Summarize

Introduction to William J. Chambliss Chambliss' \"A sociological analysis of the law of vagrancy\" (1964) is a classic example of a study in the field of the soci- ology of law. The sociology of law views the law as a product of social forces. The processes of making laws, interpretation and administration of laws are examined from the perspective of how society is organized and what forces are at work in society. There are many different theories about how societies develop and what social forces are important, and so the sociology of law includes several different sociological perspectives. The sociological approach to law stands in marked contrast to the way law is viewed in American law schools. At the end of the nineteenth century American laws school adopted the philosophy that law is a rational science. Law was seen as mostly a product of logic created by ra- Page 113 of 356 31% tional lawmakers as a way to protect the morals and customs of a nation. Logical laws, based on morals and customs, would make it possible for people to live in society with due regard for each other's rights. Society itself was held together by the \"social contract,\" which was the agreement that each member of society would respect the rights of others and would give up some freedom (e.g., give up the right to get personal revenge when wronged) in exchange for protection by lawful government and vindication when wronged. What held society together was basically a legal contract which embodied generally accepted morals and customs. The law was expected to codify and apply this contract in a logical way. The proponents of the logical approach to law believed that laws reflected the logical requirements for a society to function efficiently. A particular law was logical insofar as it was logically necessary to maintain order in society. It was also believed that new laws needed Page 113 of 356 31% to be logically connected to older laws. If society developed, law would develop too. But it had to be a matter of orderly devel- opment from one stage to another, not a sort of revolution which would sweep away the old and replace it with some- thing entirely different. Law would not be a reliable guide for people's behavior if it was subject to sudden, radical changes. In the area of law, it was important to re- spect the history of laws and follow legal precedents when applying law to new circumstances. A fundamental principle of legal reasoning was to judge actions from the point of view of \"the reasonable man.\" According to this legal principle, when determining guilt the key issue was not what personal or social factors cause an individual to commit an act but instead what the reasonable man would have done in the given situation. The legal question was not, Why did this particu- lar person do this act? Rather, the legal question was, Would the reasonable man have done this act? If the reasonable man would not have done it, then the individual who did it should be punished. \"The reasonable man\" did not have a life history or any individual characteristics. This somewhat fuzzy legal ideal of the reasonable man made it unnecessary to deal with the peculiarities of individuals. The law became divorced from the real- ities of specific people, times and places. However, at the beginning of the twen- tieth century Roscoe Pound, the Dean of Harvard Law School, started a movement which eventually turned into \"legal real- ism\" in the period from 1920 to 1940 and later prompted \"critical legal studies\" in the 1970s. Legal realism was a belief that law should be based less on a type of logic and more on events in the real world. The real world approach shifted some of the emphasis from logic to the social policy implications of laws, from precedents to the present case, and from following the logic of the law to providing justice in fact, not merely justice in form or proced- ure. This shift to the real world view of law had more effect on the work of legal historians and sociologists than on the work of law schools, lawyers, and judges. Historians and sociologists began doing studies of how specific laws developed and how they affected society. One of the earliest critical studies was Chambliss' work on vagrancy laws. Nineteenth century Europeans had already pioneered studies of law in rela- tion to the organization of society and social forces. In 1861 Sir Henry Sumner Maine published Ancient Law, a study of how law changed with the development of western society. Maine found that a slow but radical change in society had produced a radical change in law. Ancient law was based on a person's social status; modern law was based on contracts. In ancient societies people were born into a particular place in society, whether as rulers or nobles or craftsmen or peas- ants. People were expected to live out their lives in the roles to which they had been born. The function of the law was to specify the rights and obligations of people in their different roles. For ex- ample, when English knights surrounded King John and demanded that he sign the Magna Carta, it was to ensure that the nobles would be treated by the law as nobles and brought to trial by juries of their peers, other nobles. Laws were made and enforced to maintain the order in society, including keeping each person in the appropriate social status. As long as society was characterized by people living their entire lives in fixed roles, law based on the status of people seemed to be appropriate. When society developed to the point where social mobility became possible, law also changed its basis. According to Maine, the basis of law changed from status to contracts. Instead of a person's obligations being based on a fixed place in society, a person's obligations were now based on agreements made with others. A man no longer tilled fields for the local lord because the man was a serf or a peasant; he now did it because he had a contract, even if the contract was not in writing. The theory of the \"social contract\" was already a familiar theory by Maine's time, so that even penal law could be viewed as a sort of contract which people entered into to provide mutual security. Thus, the function of law in relation to society was to define an indi- vidual's contractual obligations in order to assure that people would know and ad- here to their mutual obligations. Max Weber (1864-1920) was trained in law and taught legal history at the University of Berlin, but he considered himself primarily a sociologist. He con- sidered law, politics, and economics to be interrelated. Weber concluded that the development of law in Europe was related to the development of commerce and government. As the amount of com- mercial trade increased in Europe and trade for money became more common than bartering goods for other goods, it became more important to develop a sys- tem of law which could regulate matters between strangers and provide all with some assurance that the agreements between them would be enforced by gov- ernment when necessary. Again law was essentially based on contracts. Weber