Law in Contemporary Society

Expanding on the Behavior of Law

I wanted to examine the Behavior of the Law more closely to see what, if any, implications it has about law as a practice and lawyers in general.

My first supposition is to assume there is a correlation between the quantity of law and the quantity of lawyering done. By lawyering, I mean the work of lawyers including research, writing briefs, motions, responses, conducting depositions, etc. Of course, this isn’t a perfect correlation because many events that count as law in Black’s sense are not events performed by lawyers. So while an arrest would probably lead to lawyering, an arrest is work done by a police officer not a lawyer.

If that proposition is true then, then it would follow that in more unequal societies there is more lawyering and consequently more lawyers, more lawyering happens between people of high rank than between people of low rank, and more lawyering occurs downward than upward. All of these propositions strike me as true, but the whole exercise feels incomplete.

I’m left wondering about causality in this model. For instance, what’s the real relationship between law and lawyering? Law generates lawyering, but how much law does lawyering generate? Would the same amount of lawyering done downward generate more law than lawyering upward, or are lawyering and law proportional so that lawyering upward would generate as much law as lawyering downward, but there is simply less lawyering done upward, presumably because of the difference in resources and wealth. Essentially the question is, is law a function of lawyering, or vice-versa? Or are they co-dependent?

Also, what’s the relationship between stratification, law, and lawyering? Black’s model takes the stratification as a given and explains law from it. But Black’s model doesn’t say anything about what happens if we decrease the amount of downward law. So while downward law may be greater than upward law, what if, given the same stratification level, we decrease the strength of downward law, how does that affect the stratification structure of the society? My inclination is to believe that would change the stratification structure itself to be more compressed and less unequal. Or we could also increase the strength of upward law. This decrease/increase in strength would be done, I think, through lawyering.

I think introducing lawyering and explaining the relationship between lawyering and law, and also the absolute level of level of law/lawyering in addition to their relative levels might generate some helpful insights. Some of the ones that came out here, assuming the propositions are true: If you want to change the stratification structure, decrease the strength of downward and increase the strength of upward law. So then, do more upward lawyering and less downward lawyering.

-- EdiRumano - 12 Apr 2012

Which, re-phrased, is to say that more people doing pro bono/nonprofit/etc. type work than working for wealthy people changes the stratification structure -- a rather intuitive conclusion. Which is my problem when expounding on The Behavior of Law w/r/t what we can do differently as lawyers using the law. Most of its explanations about the law are rather intuitive.

Eben assigned it so that he could highlight the point that the law is a weak social force, and I think that is where the true value lies in the piece. Taking for granted that, as lawyers, we are looking to effect change in society, we should appeal to things outside of the law to see that change occur. Just like how Tharaud could get settlements simply by sending a complaint, solutions can be found without ever going through the formal legal process. So changing the stratification structure can be done by manipulating other social forces, too.

-- MatthewCollins - 13 Apr 2012

The Behavior of Law makes me think from another perspective about crimes. Because deviant behavior is defined by social control in its quantity and style, crime rate probably cannot justifiable reflect a group’s dangerousness. We are all familiar with the argument that in order to protect criminals’ freedom of choice, they should be punished according to the laws. But due to the variation of laws in stratification and morphology, certain groups’ conduct is deemed more deviant than the other, which has no relation to individual psychology or freedom of choice. This article reminds me of Judge Day, when she has to sentence a teenager to years of imprisonment for theft.

-- MeiqiangCui - 6 June 2012


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r4 - 22 Jan 2013 - 18:09:57 - IanSullivan
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