Introduction
You are about to embark on a study of the subject of law. You may be surprised to discover that the search for an accurate , all-encompassing definition of law has gone on for thousands of years and will not end as long as people continue to think about the subject. Today researchers are studying legal systems throughout the world to make them better for all of us. While you may not have an exact definition of law in mind as you pick up this textbook, you certainly are affected by law each and every day.
Every nation in the world has a legal system, and law touches each of us as we go about the business of participating in society. If we are to be effective citizens and participate fully in society, it becomes important for each of us to have a knowledge about and a concern for law.
The Importance of Law
Legal systems have always been important part of every society. In thousands of instances each day, the legal system helps us resolve conflicts, punish individuals who violate more complex, and solve some of our most pressing problems. Indeed , as our society becomes more complex, we rend to rely more heavily on law to guide our conduct.
Just as individuals look to the law as a guide in their personal affairs, so do business people look to the law in their business activities. In the United States today there are more than two million corporations doing business. Many of these corporations are so large that what they do has an impact on the entire world. Examples of firms with a worldwide reach are Ford Motor Company and American Telephone and Telegraph Company. As large as these firms are, they look to the law to help structure their operations. Even though there may be significant differences in the laws of the countries in which these firms do business, the managers expect certain rules imposed by society to be followed in doing business. Without some shared expectations about how people will behave –as spelled out by a society’s legal system—how could a business person expect to run an organization , even for a day ?
What is law
Anthropologists, philosophers, historians, sociologists, and political scientists are only a few of the kinds of scholar who have tried to give an accurate definition of the term “law”. A practicing lawyer would probably give yet another definition. Your own idea of law might include legal craftsmen, such as judges, police, bailiffs, and lawyers; the place where these craftsmen work, such as courts and jails; and the endless stream of books they refer to , such as Black’s Law Dictionary, the criminal codes, and the Uniform Commercial Code’s. Indeed, each of these is a part of the legal system in the United States. But this is not the whole picture .The historical background of law plays a large part in our understanding.
Aristotle built upon the Greek notion that the world was ordered by cosmic law or , to use his term , natural law .He simply meant that there is a law higher than that which is made by mortals—a kind of ideal law. Aristotle tried to connect moral principles and legal principles.
As part of their philosophies of law, Aristotle and Saint Thomas Aquinas shared a belief in a transcendent law given to society. Both men saw a relationship between moral justice and law. Others also have worked with the concept of natural law. To pursue this perspective on the law somewhat further , your thoughts may be closer to those of Friedrich Karl von Savigny.
Savigny was instrumental in developing the historical school of jurisprudence .This school of thought suggests that law evolves as a result of particular nation’s entire history; that lawyers or judges simply interpret the historical direction of the nation. Even legislators, Savigny would suggest, merely out into words that which is embedded in the larger web of a given nation’s history. The name that Savigny gave this expression of the spirit of the people is Volksgeist. Critics of the historical school of jurisprudence in general and of Savigny in particular ask whether law simply reflects the common consciousness of the nation, as he suggests, or helps to mold the future.
The most important feature of Savigny’s work for our purposes is that it marked a move away from traditional generalizations about law toward a more careful pattern of study of society. Indeed, contemporary social scientists are indebted to Savigny for his work .Strudents interested in learning more about the historical school of jurisprudence might look into the writings of Sir Henry Maine another legal philosopher of similar persuasion.. He believed that one could analyze various historical stages of legal development.
Why Is Law Investigated
There are a number of different ways of viewing law, each of which has a particular strength or weakness. Yet contemporary legal scholars are always searching for new and workable models of law that might be useful in organizing and analyzing the information that they are continually uncovering. Why are social scientists dissatisfied with the traditional models?
Today’s rapidly changing world presents us with issues that were rare or unheard of only a few years ago. This is particularly true in the world of work. In our society, people are calling upon business to have a heightened sense of social responsibility, and law is ever more frequently the vehicle used to move business people in the desired direction. Products liability cases reflect this trend.
We have all been disappointed by products at some time in our lives. Some of us have found unusual substances in soft drink bottles or have been hurt by machines that contained defective parts. For many years consumers had little recourse against companies that contained defective parts.. For many years consumers had little recourse against companies that put defective or harmful products on the market.
In recent years, the buying public has demanded that this burden be lifted in instances where a particular product is unreasonably dangerous to the consumer, so people have turned to law to resolve this difficulty. The legal system has responded to this social pressure by increasing business responsibility. In more than 60 percent of our states, those who sell products is defective, even if due care was used in manufacturing the item.
Clearly, law is not a set of unchanging rules; rather , it changes to reflect movements in our society and, at times, even leads the way for change.
How Is Law Perceived
As we discussed above, there are a number of different ways of understanding what is meant by the terms “law”. In this section we present a view shared by a significant number of contemporary writers about them unless we deviate from the norm.
Norm
A norm is standard shared by members of a group about how they should behave. We all adhere to standards of behavior that we learned as members of a family , a town , and our society as a whole .Many of us have learned these standards so well that we do not even consciously think about them unless we deviate from the norm .
Recently a music group called Motley Crue created quite a stir when they violated a norm by wearing exaggerated makeup and having unusual hair styles. Many people consider such actions outrageous and looked upon them with scorn. Other simple examples of norms are that people should have three meals a day, that dogs in fire stations should be Dalmatians, and that nurses should wear white uniforms while working in hospitals.
