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Society and The Law

by Karen Hayden

Copyright © 2020 by The Rowman & Littlefield Publishing Group, Inc.

1 Introduction

NO PART OF OUR LIVES IS UNTOUCHED BY LAW. Legal terms and legal language saturates our
consciousness. Law is complex and contradictory. It provides the grounds for our personal
security, equality, and the freedoms that we should take for granted. But law can also distort and
complicate our lives. In his book Democracy in America ([1835] 1961), Alexis de Tocqueville
(1805–1859), a French aristocrat who traveled through the United States to study a developing
democracy said, “scarcely any question arises which does not become, sooner or later, a subject
for judicial debate” ([1835] 1961:223). De Tocqueville observed as far back as the 1800s that U.S.
society was more focused on legal debate than it’s European counterparts. Even de Tocqueville
could not have predicted the extent to which law now occupies the American public’s
consciousness; it is the subject of countless movies, television shows, and books. Today there are
approximately 1,300,705 licensed lawyers working in the U.S. legal system (American Bar
Association 2015). Television personalities including Nancy Grace, Greta Van Susteren, and Dan
Abrams make their careers by talking endlessly about current legal cases on 24-hour television
news stations. The law is an occupation and a preoccupation in our lives.

In American society it is not uncommon to hear people say, “There ought to be a law!” in
response to social problems, or any event that negatively affects people. In fact, “There Ought to
be a Law!” now has its own acronym, TOBAL, making it almost as recognizable as NIMBY or “Not
in My Back Yard.” For example, Senior Huffington Post writer Radley Balko has a website, The
Agitator, which features a “There Oughtta Be a Law” column covering controversial legal issues
including: drug, alcohol, and tobacco policies; civil liberties; and policing controversies. The U.S.
is, for better or worse, a litigious society. This means its citizens are prone to engaging in lawsuits
to settle even minor disputes. In response to particularly horrific events we often call on our
legislators to enact new laws. However, as they rush to enact them, we tend to forget that these
laws can have long-term, unforeseen effects. Sometimes, the reality is that a new law can create
new problems, or aggravate the problem it was intended to solve.

American sociologist Robert K. Merton (1910–2003) examined the latent and manifest functions
of all social phenomena. Manifest functions are the intended, obvious functions of individual
actions, social structures, and social policies. Latent functions are the unclear and unforeseen
functions of these social phenomena. Merton also used the term dysfunction to refer to the
unanticipated, negative consequences (or outcomes) that run counter to the intended purpose
of individual actions, social structures, or social policies (Merton [1949] 1957:60–69). Using
Merton’s analysis of the types of social functions, Sociologists and legal scholars can study the
outcomes of legal changes on individuals, groups, and society.

MANIFEST FUNCTIONS OF LAW

Merton’s distinction between the manifest and latent functions has been used to analyze a
range of social structures and social issues including interracial marriage, social stratification,
religious and social rituals, fashion, bureaucracy, and propaganda. Merton defined manifest
functions as the needs, interests, conscious, and explicit purposes of social activity. Specifically,
manifest functions are “those objective consequences contributing to the adjustment of the
[social] system which are intended and recognized by participants in the system” (Merton [1949]
1968:51). A manifest function is what is supposed to happen when a law is enacted. Ideally, the
public recognizes a social problem and calls on lawmakers to solve it by making it illegal, or by
placing restrictions on the problem, and the problem is solved. In reality, legal solutions to social
problems are not often so straightforward.

LATENT FUNCTIONS OF LAW

Laws can also have unintended consequences, which Merton called latent functions. Latent
functions are initially unrecognized and may only become evident after the law has been in
effect for months, or even years. Even in the case of young driver restrictions, which as discussed
above appear to be quite successful in meeting their intended purposes, there are unintended
consequences. When the New Jersey decal law was passed critics suggested that it would make
young drivers more vulnerable to predators. Others argued that the decal amounted to an
invasion of privacy and challenged the law in the state’s Supreme Court. New Jersey’s Supreme
Court decided that these potential, unintended consequences were not persuasive enough to
outweigh the benefits of the law. The court upheld Kyleigh’s Law with a 6–0 decision (Spoto
2012).

