Transcript IV. Theories 2

MAJOR ISSUE:
RELATION OF LAW & MORALITY
Major Authorities:
Lon Fuller (Jurist)
Oliver Wendell Holmes (Jurist)
Robert Cooley Angel (Sociologist)
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Q: WHAT IS LAW? … MORALITY?
• Morality:
– Basic Beliefs of a Society Re Appropriate Behavior
• Law:
– The “Official” Rules of Society Which Are Enforced
• How Do – Should – They Relate to Each Other?
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OLIVER WENDELL HOLMES
• 2 Approaches to Law/Morality Connection:
• POSITIVISM
– Law Is an Entity in Itself
• NATURAL LAW
– Laws ARE – & SHOULD BE – Based on a PREEXISTING Code of Morality
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NATURAL LAW
• Emphasizes Connection Between Law &
Morality
• Based on Pre-Existing Code of Morals
• EX: 10 Commandments … Koran … etc.
• Is This True? How? What Circumstances?
• When Might It NOT Be True?
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POSITIVIST APPROACH TO LAW
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Law Viewed as Entity in Itself –
Apart from Morality
Societies – esp. Modern Societies – Make Laws
… To Ensure Smooth Interpersonal Relations …
Among Persons Who May Not Agree on the
Basic Moral Code
• Is This True? When? What Kinds of Cases?
– (Traffic Laws, Interstate Commerce, Sex, etc.)
• Max Weber’s View of Law in Modern Societies
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Q: WHAT CONSEQUENCES FLOW
FROM THIS CONTROVERSY?
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Does It Matter Which Approach We Take?
What Happens If We Disagree Over the Basis?
What Different Kinds of Laws Would We Have?
EX: Sex … ? Drugs & Alcohol … ?
EX: Murder … ? Stealing … ?
EX: Suits Filed by ACLU, Amer. United for
Separation of Church & State  Force Removal of
Religious Symbols
• EX: Southern Poverty Law Center re Hate Crimes
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LON FULLER:
EXPANDS LAW-MORALITY ISSUE
• Fuller: Former Harvard Law Professor
• 2 Moralities on Which to Base Law:
– “Natural Law”
– Humanity’s “Basest Nature”
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FULLER: MORALITY OF DUTY
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Law Based on "Humanity's Basest Nature"
Assumption: People Will Always Have Nasty Habits!
Law Can't (Shouldn’t) Do Much About That!
Contrast: Some Things People MUST Do (Or Avoid)
Many Issues: Individual Behavior Doesn't Matter for
Society
• Law Should Only Force What’s Absolutely Necessary!
• Law Should NOT Try To Force People To Be Good!
• Fuller Terms "MORALITY OF DUTY” – Clearly Prefers!
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FULLER: MORALITY OF ASPIRATION
• Based Upon Assumption That "Nature's God"
Has Set Immutable Foundations of Morality
• Law Should Be Based on This Foundation.
• Tells Everyone What S/He Ought to Do …
• Law Should Aim To Force Everyone to Do It!
• Fuller Calls It "MORALITY OF ASPIRATION"
E.G., Law Should Encourage (Force?) People to
Aspire to Be The Best They Can Be
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SUMMARY:
Morality of Aspiration vs. Duty
• What Behaviors Would Be Banned Under
Morality of Aspiration?
• … Under Morality of Duty?
• Which Is Preferable?
• Which Would Be More Enforceable?
• Is Morality of Aspiration Possible In a Modern,
Complex, Multicultural Society?
• Cf. Max Weber, Lon Fuller
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APPLYING THE MORALITY OF DUTY:
MORRIS & HAWKINS (c. 1970S)
• The Honest Politician’s Guide to Crime Control
• They Basically Accept Fuller’s Notion of
Morality of Duty (Though Do Not Quote Him)
• … As the Basis for Law
• Book Outlines How to Implement this Idea in
Modern U.S. Society
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MORRIS & HAWKINS (ctd)
• “Every Man Has An Inalienable Right To Go To
Hell In His Own Fashion …” (p. 2)
• Therefore: Remove Non-Essential Acts from
Criminal Law – All “Victimless” Crimes (7):
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Drunkenness (NOT Drunk Driving)
Narcotics & Drug Abuse
– Abortion
Gambling
– Disorderly Conduct
Sex Offenses Between Consenting Adults
Juvenile Status Offenses
• Have a Standing “Law Revision Committee”
– Periodic Corrections to Delete Non-Essential Items
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MORRIS & HAWKINS
CONSEQUENCES
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Think About Consequences of Proposal
Would It Be Accepted? By Whom?
What Would People Disagree About?
Who Would be Likely to Disagree?
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. DISAGREEMENT IN PRINCIPLE WITH
POSITIVIST BASIS
• Some People Likely to Disagree with the
Positivist Principle
• Have a Preference for a Natural Law Approach
• Particularly Among Religious Leaders
• Also Among Very Religious People
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DISAGREEMENT WITH SPECIFIC ISSUES
AS "VICTIMLESS"
• Even People Who Agree In Principle That the
Criminal Law Should Not Include Private
Behavior
• Might NOT Agree With One Item or Another
• EX : Abortion Not Victimless (Baby as Victim)
• Gambling And Drug Abuse Victimize Families
• Considerable Disagreement Over Which Items
to Include in Law
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FEASIBILITY OF MORRIS & HAWKINS
• How Likely Is It That Such a Program Would Be
Accepted?