The kind of norms just mentioned are largely ”informal”. That means that although they define how a person should behave, they are really casual in that enforcement is not usually strict and punishment for deviation is minor .The norm dictating that forks be placed on the left side of a plate is another informal norm. Although you might raise some eyebrows or be chastised for failing to follow the correct procedure , you probably would receive, at worst, nothing more than a serious reprimand.
Norms may be very “formal,” and deviation may be punished severely. Any number of standards for performance fit into this category. As a society we do not approve of one person taking another’s life, nor do we approve of embezzlement, forgery, and arson. In each case of the code bring punishments ranging from fines to loss of one’s own life..
Norms and Freedom of Choice
The term sanction may be used to describe the techniques for maintaining social control over the members of a group. As was suggested above, a violation of a society’s criminal code can bring a sanction ranging from a fine to loss of one’s own life.
Psychologists tell us that there are also rewards. When a person does something particularly good, he or she is rewarded. Children know that if they do certain chores they will be rewarded by their mother or father. A sales employee knows that achieving a certain level of sales in a month will mean receiving a bonus, which is a reward. An employee who works hard all year long may expect a reward in the form of a raise in pay or a promotion.
Basically, people are free to choose how they behave. Whether you wear a sport jacket and tie to school or a sweatshirt and blue jeans is a matter of your own choice. Not all people choose to follow the norms prescribed by their peer group or by society. A course in psychology would probably help you begin to understand the reasons for that kind of decision. Here it is important to note that all of us have a range of choices from which we may choose our behavior. If we choose within the norms, we are rewarded; a choice outside the norms results in a sanction.
Conflict Between Norms
Difficult choices arise when the norms of one group of people come into conflict with society’s formal norms. In certain groups ---- particularly among young people –individuals are pressured to conform to norms that advocate drinking or the use of drugs. The larger society has norms that severely punish such behavior; hence, there is a potential for conflict.
The strain can be great in business as well. A company may be able to maximize profits by polluting the atmosphere instead of purchasing expensive pollution control equipment, and many firms have a norm dictating that managers should try to maximize the company’s profits. Even so, in the United States today, many norms have developed that apply powerful sanctions to firms that destroy the environment. Managers may find themselves in a terrible bind, torn between competing norms.
Law as a Form of Form
Some social scientists argue persuasively that law can exist in any number of situations. For example, in a family, parents “make laws” that children must obey; in a company, the personnel director makes rules that employees must obey. In fact, whenever a group gets together, law may appear. These laws, which are generated in ”private legal systems”.
This text, however, takes the position that law is one type of norm or, more specifically, that norms established by the official leaders of society may be characterized as law. We will limit our discussion to the study of the U.S legal system --- those norms established by any part of our studied by people interested in the sociology of law.
Legal systems
Once you understand the concept of law, you can imagine a number of different ways of putting together the laws of a particular society. Lawmakers can put together laws to create a very democratic or a very autocratic society. For example, in the United States the system os government allows individual citizens to participate extensively in creating laws. On the other hand, in Iran the legal system was dominated for years by the whims of its leader Ayatollah Khomeini. In fact, there are an enormous number of different ways to construct a legal system.
Karl Llewllyn (1893--1962) developed what he called the law-government continuum to illustrate the point that legal systems can be constructed in an infinite number of ways. He suggested that, in a legal system at the government end of the continuum, decisions would be made according to the arbitrary whim of a leader. Laws would exist or disappear depending on the leader’s mood. Llewellyn called this extreme situation the government pole, while the other end of the continuum was the law pole, as diagrammed in Figure 1.1. At the law pole, the rules of law would be so complete that there would be no need for human judgment. Whim would play no role in such a system.
Both ends of the continuum are extreme systems, and it is difficult to imagine any modern legal system at either extreme. It is possible, however, to place nations closer to one pole than the other. For example, countries controlled by a dictator are closer to the government pole than to the law pole. The United States and Great Britain are closer to the law pole.
Figure1 The law-government continuum Legal systems can exist all along this line
Law pole -------------------------------------------------------------------Government pole
United States actively do business all over the world. The laws governing business transactions vary from nation to nation. Managers should be very careful not to assume that rules of law and interpretation of then are the same worldwide.
Words and expressions
1embark 从事，开始工作 2all-encompassing完整的 3conflict冲突 抵触争论 4 impose把……强加于 5 anthropologist人类学家6 sociologist 社会学家7 bailiff法警 8 notion观念 见解看法 9 morals伦理学 10 pursue追求 11 perspective
（观察问题的）视角 观点想法 12 instrumental起作用的，有帮助的 13 jurisprudence 法律体系14 evolve使逐步形成 15 legislator立法者 16 embeded 把……嵌入17mold塑造 18 generalization推论，普遍理论19 persuasion 说服20recourse依靠依赖21norm 标准 规范 准则22deviate背离偏离23outrageous令人厌恶的24dictate 命令25 reprimand 训斥26 embezzlement盗用，挪用公款，侵吞财务 27 forgery 伪造，假冒，伪造（签字等）28 arson放火（罪） 29 sanction （使法律行为，准则等）有约束力30 chores家庭杂务31autocratic独裁的专制的32whim 异想天开的
1 legal system法制 2 effective citizen 合格的公民3 to guide one’s conduct 指导某人的行为4 societal norms 社会规范5 to look to sth盼望指望展望 6 pressing problems紧迫问题7spell out 讲清楚，详细地说明8 a worldwide reach世界范围9 Uniform Commercial Code美国统一商法典10cosmic law宇宙法则11practising lawyer执业律师12legal craftsman法律界人士13 the criminal codes刑法典14 to build upon 逐步建立 逐步建设15moral principle 道德准则