We need to consider the unintended functions of junior operator laws more generally. Some
teenagers need to drive to get to their jobs, and their jobs contribute to the family economy.
Therefore, poor and working-class teens with after-school jobs would be more negatively
affected by a 90-day suspension of their driving privileges. This is just one of countless examples
of laws, or legal changes, affecting people of lower socioeconomic class more directly and more
negatively than people of the middle or upper classes. We will return to the topic of law and
inequalities of race, class, gender, and power in Chapter 6: Law and Social Control, Chapter 10:
Gender, Inequality, and Law, and Chapter 11: Race, Inequality, and Law.

The latent, collateral functions are often unforeseen, yet Merton argued that the sociological
study of latent functions is crucial for making new discoveries about the social world. He said,
“There is some evidence that it is precisely at the point where the research attention of
sociologists has shifted from the plane of manifest to the plane of latent functions that they have
made their distinctive and major contributions” (Merton [1949] 1957:64). When recognizing and
analyzing the unexpected outcomes of new laws, sociologists have contributed to our socio-legal

knowledge about both the good and the harm that legal changes can bring about. Let us, in
Merton’s words, shift to the plane of latent functions to examine a legal and political hot potato:
Residency restrictions for sex offenders.

DYSFUNCTIONS OF LAW
Along with latent and manifest functions, Merton also recognized social dysfunctions. As with
the case of residency restrictions, some of the latent or unintended consequences of laws can
also prove dysfunctional. Merton defined dysfunctions as “any process that undermines the
stability or survival of a social system” (Merton [1976] 1996:96). He further explains that “A
social dysfunction is a specific inadequacy of a particular part of the system for meeting a
particular functional requirement. Social disorganization can be thought of as resultant of
various social dysfunctions” (Merton [1976] 1996:96). The transience and social disorganization
that results from sex offender residency restrictions are both unintended and dysfunctional to
the larger social order.

When considering other dysfunctions of law, laws can become outdated and used for purposes
beyond their initial intention. For instance, blue laws dating back to the colonial period still exist
in many New England states. Blue laws typically prohibit activities on moral or religious grounds
(Sheldon 2016). These archaic laws most often prohibit activities on Sundays, such as the
purchase of alcoholic beverages because Sundays were Sabbaths—holy days—and thus set aside
for worship in the Puritan faith practiced by the colonists. Puritans in Virginia and the New
England colonies imported some of their Sabbatarian traditions to America. In fact, some
historians suspect that the term “blue laws” is derived from the religious laws that were bound
in blue books dating back to the 1600s (Roberts 2016). However, in Massachusetts blue laws
reached well beyond Sunday prohibitions and restricted all manner of behavior including;
spitting on the sidewalk, committing adultery, checking into a hotel under an assumed name,
and frightening a pigeon away from someone’s front lawn. While these laws are clearly
outdated, and in some cases unconstitutional, they have remained on the law books for over 300
years (LeBlanc 2008).

Similarly, but perhaps more insidious, are laws on the books that were enacted for one purpose
and then fall out of usage only to be resurrected for another function. Sociologist William J.
Chambliss studied how laws that have fallen into a period of dormancy, or inactivity, can be
resurrected for new forms of social control (Chambliss 1964). For example, in Massachusetts in
1913, the state Senate passed a law prohibiting the marriage of two people in the state whose
union would not be legal in the state in which they resided. At the time, the manifest function of
the law was to prohibit people traveling to the state to enter into mixed-race marriages. These
marriages had been legal in the Commonwealth of Massachusetts since 1843, but controversy
surrounding people entering the state for the purpose of mixed-race marriages spurred the 1913
prohibition. The law remained on the books even after the 1967 Supreme Court case of Loving v.
Virginia overturned anti-miscegenation laws—laws against mixed-race marriages—throughout
the United States.

