series of essays on theory, method,
empirical studies on how social factors studies, the author seeks to integrate perspective. public policy, and empirical scholarship
affect legal behavior. See also Sarat's the sociology of law with other kinds Herbert Jacob, Law and Politics in the by well-known contributors in social
compendium of the same title that of legal analysis and discusses current United States. 2nd ed. Ft. Washington, sciences, law, and philosophy.
covers additional areas on the topic. justice debates in legal theory and PA: HarperCollins College Publishers, George Mousourakis, A Legal History of
James V. Calvi, and Susan Coleman, comparative law. 1995. An informative and clear Rome. New York: Routledge, 2007. The
American Law and Legal Systems. Neil J. Diamant, Stanley B. Lubman, and overview of the components and book traces the historical development
6th ed. Upper Saddle River, NJ: Kevin J. O'Brien (eds.), Engaging the processes of the American legal system. of Roman law from the earliest period
Prentice-Hall, 2008. An informative Law in China: State, Society, and Herbert M. Kritzer (ed.), Legal Systems of Roman history up to and including
up-to-date discussion of law and the Possibilities for Justice. Stanford, of the World:A Political, Social, and Justinian's codification in the sixth
various legal systems. CA: Stanford University Press. 2005. Cultural Encyclopedia. Santa Barbara, century A.D. and its implications on
David S. Clark (ed.), Encyclopedia of A collection of interdisciplinary articles CA: ABC-CLIO, 2002. A comprehensive modern law.
Law and Society. Three volumes. on the various facets of law and legal review of legal systems and an excellent Anton N. Oleinik, Organized Crime,
Thousand Oaks, CA: Sage Publications, system in contemporary China. source of background information on Prison and Post-Soviet Societies.
2007. It is the largest, most current, James E. Duke, Conflict and Power in the topic. Burlington, VT: Ashgate, 2003. A
comprehensive, and international Social Life. Provo, Utah: Brigham Richard Lempert, and Joseph Sanders, fascinating exploration of the social
treatment of the law and society field Young University Press, 1976. A primer An Invitation to Law and Social roots of organized crime and the
with more than 700 biographical entries, on influential and important conflict Science: Desert, Disputes, and concept of Mafia in the former Soviet
which are historical, comparative, theories in sociology. It provides Distribution. New York: Longman, Union. It should be read along with
topical, thematic, and methodological. several ramifications of the conflict 1986. A timeless and influential Red Mafiya: How the Russian Mob has
John M. Conley, and William M. O'Barr, model of society. interdisciplinary analysis of law and Invaded America, cited above.
Just Words: Law, Language, and Power. Lawrence M. Friedman, Total Justice. the legal system written by two law Alain Pottage, and Martha Mundy
2nd ed. Chicago, IL: University of New York: Russell Sage Foundation, professors for students in both law (eds.), Law, Anthropology and the
Chicago Press, 2005. An attempt to 1985. A short, influential and highly and the social sciences. Constitution of the Social: Making
show how the microdynamics of the readable book on law and the legal Lisa J. McIntyre, Law in the Sociological Persons and Things. New York:
legal process and the major questions system in the United States. Enterprise: A Reconstruction. Cambridge University Press, 2004.
of justice can be explored through the Robert I. Friedman. Red Mafiya: How Boulder, CO: Westview Press, 1994. An assortment of cross-cultural
field of socio-linguistics. the Russian Mob has Invaded America. A sophisticated discussion of how law articles on the various facets of the
John Cooper, Ronald L. Nettler, and Boston, MA: Little, Brown and permeates the relationships of modern relationship between law and
Mohamed Mahmoud (eds.), Islam and Company. 2000. An interesting account society. anthropology.
• 32 CHAPTER 1 Introduction CHAPTER 1 Introduction 33 •

Ronald Roesch, Steven D. Dart, and organization of law in society. See also and Police Science, 56 (September): Bryant, Christopher, and Edmund
James R. P Ogloff (eds.), Psychology Baumgartner's book above that covers 301-306. Mokrzycki (eds.).1994. The Great
and the Law: The State of the Discipline. additional areas on the topic. Akers, Ronald L., and Richard Hawkins Transformation? Change and
New York: Plenum Publishing Austin Sarat, and Thomas R. Kearns (eds.).1975. Law and Control in Society. Continuity in East-Central Europe.
