Week Two, Law and Society

Assignments for Week 2:

1. Read Chapter 1 in your textbook, and read Lecture 1 below.  

2. Cases in class this week:

            Chapter 2, State v. Metzger

            Chapter 2, Lawrence v. Texas

            Chapter 2, Kennedy v. Louisiana

3. We will have the first quiz this week covering Chapter 1 in your Samaha textbook, and the lecture below. 

Lecture 1:  An Introduction to Law and Society

1.  Undergraduate students find the study of law, particularly criminal law, fascinating; yet reading judicial opinions for the first time with legal jargon and formalistic writing can be intimidating.  In your textbook, consult the glossary at the back of the book for legal definitions. 

Sociological Interest in Law

1. In the late 1970s, American Airlines fired Renee Rogers for refusing to change her hairstyle; she had been employed by the company for 11 years.  She wore her hair in tight braids (cornrows), and she had moved to a position where she had direct customer contact; the company felt she should not have such an "extreme" hairstyle.  She filed a federal lawsuit against the airline, charging that her dismissal and the grooming regulations constituted discrimination against black women, in violation of the Thirteenth Amendment to the U.S. Constitution and Title VII of the 1964 Civil Rights Act.  American Airlines did not say there were any safety concerns, which raises the issue of discrimination against her based on her gender and ethnic group.

2.  The court decided that she was free to look for another job if she did not want to change her hair.  They concluded that it was not gender discrimination, because men can braid their hair too.  Also, it was not an immutable characteristic, like skin color; it is a choice and therefore not protected by antidiscrimination law.

3.  Since that time, no court has overturned this decision.  Most legal cases are taken for granted and routine, but this one is of interest to sociologists.   

Relevance of this Case

1.  This case demonstrates what counts as law.  The Roger's case involved written law in the Amendments to the Constitution and the 1964 Civil Rights Act.  It also involved judges’ rulings related to cases that came before.  Lastly, it involved the grooming code of American Airlines; the judge found the code legitimate and binding which effectively is law.

2.  It also illustrates the ambiguity of legal rules.  In the Rogers case, how “extreme” must a hairstyle be to justify firing an employee?  What kinds of behavior constitute ethnic or gender discrimination?  What kind of injury must there be for someone to sue for damages?

3.  Legal discretion is a part of this case.  If legal rules are ambiguous, legal decision makers have considerable discretion about how they interpret and apply those rules.  What factors affect the use of legal discretion?  Is there ethnic and gender bias in the law?  The bias in this case was unspoken, and perhaps unconscious.

4.  This case illustrates the relationship among law, culture, and identity.  Appearance is part of culture, but so is law.  Law is a symbolic human product, not a natural phenomenon.  Do changes in society cause changes in the law?  Do changes in law cause changes in society?  Is law also a force for continuity?   

5.  Most importantly, this case is an example of the relationship between law and economic power.  Renee Rogers was an individual suing American Airlines, which is a large corporation.  It is not surprising that she lost!  American Airlines has the advantage of a huge amount of resources and experience in the courts.  It is difficult to find attorneys willing to take on discrimination cases, because they are tough to win, and the financial rewards are often small. 

Some Perspectives about the Law

1.   Law is often viewed as a normative system that reflects society’s values--its morality.  When we use law to achieve some social or political goal (to reduce discrimination, control sexual behavior, or protect children and animals) we are using law as a normative system.  We want to feel that we live in a just world, but whose values are embodied in the law?  We agree that law should operate fairly, and agree that law should regulate automobile traffic and prohibit theft and murder.  However, we disagree about standards of sexual morality, and we disagree about expansion or repeal of capital punishment, just to mention a few areas of dispute.. 

2.  Law is also seen as a game.  Many people are inspired to attend law school by a desire to make the world a better place:  to protect the environment, prosecute fraud, or provide legal services to the poor.  These are moral visions of the law.  Law professors try to convince students that law is a game—a deadly serious one, but still a game  The winner is not the person with the superior moral position, but the one who has the best command of the rules and the facts that pertain to a particular case.  Law is a game in the sense that it functions as a set of procedures for settling disagreements in a nonviolent way.  It is also like a game because it does not really matter who wins: the important thing is that the game is played in a consistent and fair way.  Ultimately, we never know what the truth is; we judge the outcome based on whether or not the process was fair.  This perspective allowed law to become formally autonomous from religion, politics, and other normative systems, and allowed it to become a central feature of democratic government. 

