first reading I viewed was chapter two of Kitty Calavita’s book, “Invitation to
Law and Society”. Throughout this chapter, Calavita showcases work done by
several intellectuals such as Maine, Durkheim, Marx and Weber. She uses these
sociologists’ thoughts to show that law evolves along with the society as a
whole. Calavita states that these evolutionary social theorists “posited that legal
systems develop in concert with socioeconomic systems, changing form and
becoming more complex over time. According to this thinking, the modern Western
legal system represents the current stage in a linear evolution and corresponds
precisely to the social and economic forms that emerged with it” (Calavita, 12).
Kitty Calavita goes on to explain Henry Maine and his ideology that legal
systems go through stages, which is also mentioned in Sutton’s “Law/Society:
Origins, Interactions and Change”. Later
in the chapter, Calavita describes the difficulty of defining what exactly law
is and argues that portraying laws as written rules makes it difficult to apply
it to non-Western societies. She concludes the chapter with returning to the
question of how to define law. “Whether we should make law synonymous with
rules for social behavior… or reserve the word to refer to specialized and
formal legal institutions” (Sutton, 29). I believe it will be a very long time
until we can assign law to one of those two definitions. Or can we live in a
society where it can be defined as both?
next few chapter I read were written by John Sutton, in his book “Law/Society:
Origins, Interactions, and Change”. Sutton begins chapter two, along with 3 and
4, talking about legal development. He mentions the rise of evolutionary
theories after Darwin’s “Origins of Species”, and states that evolutional
change theories share three characteristics. The first being, with progressive
change, both human societies and biological species advance together. “Like nature,
human social life is a process of competition in which only the fit survive…
this competitive process encourages more complex and adaptable forms of society
to persist, and causes simpler societies to die out” (Sutton, 26). The next
characteristic all evolutionary arguments about social change share is that
these models tend to serve a function. The paths of inequality and domination
that appear in societies are seen as “both natural and unavoidable” (Sutton, 26).
Finally, theories tent to be concerned with the drama of the individual history.
Sutton goes on to explain Maine’s stages of legal development, status to
contract. The simplest societies are patriarchal. Because decisions are not grounded
in a set of principles, an outcome cannot be expected. The only challenges come
from heads of other elite families or nobles. This is a distinctive shift to
what Maine calls “customary law”. In this system, rules are validated by their persistence
in social customs. The third stage is the Era of Codes. This was initiated by
the invention if writing and the spread of literacy. This changed the legal
content because legal rules can now be recorded. Sutton then goes on to talk
about Durkheim and how he said that society is a moral system. According to
Durkheim, social facts have two features: exteriority and constraint. Later in
the chapter, Sutton compares Maine and Durkheim. Maine and Durkheim agree that
law “changed its form to recognize and institutionalize the emergence of the
individual as an atom of society” (Sutton, 49). Also, they agreed that legal
development is an indicator of societal evolution. Durkheim’s thought of crime
is brought up as well and explained in detail. At the end of the chapter Sutton
asks the question “is law a good indicator of social solidarity?” (Sutton, 53).
chapters 3 and 4, Sutton begins explaining Marxian theories of legal change.
Sutton explains the differences between criminal, civil and small claims courts
and then goes on to explain major themes in Marx’s work that relate to legal
development. Marx says how humans adapt to different natural environments by
creating a social environment. Sutton brings up Marx’s ideas of alienation and
being, and states “the irony of capitalism is that it creates unlimited potential
for human development and at the same time hinders that development by
producing warped social relationships” (Sutton, 65). Marx, according to Sutton,
distinguishes between two major components of social structure, the economic
structure and the “legal and political superstructures”. Sutton concludes
chapter 3 with several weaknesses to Marx’s approach to legal change, but also
how with Marx’s thinking, we know that “class, and inequality more generally,
is clearly an important factor in the making of law” (Sutton, 97).
4 writes about the issue of our knowledge, or lack thereof, of how class
interacts with other variables present. Sutton talks about Max Weber’s
Sociology of Law, and about Weber’s definitions on power and authority. Power cannot
be absolute to a leader, and no leader can count on total control of an
individual. Authority, according to Sutton has two characteristics; “every
authority relationship… has built-in limits to what kinds of orders may
legitimately be given” (Sutton, 103). Also, “authority is by far the most
stable form of power” (Sutton, 104). This is because people feel like they “ought”
to obey, instead of feeling like they “have” to. This results in people feeling
that they make their own decision to obey. In following subparagraphs within
chapter 4, Sutton brings up Weber’s classifications of legal systems, rational
and irrational law. A table of the definitions of each part of Weber’s typology
of forms of law is included as well. Sutton concludes paragraph 4 with the
limitations of Weber’s sociology of law and how. In modern times, there are
several groups who are identified as “special legal subjects” (Sutton, 131).
These policies “defy the principle of formal equality that underlies formally
rational law” (Sutton, 131). Two additional issues are brought up that go
against Weber and his theories. In an effort to try to shorten my response, I
attempted to simplify my descriptions of Sutton’s and Calavita’s paragraphs.
Each and every one of the paragraphs read were very informative, and difficult
to condense into one page.