pointed out that over time gov- ernments became more organized into bureaucratic agencies and needed more standardized ways of dealing with larger numbers of people. A kind of law which stripped people of their individuality and treated all in the same manner made it easier for governments to be efficient. This idea that all persons are \"equal be- fore the law\" was a way to make all per- sons the same in the eyes of the law. This made it easier to administer the laws. In his analysis of the laws of vagrancy Chambliss took a Marxist approach to law based on Karl Marx's theories that society is undergoing a class struggle based on economics. According to Marx, people who had wealth and who wanted to make profits through investments were capitalists. The capitalists werein a struggle with people who lacked wealth and who just wanted to trade whatever goods they could produce in exchange for the other goods they needed to live a decent life. In a highly industrial society, the class struggle described by Marx was epitomized in conflicts between the owners and the workers in large factor- ies. In the nineteenth century factories were usually owned by individuals, not stock holders, and run by their individual owners, not by hired executives. The cap- italist owners tried to maximize profits by paying low wages; the workers tried to increase their wages so that the fruits of their labors would be theirs. As far as Marx could see, the contracts between capitalists and workers were not proper contracts because workers were forced by their poverty to accept whatever wages capitalists would give. The laws were created and administered mostly by the capitalists to keep the workers down. Chambliss' study of the laws of vagrancy traced the origins of the vagrancy laws to an older struggle between wealthy land- owners and peasants. Several different historical trends and events figured in Chambliss' account of the English vagrancy laws. One was the plague which reached England in 1348. Plague epidemics were a recurrent prob- lem in Europe throughout the middle ages. The particularly strong wave of plague which reached England in 1348 had been brought from the Black Sea to Venice by an Italian trader. It spread north gradually for about two years before reaching England. As the plague spread north, kingdom after kingdom enacted laws to force able-bodied people into agricultural work to avoid famine throughout the kingdom. Chambliss' account of how vagrancy laws were used in later times was rather incomplete. The later history supported Chambliss' main idea that the laws were instruments of the wealthy. Vagrancy laws became a dominant feature of daily life in England again and in America with the dawn of the industrial revolution in the 1800s. The first large factories were mostly textile factories. Their machinery required many coordinated laborers at all times. A missing laborer meant that manufacturing operations had to be halted. In England in the 1830s factory owners were able to pass legislation com- pelling people to work because factory owners themselves were a large legisla- tive block in the House of Commons in Parliament. Some wealthy factory owners also acted as local Justices of the Peace dealing with recalcitrant laborers. Towards the middle of the 1800s the industrial age boomed in America. Unlike some English factory owners, American factory owners were not usually legis- lators themselves. They used indirect methods to influence the making and enforcement of vagrancy laws against unreliable laborers. One tactic was to promote legislation making it a violation of vagrancy laws to be in public without a large amount of cash, the equivalent of more than a week's wages. In effect, when police were inclined or induced to enforce the law, people could be arrested for not going to work. At a later time the same vagrancy laws were used in a variety of situations unrelated to work, mostly to get certain people off the streets. Chambliss' article on the vagrancy laws was written while he was work- ing on his Ph.D. in sociology at Indiana University and taking courses in the law school. It was written for a course on labor law. It was written and pub- lished during a particularly intense anti- communist period in the United States in the course of the \"cold war\" between the United States and the Soviet Union. The law professor was very conservative politically and did not like the paper much. Chambliss took account of some criticisms in a later revised version of the article, but his ideas were presented most clearly in the original published version, which is the version reproduced here. Chambliss' overt Marxist approach also made the article unpopular with politically conservative readers after it was published. In the ensuing decades Chambliss continued to research, write, and teach original and thought provoking approaches to a wide variety of issues in the field of criminal justice. He wrote and edited more than twenty books and lectured all over the world. He was Presi- dent of the Society for the Study of Social Problems and of The American Society of Criminology. He was awarded the high- est honors of the American Sociological Association and the Academy of Criminal Justice Sciences. In addition to being a professor in the Department of Sociology at The George Washington University, he held numerous other scholarly positions, such as research director of the National Crime Control Commission from 1993 to 1995. Chambliss' article is an invitation to think critically about the role of law in society and the law making process. Outside of law schools, very few people now think of law as primarily a rational science. Many laws are quick reactions, sometimes overreactions, to highly publicized events when people expect legislators to do something. Most people are aware that legislators often use lawmaking to impress the public and garner votes even when the lawmakers themselves realize that they are passing a law which will eventually be stricken down by the courts as unconstitutional. Most people are at least vaguely aware of the role of special interests and lobbyists in the lawmaking process. Political sci- entists generally view American society as an \"interest group\" society in which various groups of people compete against other groups to further their own inter- ests with the expectation that the best attainable society will result from this competition and conflict among interest groups. Chambliss' article raises ques- tions about how much powerful interest groups can control the law making process to maintain their own interests against the interests of less powerful groups or disorganized individuals. These conflicts become most visible in the cases of particular laws which reflect basic societal conflicts, such as laws regarding abortion, drug use, voting procedures, franchises, labor laws, health and welfare legislation, gun control, estate taxes, etc. Beyond all the particular legal controver- sies is the more fundamental unanswered question of what the role of law is, or ought to be, in a democratic society