If law is a game, it is very much a lawyer’s game.  Legal professionals make the rules, call the plays, and own the skills that are necessary to win a case.  Ordinary citizens are incompetent amateurs.  However, amoral law can breed cynicism, and lawyer jokes are a reflection of that cynicism.  Also, if there is no apparent connection between law and morality, there is no compelling reason for citizens to respect the law.  If the perception that procedural technicalities overwhelms the search for justice, the foundation of the institution itself may begin to erode. 

3.  Both perspectives (normative system and game model) are internal perspectives on law.  The assumption is that law develops according to its own internal dynamic, toward either moral or logical perfection.  Both perspectives are prescriptive—about how law should be and the direction it should develop. 

Law from a Sociological Perspective

1.  Sociology is an explanatory activity—it offers accounts of why the world is the way it is and why it changes. Law is part of the social order in that it coexists, interacts, and competes for resources with other kinds of institutions.  Sociologists are concerned with how law actually operates in the world. 

2.  Sociologists are interested in the legal behavior of people in groups, such as occupational and professional groups.  Police officers, lawyers, judges, and all the rest belong to established occupational and professional groups and work in complex, stable organizations.  They recruit and train their members in distinctive ways.  It matters that police officers are disproportionately white males from working-class or lower-middle-class backgrounds.  Judges are disproportionately older white males from upper-middle- and upper-class backgrounds.  Lawyers are an increasingly diverse group with regard to gender, age, and ethnicity but still are disproportionately white.

3.  Sociologists look for patterns of behavior in social life.  A role is a prescribed set of obligations and rights that are attached to a certain social position.  Some roles are defined formally, such as by written job descriptions for different types of employees.  Roles make organized social life possible, because they tell us what to expect of each other in various situations.  The legal system can work only because lawyers, judges, litigants, police, and all participants are expected to conform to role expectations.  But even formally defined roles never completely determine behavior--they define the minimum requirements or outer limits of what is acceptable.  In the legal system, the capacity for improvisation is referred to as discretion.  The roles in the legal system are arranged in a hierarchy.  Some roles come with more power, authority, or prestige than others.  The various organizations comprise multiple hierarchies that overlap in confusing ways.  Judges, prosecutors, public defenders, and police officers are all public officials, but they all work for different agencies that report to different levels of government.  This raises problems of coordination and control, because these agencies have conflicting priorities.  Police have incentives to make a lot of arrests.  Prosecutors have incentives to convict the defendants that the police bring to them.  The most obvious way for police to increase their arrest rate is to pursue borderline cases--those involving minor crimes and poor evidence.  So, more weak cases are sent to prosecutors, making it difficult for them to get convictions. 

2. To a sociologist, law is an institution.  Institutions are sets of instructions for producing some outcome, but they are treated as sacred.  The family is an institution, and has socially-created instructions for raising children and providing adults with emotional partnership.  We take families for granted--they seem the normal and natural way for people to live.  What makes it more than a convention is the aura of sacredness about it.  Families do not need to be explained, but people who lack a family do.  Alternative family arrangements, such as unwed mothers, are not just different—they are challenges to “family values” and are therefore frightening to many people.  The law is also a taken-for-granted institution; it is a set of instructions for controlling the harmful behavior of citizens, for organizing economic relationships, for settling civil disputes nonviolently, among other things.  Law is taken for granted in the sense that it is hard for us to imagine a society without it.  The sacredness of law overlaps with the sacredness of democracy in Western societies. 

3.  Institutions are constraining and are sources of power.  Law is constraining in that it consists of rules that require people to behave in certain ways or forbid them from acting in other ways.  Law is also a source of power for people who enforce the law.  But the power does not come just from the fact that they have a command of brute force; force is not a good foundation for a stable system of law and government.  The most effective kind of power comes from a shared understanding that officials ought to be obeyed because they represent something larger than themselves; that they are legitimate.  In recent years, what is at stake for the state is its own legitimacy.  For the profession of lawyer, what is at stake is monopoly over legal work.  Law is expansive--its influence has seeped into every area of social life.   At least in part, law is rivaled only by science as an exemplar of rationality and order in the modern world.  For society, law is both a source of continuity and a source of change. 

© Karen Donahue 2017