IE

LiYTRODUCTlON

viCled of killing another black; in Georgia, over 30 times hi3,7.er, in Florida, nearly 40; and in TexZ5. ::c.arly 90 limes higher. Similarly, sencencing for negligenc homicide \\'ich a car is by far the most severe when che victim~s status is higher than that of the offender's (1989:10). Obviously, the list of dysfunctions of the law is incomplete. One may add to this list a variety of procedural inefficiencies, administrative' delays, and 'archaic legal tech nologies. One may also include the cost of justice to the middle class and its unavailability to the poor, to the consumer, and to minority group members. Questions also can be.raised regarding the narrowness of legal education and the failure of ethical indoctrination, laws being outof-date, inequitable criminal sentencing, lack of c1al'ity of somc laws rcsulting in loopholes and diverse interpretations, and the dominating use of law by one ciass against another (Rostow, 1971; Strick, 1977)_ Finally, critics of the law point to the current rage for procedure and to "govern ment by judges" as being particularly dysfunctional in a world as complex as ou rs (Crozier, 1984: 116-117).
MODELS OF SOCIETY

Sociological discussions of law in soci.ety al-e generally grounded in one or two ideal conceptions of society: the integration-consensus and the cmiflirlco~cion perspectivcs. The form~r describes society as a functionally intcgrated, relatively stable system held together by a basic consensus of values. Social order.is considered as more or less permanent, and individuals can' best achieve their i~nterests through cooperation. Social conflict is vie\\'ed as the needless struggle among individuals and groups who have not yct at tained sufficient understanding of their common interests and basic illlcr' dependt:nce. This perspective stresses the cohcsion, solida,'ity. integ-ration, cooperation, and stability of socicty, which .is secn as unitcd by a shared culture. and by agrecmcnt or. its fundamental norms and valucs, The conJlict-co~cion perspecr; . , in direct opposition, considers society e as consisting of inciividuals and groups characterizcd by conflict and dissensi<-,Iann held together by coercion_ Order is temporal")' a-nd unc;tal~1cbe cause every individual and group strives (0 maximize its own intel-ests in a world of limited l-esources and goods. Social conflict is considered as intrinsic to the interaction between individuals and groups. In this perspective. the maintenance-of power requires inducement and coercion, and law is an instrument of repression perpetuating the interests of the powerful at the cost of alternative interests, norms, and values. But, as Ralf Dahrendorf aptly points out, it is impossible to choose empirically between these two sets of assumptions: "Stability and cha:lge, integration and conflict, function and 'd)'sfunction: consensus and constraint are, it would seem, two equally valid aspects of every imaginable society" (1958:174-175). When law in society is vie.wed in one of these two perspectives. not surprisingly, quite disparate conceptions of its basic role emerge. Let us examine in some detail the role of law in these two perspectives.