Corporation, 1999. A good overview (eds.), Law in the Domains of Culture. Englewood Cliffs, NJ: Prentice-Hall. New York: Routledge.
of major issues and contributions of Ann Arbor, Ml: University of Michigan Alexander, Gregory S., and Grazyna Cain, Maureen, and Christine B.
psychology to the understanding of law, Press. 2000. A collection of essays on Skapska (eds.).1994.A Fourth Way? Harrington (eds.).1994. Lawyers in a
legal systems, and processes. A useful law's relations to culture and on the Privatization, Property, and the Postmodern World: Translation and
supplement to the law and society role of cultural analysis of law. Emergence of New Market Economies. Transgression. New York: New York
literature. A. W. B. Simpson, Invitation to Law. New York: Routledge. University Press.
Norbert Rouland, Legal Anthropology. Oxford: Basil Blackwell, 1988. A Al-Azmeh, Aziz ( ed.). 1988. Islamic Law: Calvi, James V., and Susan Coleman.
Trans. Philippe G. Plane!. Stanford, CA: provocative and mordant examination Social and Historical Contexts. London: 2008. American Law and Legal
Stanford University Press, 1994. An of law and the emergence of the British Routledge. Systems. 6th ed. Upper Saddle River,
excellent discussion of law and legal legal system. Aubert, Vil helm ( ed.). 1969. Sociology NJ: Prentice-Hall.
systems from an anthropological June Starr, and Jane F. Collier (eds.), of Law. "Introduction." Pp. 9-14. Campos, Paul F. 1998. Iurismania: The
perspective. History and Power in the Study of Law: Harmondsworth, England: Penguin. Madness of American Law. New York:
Patrick J. Ryan, and George E. Rush New Directions in Legal Anthropology. 1973. "Researches in the Sociology of Oxford University Press.
(eds.), Understanding Organized Crime Ithaca, NY: Cornell University Press, Law." Pp. 48-62 in Michael Barkun Cardozo, Benjamin Nathan. 1924. The
in a Global Perspective. Thousand 1989. A compendium of 14 articles by ( ed.), Law and the Social System. New Growth of the Law. New Haven, CT:
Oaks, CA: Sage Publications, Inc., 1997. leading anthropologists, sociologists, York: Lieber-Atherton. Yale University Press.
See in particular the articles on and law professors from North Auerbach, Jerold S. 1976. Unequal Justice. Chambliss, William J. 1964. "A
organized crime in Russia and Eastern America and Europe on the various New York: Oxford University Press. Sociological Analysis of the Law of
Europe and the interesting predictions facets of the interplay between law and Barzilai, Gad (ed.). 2007. Law and Vagrancy," Social Problems, 12 (1)
for the twenty-first century-some of society. Religion. Burlington, VT: Ashgate. (Summer): 67-77. 1976. "Functional and
which are way off target but worth Marjorie S. Zatz, Producing Legality: Baumgartner,Mary P (ed.) 1999. The Conflict Theories of Crime: The
glancing at. Law and Socialism in Cuba. New York: Social Organization of Law. 2nd ed. Heritage of Emile Durkheim and Karl
Austin Sa rat ( ed.), Social Organization Rutledge, 1994. A readable exploration San Diego, CA: Academic Press. Marx." Pp. 1-28 in William J. Chambliss
of Law. Los Angeles, CA: Roxbury of the various facets of Cuba's legal Bearak, Barry. 1998. "Afghan Beard and Milton Mankoff ( eds.), Whose
Publishers Co., 2004. A collection of system and a good resource for anyone Code: Like Castro Si, Pavarotti No," Law? What Order? A Conflict Approach
articles by noted scholars on the interested in the comparative study of The New York Times (October 13): A4. to Criminology. New York: John Wiley.
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Law. New York: Academic Press. 1989. Seidman. 1982. Law, Order, and Power.
Sociological Justice. New York: Oxford 2nd ed. Reading, MA: Addison-Wesley.
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