In 2003, when Massachusetts became the first state in the nation to allow same-sex couples to
marry, the then Attorney General Thomas Reilly revived the 1913 law in an attempt to block out-
of-state same-sex partners from traveling to Massachusetts to marry and then returning to their
home states. The then Governor, Mitt Romney, agreed with Attorney General Reilly and said the
law must apply to same-sex unions. After several challenges by same-sex couples, the 1913 law
was repealed in 2008. As we will discuss in more detail in Chapter 8: Law and Social Change,
same-sex marriages are now the law of the land in the U.S., overturning any legal prohibitions
against same-sex couples from entering into a legal marriage contract. A closer examination of
anti-miscegenation laws is presented in Chapter 11: Race, Inequality, and Law.

Another major dysfunction of law was identified by American legal scholar Donald Black (1989).
Black argues that many kinds of discrimination and disadvantage are built into the legal structure
and can be dysfunctional. Black quotes Anatole France (1844–1924) who said, “The law, in its
majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the
streets, and to steal bread” (1894). But to whom are these laws most often applied? By and
large, laws are constructed by those who already hold power in society. Therefore, the law has
many dysfunctions, not least of which is the inequality built into its very construction and
execution.

Laws have also supported some of the worst evils in our society— slavery, wars, and treaties that
nearly eliminated the Native American population of North America, the internment of Japanese
citizens and Japanese-Americans during World War II, and the disenfranchisement of 50 percent
of the American population (women) until 1920. In this book, we examine both the positive and
negative consequences of current laws, legal changes, and legal issues. We will look at same-sex
marriage laws, laws that attempt to determine racial and ethnic identity, and the state of law
and gender discrimination in the U.S.

Laws can both help and hinder. De Tocqueville and other scholars of the American legal
structure have acknowledged both the positive and negative aspects of law on our lives. On the
positive side, there is the social contract—laws keep tyranny at bay and grant us individual rights
and freedoms. The social contract is a cornerstone of an organized society; it is the idea that
individuals willingly enter into a state of governance in return for protection of their individual
freedoms, their rights, and their general social welfare. The earlier discussion of junior operator
laws provides an example of the social contract. The law was put in place to protect junior
operators, and all drivers on the roads, from dangerous mistakes. If young people want to drive
they willingly submit to the state’s requirements. Critics of the law argue that these and other
driving laws, such as seatbelt requirements, represent the government as so-called “nanny
state”—the notion of an overly protective government that wants to control all aspects of it
citizens’ lives. But the laws are increasing the safety of people on the roads. Being a member of
society presents a trade off between the loss of some individual choices and freedoms and the
increased welfare and safety of citizens of the nation-state.

De Tocqueville and countless other legal scholars also note the negative aspects of law. In fact,
de Tocqueville worried about the tyranny of the majority, as did James Madison the fourth

president of the United States, “father” of the Constitution, and author along with Alexander
Hamilton and John Jay, of the Federalist Papers. Just because a lot of people vote for something,
or call on their legislators to enact a new law, does not make it right or beneficial. Madison’s
system of checks and balances was intended to ensure that no one branch of the government
gained too much power and that the tyranny of the masses will not threaten the liberty of
individuals. Madison believed, “Justice was the end of government. It is the end of civil society”
(https://www.billofrightsinstitute.org/founding-documents/primary-source-documents/the-
federalist-papers/federalist-papers-no-51/).

The apparatus of law gives vast power to judges, lawyers, and legislators. Judges can exercise
their power arbitrarily; they are human beings who may harbor personal biases or conflicts with
other human beings for instance, the lawyers trying cases before them. They are also given an
enormous amount of institutionalized power and protection, which can lead to abuses of power.
A horrifying example of judicial abuse of power played out in northeastern Pennsylvania, in what
came to be known as the “kids for cash” scandal. In 2009 two judges in the Luzerne County
Juvenile Justice System, Judge Mark Ciavarella and Judge Michael Conahan, were sentenced to
lengthy prison terms for misdeeds involving their treatment of juvenile offenders. Throughout
the first decade of the 2000s, the two judges sentenced over 2,000 juveniles to detention
centers for minor infractions. Since the judges had financial stakes in the construction of the
private detention center, Pennsylvania Child Care, and in keeping the building filled with juvenile
offenders, these cases involved the blatant abuse of the power and trust that the people of