Ib

INTRODUCTION

17

The Integration-Consensus

Perspective

The integration-consensus perspective considers law as a neutral framework [or maintaining societal integration_ One of the best known and most influential legal scholars, Roscoe Pound (1943, 1959), views so~iety as composed of diverse groups whose intercsts often conflict with one anothcr, but which are in basic harmony_-He considers certain interests as essential for thc well-bcing of socicty and maintains th.H the rcconciliation betwcen the conflicting intcrests of thc diverse groups in sodcty is essential-in order to seClll-C and maintain social order_ In his words, law: . is an altcmpt w satisfy, lO n~concilc, to harmonizc, lO aqjllst thcse o\'crlapping and oftcn connicting claims cllld dcmands, cithcr through sccudng thcn~ dil'cctly clOd immcdiatcly, or thl-ough sccuring cenaill indh'idual intel-csts, 01through c1c1imilCltiol1sor cOlllpnHuiscs of indi,'idllal intcrest~, so as W givc effect 10 the gre;llest lowl of iutcn:sts or ((J thc illterests that weigh most ill our ci\"iliz;llioll, with dlc least sacl'ificc of the scheme of the intcl'csts <IS a ",holc (pound. I~'4:V~9), In Pound's \-icw. law in a heterogeneous and pluralistic society. such as the United Statcs. is best undcrstood as an effort at social compromise with an emphasis on social ordel- and h;;tnnony_ ('ound aq;ues th:li the hislOrical developlllcnt or law ckll10nstnlles a growing- rccog-nition and satisfanion orhulll<ln \,-ants, claims, anel dcsi,-cs thnlllgh la\\', O\'e"tilllc,law has <If human i!1\~"CSI:', -l.a\\' h::s cOllcerned itself ~\'ith all cvcr \\'jck.' spcclruill more and lIlore come {() pro\';de fOJ' lhe commO!l good and 'tIlC satisfaction of social wants (Pound_ I~1:)~1:47), Hc cOl1siders lal\' a form of "social cngillcerill1-( din:clccl {()",an( :lcllict'ing- ~ocial hanll(1I1Y, Pound argues thaI the purpose ofia\\' is to maintain anclto ensure (hose values and nceds es~ential to social ordcl', not by imposing one gn>up's wili on othCt-s, but by controlling, I-econciling, and mediating thc divcrsc and connicC1ng intcrests ofindividuals and gmups within society_ In bricf, thc purpose of Ia\\' is to control intercsts and to maintain hanllony and social integration. Talcot{ P,l1:-\ons (1962:5S) concun; with Ihis vicw by ~t1gs-e=,ting that ", , , the primar)' funct ion of a legal system is integrity. It servcs to mitigate potential elements of conflict and to -oil the machinery of social intcl- (1962), accept this course." Other sociologists. such as Ha ..y C_ Ihedemcicr pcrspectivc and belicve that it is nccessary for society to supplem<;nt informal with forlllal IIlcchani~llls for gencratingand sustaining interpersonal cooperation. Proponents of the integl-ation-consensus pcrspcctive furthcr advoc.ue that la\,- exists to maintain o,-dc,- and slability. Law is a body of i"ules enact cd by rep,-esentativcs of the pcople in the intcrests of the l;e()ple, Law is essentially a ncutral agent, dispcnsing rcwa,-ds and puni.shmcnts without bias. A funclamclllal assumption -of this pcrspcctivc is that the polito ical system is plurcllistic: that society is composed of a number of interest groups of more or less equal power. The la\\;s reflect compromise and con sensus among these various interest groups and the values that are [unda mental to the social order (Chambliss, 1976:4).

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lNTRODUcrrO.v

The Conflict-Coercion

Perspective

In marked contrast to the integration-conse~sus perspective, the can fliet-consensus view considers law as a "weapon in social conflict" (furk 1978.) and an instrument of oppression "employed by the ruling classes fa their own benefit" (Chambli~s and Seidman, 1982:36). From "th~s perspec tive, the transform::ltion of society from a small, relatively homcgen~ou social group to a network of specialized groups is brought about by th, evolution of both distinct sets of inter~sts and differences in" real powe between group~. When diverse groups come into conflict, they compete il order to have their interests protected and perpetuated through the formai ization of their interests into law. On the basis ofthis idea, Richard Quinne" argues that rather than being a device to control interests, law is an expre~ sion of interests, an outgrowth of the inherent conflict of interests charac teristie of society. According to Quinney: Society is characterized by diversity, conflict, coercion, and change, rathe than by consensus and stability. Second, law is a result of the operation 0 interes5,rather than an instrument that functions outside of particular inter est.>. hough law may control interests, it ts in the first place cr~at~d by inter T ests of specific persons and groups; it is seldom the product of the whol. society. Law is made by men, representing special interests, who have tho po.... to translate their interests into public policy.Unlike the pluralistic COI! er ception of politics, law does not repre,sent acomprCi.nise of the diverse inter ests in society, but supports some interests at the expel~seof othcl"s(1970:35~ Proponents .of. the conflict-coercion persp~ctive believe that law is : tool by which the ruling class exercises its control. Law both pl:otects th, property of those in power and serves to repress political threats to th< position of the elite. Quinney (1975:285) writes that while the state, cantrar: to conventional wisdom, is the instrument of the ruling class, "Law is lh, state's coercive w~apon, which maintains the social and economic order: and supporLS some interests at the expense of others, even when those inter csts are that of the majority. But advocates of this position overstat~ their case. NQt all I"",s an created and operated for the benefit of the powerful ruling groups In soci ety. Laws prohibiting murder, robbery, arson, incest. and assault beneti.t al members of society, regardless of their economic position. It is too broa( an assumption that pO\1erful groups dictate the content of law and its en forcement for the protection of their own interests. As we shall ~ee in Chap ter Four, all kinds of groups are involved in lawmaking, although the power Cuigroups do have substantial input into the lawmaking process. These two perspectives-integration-consensus Clnd conflict~coer cion-of society are ideai types (that is, abstract concepts used to describe essential features of a phenomenon)." Considering the operation of lega systems in society, there may be an element of truth in both. Sociologist who are influenced by Karl Marx, Georg Simmel, Lewis Coser, and Ral Dahrendorf generally tend to embrace the conflict-coercion perspective 0 law in society. One of their justifications for taking this theoreti~l stance is that this approach emphasizes the role of special-interest groups in sod
'9

