Functions of Law

1. Functions of Law Social Control, Social Change and Conflict Resolution

2. Sociological Definitions Understanding Law as Social Control • Law is “…the formal means of social control that involves the use of rules that are interpreted and are enforceable by the courts of a political community.”F. James Davis • “An order shall be called law where it is guaranteed by the likelihood that (physical or psychological) coercion aimed at bringing about conformity with the order, or at avenging its violation, will be exercised by a staff of people especially holding themselves ready for this purpose.” Max Weber • “A social norm is law if its breach is met by physical force in a socially approved and regular way by a socially authorized third person.” Ron Akers

3. Understanding these Definitions: Law as Social Control • First, note that all of these definitions understand the central function of law to be a social control function. • Social control is part of our everyday life, and does not necessarily use law to achieve its ends But law is but one means of social control!

5. Understanding these Definitions: The Problem of Coercion • Sociological definitions of law also grapple with “the problem of coercion.” • Two questions are asked: • Is a provision for the use of coercion a necessary part of a definition of law? • If so, who is authorized to use that coercion? • The answer to these question shapes the nature of definition of law for sociologists

7. Law as Social Change • Defining Social Change • refers to changes in social institutions, role, and status definitions; • i.e., changes in social structure and/or culture • does not refer to: • demographic changes in population • changes in attitudes except as these are transformed into cultural or structural change • Difficulty in assessing role of law in effecting social change • Question of causal direction • Question of spuriousness

8. Conditions for Effective Social Change • Law must emanate from authoritative source • Must present rationale for law in understandable terms which are compatible with prevalent values • Should identify other jurisdictions where changes have effectively been made • Change should take place in a short time • Enforcers should be committed to change • Implementation should contain both positive and negative sanctions

9. Sources of Resistance to Change • Social Factors • Vested Interests • Social Stratification • Ideological Resistance • Organized Opposition • Psychological Factors • Habit • Ignorance • Selective perception • Cultural Factors • Fatalism • Ethnocentrism • Incompatibility • Superstition • Economic Factors • Cost

10. Law as Conflict Resolution • Here, courts seek to resolve disputes between individuals or groups • Importantly, most issues which bring litigants to court are, at root, non-legal • Litigation is typically the last stage of a 3-stage dispute process • Grievance Stage--Existence of conditions that create problems for an individual • Conflict Stage-Aggrieved party confronts offender; dyadic at this point • Dispute Stage--public stage; often legal in nature

11. Methods of Conflict Resolution: Non-Resolution Responses • Lumping it • involves simply living with one’s grievance, usually to avoid conflict • minimizes psychic costs • Avoidance • withdrawing from the relationship • more psychic costs than lumping it, but less than confrontation

12. Methods of Conflict Resolution: Primary Alternative Dispute Resolution Processes [Alternative Dispute Resolution Processes (ADR) are those that do not involve litigation] • Negotiation • Involves two conflicting parties (no 3rd party) • Basic strategy is debate and bargaining • Least disruptive of all resolution alternatives • Not enforceable • Mediation • Involves addition of disinterested 3rd party • Role of mediator is advisory • Assists conflicting parties to find creative solutions • Like negotiation, it is not enforceable

13. Primary Alternative Dispute Resolution Processes (cont.) • Ombudsman Process • Somewhat more involved than mediation • Two roles for ombudsman • hear grievances and facilitate resolution • fact-finder--do research that provides objective evidence to help resolve case • Often ombudsman is employed by one of the disputing parties, which can be problematic • Arbitration • Similar to mediation, but arbitration is binding on all parties • Unlike litigation, arbitration is a private process • Also unlike litigation, arbitration cannot be appealed

14. Hybrid Alternative Dispute Resolution Processes • Rent-a judge • Parties agree to hire a judge, typically retired • Legally binding, but can be appealed • Med-Arb • Hybrid of mediation and arbitration • Cases not successfully resolved by mediation, submitted for arbitration, using same person • Minitrial • Used primarily by large corporations • Attorneys present abbreviated cases, with a 3rd party present • Execs usually try to make decision themselves, but may use 3rd party as mediator. • If can’t reach decision, mediator will advise parties of likely court outcome

15. Litigation • This is always a public process • Involves the court system, with judge as the final decision-maker • Allows only for legal rulings; hence, cannot address many of underlying issues

16. Prerequisites for Use of Courts • Justiciability • Refers to the quality of a case or conflict that makes it appropriate for court intervention • Standing • Quality of the litigant • Only individuals who have a stake or vested interest in outcome can initiate litigation • De Minimus Non Curat Lex • Doctrine that trivial matters will not be litigated

17. Nature of Litigants • One-Shotters--these are usually individuals who have only occasional need for litigation • Repeat Players--typically corporations who are frequently in court

18. Is there a Litigation Explosion? • Some statistics: • In 1999, almost 18 million new civil cases--this is one for every 10 adults • 1977-1999 legal industry grew by 483% • Cost of litigation between $280 and $300 billion annually • Cross-culturally: • Japan--1 lawyer for every 10,000 people • Germany--1 lawyer for every 2,500 people • Sweden--1 lawyer for every 5,200 people • US--1 lawyer for every 260 people • United States accounts for 5% of worlds population, but has about 66% of lawyers