4. Formal Rationality
Most rational and ideal.
Combines high degree of independence of legal institutions with a set of general rules.
Decision makers are monitored by others. (E.g.,Western legal systems)
Emile Durkheim (1858-1917)
Interested in the relationship between types of law and types of society.
All societies exist on the basis of a common moral order, as opposed to a rational social-contract.
Examined the effects of the division of labor on social solidarity. The degree to which people felt an emotional sense of belonging to others and to a group.
Two types of Social Solidarity.
1. Mechanical Solidarity
Relations based on primary group interactions.
Strong emotional bonds.
Simple and limited division of labor.
Strong behavioral norms.
Solidarity grows from sameness; results in collective conscience.
2. Organic Solidarity
Broad division of labor (industrial revolution/factory system).
Characterized by secondary relationships.
Goal oriented interactions; weakened collective conscious.
Grows from diversity/sense of social interdependence.
Organic Solidarity - Social cohesion based upon the dependence individuals in more advanced society have on each other. Common among industrial societies as the division of labor increases. Though individuals perform different tasks and often have different values and interests, the order and very survival of society depends on their reliance on each other to perform their specific task.
What is Justice?
“Justice consists of treating equals equally and unequals unequally according to relevant differences.” (Aristotle)
How a gov. distributes resources to its members.
Rightful/merited/deserved distribution; not need.
Just distribution depends on person’s contributions and value to the community.
Retributive justice is concerned with how a society determines guilt/innocence (procedural retributive justice) and how it determines the proper punishment (substantive procedural justice).
People should get what they rightly deserve according to their behavior.
To be just, society must punish fairly/impartially.
Equals must be punished equally; unequals punished unequally based on relevant differences.
Sentencing guidelines try to ensure just punishments by taking into account relevant differences.
The study of legal decision-making.
Examines how law is practiced rather than how it was written.
Law only becomes “real” in the hands of judges and administrators, thus law can be studied in action
Maintain that law is indeterminate due to differences in legal decision-making.
Legal realists maintain that non-legal reasons such as subjective judgment of fairness on the part of the judge often explain judicial decisions and by doing so can introduce justice (or injustice) into law.
There’s a natural basis for law based on an inner voice yearning for justice.
Differ on the source of that inner voice.
Transcendental Natural Law
There are timeless and universalistic laws that transcend all societies and cultures.
Even when natural law conflicts with human law, natural law should be followed.
It runs downward from “transcendental realm” to humans through jurisprudence and education.
Scientific equivalent of transcendental perspective.
Explains why we have law in general and certain laws specifically in reference to the principles of evolutionary biology.
Humans are biologically predisposed to make certain choices that promoted survival & reproductive success.
Source of Justice
Morality evolved in response to exploitive behaviors.
Moral outrage is the basis for revenge.
Moral outrage plus retaliatory action may be the basis of our sense of justice.
Laws are learned, but are motivated by our innate need for justice.
Raffaele Garofalo and Natural Crime
Sought to describe laws that were universal.
Natural crimes 1)