Luzerne County had granted these judges (Ecenbarger 2012).
Judge Conahan pled guilty to taking kickbacks for placing children in the privately owned
Pennsylvania Child Care facility. He also pled guilty to money laundering and other federal
offenses (Ecenbarger 2012). Conahan is serving 17 years in a federal prison. Judge Ciavarella,
who the court determined played a larger role in the scandal, was found guilty of twelve federal
felonies including racketeering (running an illegal business), bribery (taking or giving money,
goods, or services to influence a person to act dishonestly), extortion (obtaining money, goods,
or services through threats or intimidation), money laundering (making money that was obtained
illegally look legal), and conspiracy (planning to commit a crime) (Ecenbarger 2012). Ciavarella is
serving 28 years in federal prison.

This scandal exemplifies the individual and institutionalized abuses of power and law. The judges
involved were embedded in a culture of silence that protected them and allowed their abuses to
go unchecked. They grew emboldened by the “zero tolerance” and “get tough on juvenile
offenders” wave that swept the country after the Columbine and other school shootings in the
late 1990s and early 2000s. While these two individuals were clearly in the wrong, larger cultural
forces also shared some of the blame.

LAW AS A SOCIAL CONSTRUCTION
Karl Marx said that people make their own history, “but [they] do not make it out of the whole
cloth; [they] do not make it out of conditions chosen by [themselves] but out of such as [they]
find close at hand” (1852:9).

What do we mean when we say that law is a social construction? Anything that emerges through
human interactions that take place within linguistic, economic, political, and legal contexts is a
social construction. Laws are human constructs; we create laws to address social problems,
settle disputes, and to exert power over others.
ource: Edward Koren, New Yorker/CartoonStock.com

What do we mean by law? Among scholars there is no universally agreed definition of law. If you
want a definition of law, ask a legal scholar then, if you want another definition of the law, ask
another legal scholar, and so on. One legal scholar, Max Radin, warned, “Those of us who have
learned humility have given over the attempt to define law” (1938:1045). Another legal scholar,
Oliver Wendell Holmes, preferred a simple, pragmatic definition of law as “the prophecies of
what the courts will do, in fact and nothing more pretentious” (1897:460). Even poets have
grappled with the question, “What is law?” In W. H. Auden’s Poem, “Law, Like Love,” the writer
illustrates the difficulty of defining both concepts. Auden wrote:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
Tomorrow, yesterday, today.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law (1983:1101–1102).

Perhaps the perfect definition of law does not exist, but this is a book about society and laws,
therefore, working definitions of both terms are required. The term society is often used but
rarely defined. A working definition of society is the largest form of a human group. Members of
society typically share a common territory and governance, as well as a common culture and
social institutions, including the family, the economy, and law. A working definition of law for the

purposes of this book is a body of norms or rules that regulate the actions and interactions of
individuals, groups, institutions, and societies. Laws are the codified social norms of society.
Norms are established rules of conduct. To codify a norm means to write it into legal code and
classify it among other legal codes to make it official.

MAX WEBER’S SOCIOLOGICAL APPROACH TO THE STUDY OF LAW
One of the most influential conceptualizations of law within the sociological tradition is the one
proposed by Max Weber (1864–1920). In his book Economy and Society ([1905] 1978), Weber
defined law as a body of rules maintained through consensus and coercion. According to Weber,
consensus is agreement about how and why laws are made and what their purposes are.
Consensus is the notion that there are deeply held standards of behavior upon which people
agree and to which they willingly consent. Coercion is the enforcement of norms through the use
of organized governmental power. As Weber states, “an order will be called a law if it is
externally guaranteed by the probability that coercion, physical or psychological, to bring about
conformity or avenge violation, [and] will be applied by a staff of people holding themselves
especially ready for that purpose” (1947:127). Coercion includes all forms of negative sanctions,
or punishments, for the violation of norms. Negative sanctions can include fines, community
service, probation, and time in jail or prison.