• THEY Recognize It Has Little Chance (1970s!)
• Politicians Could NOT Espouse It … Unpopular
• Removal of Sanctions = Support for Behavior
• Politicians LIKE the POWER Criminal Law Gives
Them! (cf. Marx, Quinney, Chambliss!)
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SUM: MORRIS & HAWKINS:
2 AREAS OF DISAGREEMENT
WITH THEIR VIEWS
• 1. DISAGREEMENT IN PRINCIPLE WITH
POSITIVIST BASIS  PREFERENCE FOR
NATURAL LAW APPROACH
• 2. DISAGREEMENT WITH SPECIFIC ISSUES AS
"VICTIMLESS"
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LON FULLER: HOW TO MAKE BAD LAW
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The Experience of “King Rex”
Tries to Make Good Law
8 Successive Mistakes
Not Unlike Mistakes Made Today in U.S.!
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FULLER: BAD LAW (1,2)
• 1. AD HOC LAW
- Law Based On Decisions: Day To Day, Case By
Case.
- No Guiding Principles On Which Law Is
Based.
• 2. FAILURE TO PUBLICIZE
- King Rex Then Established A Set Of Principles
- Didn't Tell Anybody What They Were.
- How Can An Unknown Law Guide Behavior?
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FULLER: BAD LAW (3,4)
• 3. RETROACTIVITY
- King Rex Getting Hang Of This …
- Tells People What Law Is … AFTER Deviance
- Then Explains How They Broke The Law.
• 4. NON-INTELLIGIBLE (OBSCURE)
- Finally Sets Up Code Of Laws …
- And Publicizes It …
- But Nobody Can Understand It!
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FULLER: BAD LAW (5,6)
• 5. CONTRADICTORY
- People Finally Find Out What Law Means
• - Discover Many Rules Contradicted Each Other.
• 6. IMPOSSIBLE TO FULFILL
- Sometimes Laws Were Impossible to Follow
EX: 1 Mile Stretch of Highway, St. Louis County, MO
- Speed Limit Changed 5 Times –
- From 25 To 40 To 30 To 65 –
- No One Could Drive Without Breaking Law.
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FULLER: BAD LAW (7,8)
• 7. EXTREMELY CHANGEABLE
- King Rex Changed Law a Lot
- People Couldn't Keep Up With New Codes.
• 8. INCONGRUITY OF LAW AND ADMINISTRATION
- Didn't Always Use His Laws On Regular Basis …
- Sometimes He Enforced Them
- Sometimes He Didn‘t …
EX: Irritating Problems in Many Communities:
- Law Used When Police Want To Use It
- Ignored When Not Useful
- EX: Use of Anti-Sodomy Laws Only Against Gay Men
- Not Against Heterosexual Married Couples
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SUMMARY OF LON FULLER
• Espouses “Morality of Duty” as Basis for Law
• Disagrees with “Morality of Aspiration”
• Believes States Should Make Law Which Is:
– Based On Guiding Principles …
– Will Publicized … Intelligible …
– Well Publicized Prior To Enforcement …
– Absent Of Contradictions …
– Reasonable To Fulfill … Doesn’t Change Much …
– Is Enforced On A Regular Basis
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ROBERT COOLEY ANGEL (c. 1940)
ON SOCIOLOGY OF LAW
• Sees LAW as One of a Network of Interrelating
Social Structures in a Society
• Sociology Can Contribute to Legal Education …
• By Understanding Milieu in which Law Operates
• Law & These Units Are Interdependent
• There Are Other Means of Social Control
(School, Family, Religion, Community Opinion)
• Lawyers, Police, Courts Should Recognize These
– Q: Should Everything Be Enforced by Law? (Sex?)
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R.C. ANGELL (ctd)
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Socio- Legal Research is Useful – & Difficult
Rules Are Difficult to Define …
Courts Vary Much in Enforcement
Law & Administration Often Vary (cf. Fuller?)
Claims There is Little Variation in Acceptance
of Laws – Sociologist Can’t Study “Constants”
• NOTE: Is This True? Or Did He Simply Miss
the Variation?
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RESEARCH IN SOCIOLOGY OF LAW (Angell)
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Social Causes of Legal Rules
Compare Law with Custom
Analyze Rules v. Administration
Social Effects of Legal Rules:
– On the People – on the Administrators
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How Knowledge of Law Is Diffused
How Much People Know about Law
Where They Get Their Knowledge
Differential Use: Law v. Informal Social Control
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LAURA NADER (Anthopologist)
• Law Belongs in a Social Context
• Law Is Only One Social Control Mechanism
• Law Does 2 Things:
– Settles Disputes (Resolve Social Messes)
– Maintains Order
• “Dispute Settlement” Easier Maintain Order
• Laws & Courts Perform Many Other Functions
– “Scare” Spouse; Embarrass; Increase City Treasury
• Important Parts of Anthro (Sociology) of Law
• Her Research: Letters to Ralph Nader
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CONCLUSION: WHAT
SOCIOLOGY OF LAW DOES
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Analyzes Law & Legal System …
From Perspective of Society …
Sees Law As a Component of Society …
Which Performs Important Social Functions …
Is Established & Influenced by Founding Society
In Turn, Has a Great Impact on the Society
Can Have Unintended Impacts on Society
We Will Be Examining These Issues This Term
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