Ellickson Chapter08 Notes


Shortcomings of Current Theories of Social Control=

1.1 Beyond Legal Centralism: A Critique of Law-and-Economics Theory (137)==

1.1.1 The Legal Centralist Tradition (138)===

"The Government was believed to be in charge of rules and enforcement of legal centralism. Hobbes is most known as legal centralist, Ronald Coase believed that individuals could work out their differences without the aid of a central mediator however he too fell into Hobbes’ thinking and failed “to note that in some contexts initial rights might arise from norms generated through decentralized social processes, rather than from law” (139)

Calabresi notes that the state/government is the center in the order of social hierarchy, the state is responsible for determining a group’s placement within or outside of society as well as what exposure a group has to goods and services that could bring them close to the center and which group is ‘entitled’ to those goods."


1.1.2 Some Evidence that Refutes Legal Centralism (141)=== Substantive Norms often supplant substantive laws (141)====

Overview: Ellickson's theory shows that most people look primarily to norms, not to law, to determine substantive entitlements.
Key names mentioned in this section: Laurence Ross, Vilhelm Aubert, Ross & Niel Littlefield, John Phillip Reid, and Elizabeth Hoffman & Matthew Spitzer. The pervasiveness of self-help enforcement (143)====

People often resort to the use of self-help methods first in an effort to resolve disputes. People exercise "… options of 'exit,' 'voice,' and 'loyalty' to influence others around them. … The legal-centralist assertion that the state monopolizes, or even aspires to monopolize, the use of force is patently false."

These ideas come from Albert Hirschman and Donald Black The scantiness of legal knowledge(144)====

"Ordinary people know little of the private substantive law applicable to decisions in everyday life."

"Surveys of people invariably show that respondents have scant working knowledge of private law."

"Regarding "the 1975 Tarasoff Supreme Court decision it is shown that 96% of California therapists and 87% of therapists in other states knew the decision by name
but did not understand the implications of the decisions in their personal practices or their legal liability."

*Important names to research or get information on are Vilhelm Aubert and the Study of Givelbei, Bowers and Blitch.
*Terms to look up may be private substantive law. The infrequent use of attorneys to resolve disputes (145.7)

1.2 Beyond Exogenous Norms: A Critique of Law-and-Society Theory (147.3)

*Law & economics is like a desert, law & society a swamp : Both in need of critical exposure

*Down with legal peripheralism because it treats the law as just ineffectual
*Legal centralism doesn’t quite have it right either
*Best way to think about it—the law is not “invariably toothless”
*Examples: adoption of closed range ordinances deterred traditionalist ranchers from running their field at large
*Also: workers compensation has been shown to affect workplace fatalities
*Norms are treated as exogenous rather than dependent variable whose contents need to be explained
*Law and society scholars have a long way to go in creative a collective general theory of social control
*We must develop a theory of content of norms.
*Important names: Willian Graham Sumner, Donald Black, John Griffiths, William Felstiner

1.2.1 Sociological Theories of the Interaction of Law and Norms (147.3) Legal Periperhalism and the evidence that refutes it. (147.6)

Ellicksons says that sociologists should not be so "dismissive" of the legal system, as laws have affected what he refers to as social engineering. He uses several examples to illustrate his point, notably how civil rights laws affected the social world through desegregation.) Theories of the division of social control labor (148)

1.2.2 Theories of the content of norms (149 Functionalist sociology and anthropology (149)

Functionalism appeared in Social Darwinist theories. Some problem associated with Functionalism are: (1.) circular thinking. (2.) Functionalists are not clear about how judging norms are functional for a group, and (3.) Functionalists see humans as a single homogeneous group.

An important person is Durkheim, as an example of a theorist who was influenced by Functionalism. Interest group Theories of norms (152)

Interest group theories of norms is about the sociological theory that members of powerful interest groups are trying to manipulate the content of norms to serve their own interests. The main issue with this theory is that the claimed influence, how and when it's taking place, cannot be separated from the norm itself, and most social norms appear content neutral and harmless.

Special people mentioned: Isaac Balbus, Howard Becker, and Sociobiologist Paul Rubin Theories that some norms are genetically hard-wired (153)

Paul Rubin suggest that "evolutionary processes have shaped human ethics," and that "genetically influenced" norms are adapted to their situation. However, due to the "rapid transition to modern mass society," the narural selection process have not been able to update relevant genes.

Not many academics adhere to the theory that norms are genetically hard-wired because the concept mirrors functionalism in the way it assumes the "evolutionary process selects survivor at the level of the group and not the individual The usual sociological approach: norms as exogenous givens (154)

Ellickson best summarizes his section that norms are just given when he states, "sociologists tend to work '''not on what norms are''' but on how norms are transmitted." His key example of this is George Homan's reference to William Foote Whyte's norm of reciprocity, which states, "…if a man does a favor for you, you must do a roughly equivalent favor for him in return." The point Ellickson illustrates here is that there is never a given reason as to why this is the norm.

Important names to know from this section: George Homan and his work ''The Human Group''; William Foote Whyte and his work ''Street Corner Society''.
With contributions from class of 2009: Rebecca, LaTasha, Emilee, Lacy, Caroline, Yolanda, Yvonna, Charli