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CURRENT INTELLECTUAL MOVEMENTS IN LAW AND SOCIETY

As discussed in Chapter 1, sociological deliberations of the role of law in society generally take place in the context of two ideal conceptions of society found in the larger field of sociology: the consensus and conflict perspectives. The functionalist perspective on the role of law reflects sociology’s consensus perspective, while the conflict and Marxist perspective on the role of law reflects sociology’s conflict perspective. Most law and society scholars opt for either a version of the functionalist or the conflict and Marxist approach to law and the legal system. We begin this section by examining these views’ relevance for understanding law and society.

THE FUNCTIONALIST APPROACH

Functionalism derives from the work of early sociologists, most notably Durkheim, and was the most influential sociological theory before the 1960s. Functionalism views society in the same way that biology views the human body. Just as the body consists of limbs, organs, and other bodily parts, so does society consist of social institutions and other components. Just as the body’s many parts each contribute to the health of the body, so do society’s components each contribute to the health of society.

The following assumptions summarize the basic tenets of functionalism (Van den Berghe, 1967):

  • 1. Societies must be analyzed "holistically as systems of interrelated parts."
  • 2. Cause-and-effect relations are "multiple and reciprocal."
  • 3. Social systems are in a state of "dynamic equilibrium," such that adjustment to forces affecting the system is made with minimal change within the system.
  • 4. Perfect integration is never attained so that every social system has strains and deviations, but the latter tend to be neutralized through institutionalization.
  • 5. Change is fundamentally a slow adaptive process, rather than a revolutionary shift.
  • 6. Change is the consequence of the adjustment of changes outside the system, growth by differentiation, and internal innovations.
  • 7. The system is integrated through shared values.

In a classic application of functionalism to a legal issue, Emile Durkheim (Durkheim, 1962 [1895]) said that deviance could serve certain social functions in a society. Durkheim had in mind the idea that a society needed deviance to continually reaffirm its boundaries of propriety He also pointed that without the existence of sinners, a church could not exist. Their very existence provides the opportunity for believers to reaffirm the faith that has been offended by the sinner. Thus, the worst thing that could happen to a church is to completely eliminate sin from the world and completely propagate the faith to society.

By analogy, society needs deviance for it to especially appreciate the value of acceptable, “normative” behavior.

Functionalism is also present in legal anthropology. For example, in The Cheyenne Way,

Karl N. Llewellyn and E. Adamson Hoebel (1941) outlined their law-job theory about society as a whole. For societies to survive, there are certain basic needs that must be met. It is within this context that the wants and desires of individuals, their “divisive urges,” assert themselves. The conflicts produced are unavoidable but, at the same time, essential to group survival. “The law-jobs entail such arrangement and adjustment of people’s behaviour that the society (or the group) remains a society (or a group) and gets enough energy unleashed and coordinated to keep on functioning as a society (or as a group)” (1941:291). They consider the law-jobs as universal, applicable, and necessary to all groups and to all societies.

Functionalism is evident in other legal writing as well. For example, in Jerome Frank’s (1930) Law and the Modern Mind, the entire discussion of the “basic legal myth” and the associated “legal magic” is grounded in an examination of their functional consequences for the legal system. Similarly, Thurman Arnold’s (1935) concern with the role of symbolism within legal institutions is consciously functionalist. Felix Cohen (1959) also resorts to functional analysis in his elaboration of “functional jurisprudence.” Also, the writing of Lon Fuller (1969) on law morality, Julius Stone’s (1966) Law and the Social Sciences, Philippe Nonet’s (1976) ideas on jurisprudential sociology, and Andras Sajo’s (2003) study of the functions of governmental corruption in post-communist transition all illustrate the functionalist approach to the study of law and society.

The functionalist approach has been criticized both for alleged theoretical shortcomings and on ideological grounds. Criticisms included complaints that the whole notion of function is oversimplified. Questions such as “Functional for whom?” are raised, as the interests and needs of different groups in a society are often in conflict: What may be functional for one group may be dysfunctional for another. Other critics say that functional analysis is a static, antihistorical mode of analysis with a bias toward conservatism. As expected, a sizable amount of literature in the field addresses these charges (e.g. Turner and Maryanski, 1995). Despite these criticisms, the functionalist perspective has much to offer for the understanding of law and society.

 
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