lNTRODUCTION

19

ety. For example, the power of economic and commercial interests to influence legislation is illustrated by William J. Chambliss in his study of va grancy statutes. He notes that the development of ~agrancy laws paralleled the need of landowners for cheap labor during the period in England when the s}'Stemof serfdom was collapsing. The first of these statutes,which came into existence in 1349, thi'eatened criminal pUI.lishmem for those who were able-bodied, and yet unemployed-a condition that existed when p~asants were- in the process of moving fl"Om the land into the cities. The vag,-ancy law served "to force laborers (whether persoflally free or unfree) to accept employment at a low wage in order to insure the landowner an adequate supply of labor at a price he could afford to pay" (Chambliss, 1964:69). Subsequently, vagrancy statutes were modified to protect the commercial and industrial interests and to insure safe commercial transportation. In the late nineteenth and early twentieth centul"ies in the United States, vagranc)' laws were used again to serve the interests of the wealthy. Agricultural states during harvest time enforced vagrancy laws to push the poor into farm work. In perieds of economic depression, similar laws 'were used to k~ep the unemployed from entering the state (Chambliss and Seidman, 1982:182). This is just one illustration to show how law came to reflect the particular interests of those who have power and influence in society. I shall return to the role of interest groups dealing with decision-making processes in the context of lawmaking in Chapter; Foul".
APPROACHES AND SOCIETY TO THE STUDY OF LAW

Aswith the .approach<.:s to [hc stud)' of la\\' ;lIld society. divergcncies of opinion also cha,-actc"izc thc ~uestion of what ,-ole sociologists should play in such endeavors. TiJi~ qucstion, to a substantial degree. polarized (he disci pline. Some sociologists consider their. role primarily as describing and explaining soci_:\lphenomena objectively. The)' arc concerned with the underst;mding of social life and social processes, and the)' go about their research in an alleged value-neutral and empirical f<lshion. They accept <lSsdemific oni)" those theoretical statements whose truth can be pt"Oven empi,-ically. The)" are guided by Max Weber's notion of sociology as "a science which seeks to understand social action interpretively, and thereby to explain it causally in its course and its effects" (Weber, 1968:3). They believe that the discovery of causal laws is the ultimate goal of sociology, but the under standing of people's motives is central. Others, however, go beyond the notion of verstehen (understanding). SocioJogists who claim to be dialectical and critical in their orienfation do not seek merely to describe and explain social events. They, as scientisls, assert their right to criticize. The standards of c,aluation upon which their <;riticism is based, and which these sociologists deduce from the nature of human beings and from considerations about social development, cannot always be empirically tested. To them, empirical research is necessary insofar as it provides and explains the data, but it is, so to speak, only.a first step toward the essential criticism. They believe that the task of sociology
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