To illustrate Weber’s concept of law, let’s look at the setting of a college classroom. A college
classroom contains elements of both consensus and coercion. Typically, there is consensus about
the roles of student and professor, and there is agreement on the terms set forth in the syllabus.
People enter the class because they have agreed to be there and to act in accordance with the
roles and the expected behaviors attached to those roles.

However, coercion could come into play if a student violates the norms of the class, if he or she
is late every day, interrupts class, plagiarizes a paper, hands in someone else’s work, or cheats on
an exam. If a student breaks any of the rules set forth in the syllabus or the college’s or
university’s honor code, there will be sanctions including a failing grade on the assignment or in
the class, and depending on the extent of the infraction expulsion from the school. These are
negative sanctions.

Professors can also be the subjects of coercion if they act improperly—if they discriminate
against a student or somehow treat students unfairly. For instance, if a professor arbitrarily
changes the rules of the class midway through the semester, he or she could be sanctioned by
the department or by the college. If the violation is egregious enough, the professor could be
terminated from the school. This is just one example of how consensus and coercion operate
continuously within every aspect of our lives, even when a person appears to be the authority
figure in a situation.

In Weber’s conception of law, the law contains three basic features that distinguish it from other
normative orders, including folkways or conventions, and customs or mores. These three
features are:

1. Pressures to comply with the law must come externally in the form of actions, or threats
of actions by others, regardless of whether a person wants to obey the law or simply
does so out of habit.

2. These external actions or threats always involve coercion or force.
3. Those who enact the coercion are individuals whose official role is to enforce the law.

This corresponds to Weber’s notion of legitimate authority. Legal authority is legitimate
because it is based on rational grounds and is the right of those who have been elevated
to positions of power to issue rules and commands (1947).

In contrast to laws, Weber said, were customs and conventions. Customs are general rules that
members of a society follow, but they are not tied to any external sanction (Weber 1947). You
will not be formally punished if you choose to break a custom. Similar to Weber’s term custom is
William Graham Sumner’s use of the term folkway. Sumner (1840–1910) was an American
sociologist who defined folkways as “habits of a group” (1907:2–3). Folkways are the small, daily
behaviors that people tend to follow out of tradition and because doing so helps maintain the
flow of social interaction, such as holding the door for someone or facing the door when you get
on an elevator. You could face your fellow elevator passengers, but it would interrupt the daily
routine of elevator travel.

Weber’s use of the term convention also stands in contrast to law. Conventions are more
binding than customs, but not so binding as to be written into law (1947). People conform to
conventions not because they fear arrest, but because they will meet with the strong disapproval
of their family and peers. Weber’s conventions correspond to Sumner’s mores, which are
standards of behavior that are more important to the social structure than folkways, but not so
important that they have been written into law (1907). Mores reflect the general welfare of the
group such as looking out for small children or taking care of one’s elders (Figure 1.1).

Laws are distinct from other norms or rules of conduct. They carry the weight of punishment;
they are enforced by specialized people in offices with legitimate authority to do so. Laws reach
into every part of our lives but not all laws are equal. Since the apparatus of law is so enormous,
we will be looking at ways to make the study of law more manageable. One way to break law
down into smaller parts is by using typologies. A typology is a system of classification that helps
break a large concept into smaller categories, making it easier to grasp and apply to real-world
scenarios. Weber also contributed to the study of society and law by using typologies of legal
systems.

In his sociological examination of law, Weber made a distinction between public and private law.
Public Law is the system of legal norms that directly regulate actions by the state, state officials,
and people acting as agents of the state. The highest level of public law is constitutional law; it
establishes the fundamental laws to which all others must conform. Private law is made up of all
of the legal norms that regulate relations among individuals and among associations of
individuals in social and economic relationships including marriage laws and other family law,
labor contracts with private employers, and all other forms of civil law ([1905] 1978). A crime is a
public wrong; a tort is a private wrong.

In contributing to our understanding of law Weber also constructed a typology of three general
academic approaches to how the law can be studied. The purpose of Weber’s typology is to
provide different ways of analyzing the law. I will briefly discuss all three approaches, but the
remainder of the book will focus mainly on the third approach, the sociological approach to the
study of law (Figure 1.2).

