Sociology of Law
Sociology of Law, Journals, Syllabus, Abstracts, Sociology of Law Bibliography
"It has been said that respect for the law, in a democracy, has derived from the fact that the law expressed the
will of the citizens... But how could this hold good for the minority?"
- Emile Durkheim.
"Equality before the law does not describe the actual operation of any known legal
system, past or present." - Donald Black.
"The notion of social justice per se will not be fixed
or static or certain; rather, it will be a more dynamic expression of events and actors
subject to the social, economic, and political forces that shape ideas and issues
pertaining to law, crime, and deviance." - Arrigo
Studying the legal system and its ramifications, we are
faced with the need to look at the theory and policy which support the present system of
law, but also to "talk and think about how things could be," to understanding
injustices and how we might correct them to produce a better life for all. That may mean
tinkering with the system as it is, and the need for fundamental change to the social
Nlklas Luhmann's sociology of law was a description of the
emergence of legal structures as the development of congruent reactions to the
disappointment of norm expectations. In a society of Individuals faced with an excess of
possibilities, the criteria for the selection of such laws was the enhancement of norm
The Center for the Study of Law and Society -
International Institute for the Sociology of Law.- iisj.es/websiteen.html
The tension in modern law between facts and norms. (Habermas) -
Habermas refers to a duality in modern law. That is the duality of tension between
facts and norms.
The facts: The facts Habermas refers to are the positive (enacted) law that is
reliably enforced. He also calls this "facticity," the social facts defining the
"free choice" within which the individual may determine his actions. Law as
specifically enacted and enforced is empirical. What the law says can be related to
The norms: The norms Habermas refers to are our expectations about the validity and
legitimacy of the law. Validity affects our expectations of fairness, justice, right.
Habermas speaks of legitimacy, following Kant, who based such legitimacy on
morality. Habermas criticizes Kant's dependence on morality because of the pluralism of
the modern democratic society. Habermas claims there is no more overriding morality,
values, sacred belief to provide social integration, because there are other moralities,
values, sacred beliefs in the challenge of pluralism.
The tension: Between the facticity of positive and enforced laws and the validity or
legitimacy of that system of law, there is always tension. The law on which Habermas
depends to create social integration in modern society must be law that we obey because we
believe it right and just for all to obey. The tension is between the claims of legitimacy
and the facts of the enacted and enforced law.
If there are groups or situations for which the law does not produce just results,
then do we lose legitimacy? Do we lose some of our social integration? And at what point
does that become critical to the society?
Habermas' mechanism for resolving the tension, and thus providing legitimacy and social
integration, is the commitment of all individuals in good faith to the discourse of the
community as a whole. Habermas believes that rational argument of citizens can replace the
morality lost to pluralism. We must note, however, that Habermas uses very specific
definitions for these terms. He doesn't mean an ordinary committee debate over coming to
terms on norms. He means the transcendent language of a community willing to negotiate
validity claims and committed to abiding by the community consensus.
The criticism: Once we begin to question the legitimacy of law, assuming that reason will
ultimately suffice for us to decide, how do we draw the limits?
Giddens: "Once we admit the principle of the critical evaluation of beliefs, how can
anything be exempt?" (op. cit.. p.245)
One modern application: In California's recently enacted three strike law we encounter the
legitimacy issues faced by modern democracies. In this proposition, voted into the State
Constitution by popular vote, there is a major penalty enhancement for violent felonies
when the defendant has a prior felony conviction (a strike). For a third conviction, (that
is, for a defendant with two prior strikes) the penalty is 25 years to life.
This law is enacted and enforced. Facticity. But there is tension with the justice and
legitimacy. First, there is much debate over whether prior strikes were violent, over what
should and should not count as a prior strike. Who shall have discretion? The district
attorney? or the judge?
Each must enforce the law.
Each is sworn to seek truth and justice.
One is the trier of fact. (The judge.)
One is an advocate arguing a given side. (The D.A.)
The incidence of crime may carry weight.
In a time of great violence and social concern discretion is likely to be weighted toward
the D.A., the prosecutor.
In a time of relative peace and concern for pluralism, situatedness, discretion is likely
to be weighted toward the judge, for a more neutral hearing.
Books on Sociology of Law
to Law and Society
Primer in the Sociology of Law
Sociology of Law
Classical and Contemporary Perspectives
Movements and Criminal Justice
of Law Georges Gurvitch
A Social Structural Perspective
of the Sociology of Law
Analysis of Penality
Foucault and the Law
Custody and the Politics of Gender
Location in the Sociology of Law
to the Sociology of Law
of Law and Criminology
An Analytical Appraisal
of Law and Society
in Our Lives
Society Origins Interactions and Change
on Law and Democracy
Common Place of Law
of Law and Modernity
and Society Critical Approaches
on the Social Study of Law
Thought in the Western Legal Tradition
Traditional knowledge is not just personal
or spiritual.. Traditional knowledge also has economic value. Certain communities depend
on their traditional knowledge for survival. Therefore traditional knowledge needs to be
Communities are now looking up to intellectual property laws to preserve, protect, and
promote their traditional knowledge. Certain communities have also sought to make
equitable use of their traditional knowledge. Currently, only a few nations offer explicit
sui generis protection for traditional knowledge.