1. The Moral Approach
The moral approach to law is based on the idea that law is rooted in some underlying beliefs
about the nature of human beings and about what is right and what is wrong. Law is an
expression of a common moral order on which there is general consensus. The moral approach
is associated with claims of universality or commonality. Murder is against the law because we all
agree it is bad, wrong, and immoral.

An example of the moral approach to law can be found in the writings of French philosopher
Jean Jacques Rousseau (1712–1778). Rousseau believed that all people are born good and noble
but if they become bad they have been corrupted by society. In The Social Contract (1762)
Rousseau wrote that “man is born free, and everywhere is in chains.” According to Rousseau, the
evils of social life are due to the constraints of society: the government, laws, and social
institutions. Rousseau wondered how individuals retain their freedom within the social structure.
He argued that morality exists outside the law and that law is an attempt to embody moral
values but does not always succeed.

Along these lines American poet, naturalist, and philosopher Henry David Thoreau (1817–1862)
offered another moral approach to law. Thoreau argued that people can and sometimes should
disobey the law on the basis of moral principles. Civil disobedience is any act of lawbreaking
intended to illustrate that the laws themselves are wrong and unjust ([1849] 2004). Examples of
civil disobedience are acts of deliberate resistance, such as refusal to pay taxes which Thoreau
did during the Mexican–American War. Other examples are refusal to join the armed forces as a
conscientious objector, leaving the battlefield as a war deserter, and striking or taking part in
other forms of work stoppages to highlight unjust practices of employers. In 1955 Rosa Parks
carried out one of the most famous acts of resistance of the civil rights movement when she
refused to give up her seat and sit in the “colored section” at the back of the bus. Acts of
resistance are topics that could be studied using a moral approach to the law.

2. The Jurisprudence Approach
Jurisprudence is the scientific study of law. This approach argues that the law should be
internally consistent, orderly, and logical. The law should be autonomous; it should be
independent of religious, ideological, and political beliefs. Law is viewed as a coherent body of
rules that are rational, logical, and meted out fairly. Law is the expertise of those within the legal
profession, especially judges and legal scholars. These assumptions make it quite different from
the moral approach.

The jurisprudence approach was discussed by Nicholas Timasheff in his 1937 article “What Is

Sociology of Law?” Following Weber, Timasheff differentiates between the sociology of law and
the jurisprudence approach to law, which he defines as the science of law. Timasheff also notes
that jurisprudence has many branches or subfields including comparative/ analytical
jurisprudence, historical jurisprudence, and theoretical jurisprudence. Practitioners of the
jurisprudence approach believe in the strict separation of legislative lawmaking and judicial
decision-making and argue that the latter is the true arena of pure law (Figure 1.3).

For example, let’s look at the definitions of negligence from a jurisprudence approach. Legal
definitions of negligence require bipolarity, one of the legal constructs that defines the law on
negligence. In a criminal case bipolarity means that one party is harmed (the victim) and another
party caused the harm (the perpetrator or the defendant). In civil law awards of damages are
based on the wrongfulness inflicted by the defendant. Legal theories of causation consider how
directly the wrongful action of the defendant harms the plaintiff. Definitions of negligence and
harm are legal constructs that have been established over time. They can be studied, and
analyzed, and traced back to their origin. This type of academic exercise is the goal of the
jurisprudence approach to the law.

3. The Sociological Approach
The third approach in Weber’s typology takes a sociological approach to the study of law. This
approach is concerned with the morality of law and its internal logic, like the first two
approaches, but its primary concern is social: the effects of law on social action, how the law
affects people’s beliefs about the social world, and how social and legal institutions are
organized and change as society changes. A sociological approach to law also examines how law
is created, which social groups have access to law-making, and how various social groups are
affected by the law’s enactment. Sociologists are interested in how laws are created and the
social conditions that give rise to new laws and changes in law.

To distinguish between Weber’s three approaches let’s take the example of how a sociological
approach to law differs from the moral and jurisprudence approaches, using laws determining
the legal age to drink alcohol in the United States. What would the moral approach consider on
the issue of underage drinking? A moral philosopher of law might argue that drinking is
dangerous and immoral for minors and that children need protection from the potential harm
and corruption of alcohol. A moral approach could also look at the act of underage drinking as a
form of resistance to a law deemed unfair or arbitrary by teen drinkers, not unlike Thoreau
refusing to pay his taxes.

A jurisprudential approach to the topic of underage drinking might ask the following questions:
What is the appropriate age of legality? How and when were these limits established and by
what branch of the government? Why? Were there legal precedents? Are the laws establishing
legal drinking ages consistent across time and place? Are those who sell alcohol to minors
culpable for harms that occur while minors are under the influence? A jurisprudential analysis
might also consider legal definitions of harm, risk, and liability associated with underage drinking.

What can a sociological approach add to the discussion of underage drinking? Despite the fact
that laws forbidding this behavior have been in place for decades—and the legal definitions take
into account harm, risk, and liability—we know that underage drinking is a widespread social
phenomenon, particularly on college campuses and other places where teenagers and young
adults congregate. Sociologically, we could look at the impact of the law on social behavior. For
instance, what is the point of upholding a law that is so routinely broken? Maybe prohibition of
underage drinking is not harsh enough, and the legal drinking age should be 22 or 23.

Sociologists can look at drinking as a teen ritual or rite of passage, or as a form of groupthink
where group members seek consensus or unanimity above all else, even to the point of
suppressing their own personal opinions and silencing dissenters (Janis 1982). We could examine
the social context of the laws, when were the laws constructed and why? Which states changed
the laws first, and which ones waited until later? A sociologist could conduct a cross-cultural
analysis of teen drinking patterns in the United States compared to those in countries that do
not have age limits. Do the laws deter teen drinking? How does drinking behavior differ in the
United States when compared to countries with more liberal approaches to young adults
imbibing, such as France or Italy?

A development in the study of law dating to the mid-nineteenth century combines two of
Weber’s approaches to the study of law. Sociological jurisprudence brings together the
sociological with the jurisprudential approach to study law, legal philosophy, and the use of law
to regulate conduct. Roscoe Pound (1870–1964) founded the field of sociological jurisprudence.
He argued that law should be studied as a social institution, and he utilized sociological theories
and data in his work. Pound served as the dean of Harvard Law School from 1916 to 1936, and in
those twenty years he developed his interdisciplinary approach to the study of law and society,
viewing law as a dynamic, ever-changing system influenced by social forces, which in turn
influence the larger society. As Pound stated in one of his most famous quotations, “The law
must be stable, but must not stand still” (Pound 1922:19). We will look more closely at law and
social change in Chapter 8.

Sociology and the study and practice of law do not always fit together perfectly. Each field has its
own specialized language and methodologies. Lawyers are advocates and sociologists are
scientists who should try to be as objective as possible. Sociologists view the law as an object of
scholarly inquiry, not a tool to be used and practiced by social scientists. Increasingly, sociologists
and lawyers are working together on problems that concern both groups, including jury behavior
(social psychology), jury selection, conflict resolution, and consumer protection issues. Many
lawyers and judges use sociological and criminological research in their work. The two
professions certainly overlap and can complement each other.

In the next chapter, we will look more closely at the rule of law as well as different typologies of
law and legal systems. As we have already seen in this chapter, there is no one way to define and
study law. In Chapter 2: The Rule of Law and Major Legal Systems, we continue to examine some
of the ways sociologists and other socio-legal scholars have taken up the task of defining law and

studying how law affects the social lives of individuals. We also look at other typologies of law
and different legal systems that exist throughout the world.

• civil disobedience
• codify
• coercion
• consensus
• conventions
• crime
• customs
• dysfunctions
• folkway
• jurisprudence
• law
• litigious
• manifest functions
• latent functions
• mores
• negative sanctions
• norms
• private law
• public law
• social contract
• sociological approach
• tort
• typology
• working definition of society
• working definition of law

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