Turkel, Chapter 8 p. 151 These examples point to a core theme in our study of law and society: Labor, like virtually all human activity, is socially and legally constructed. The work that people do is accomplished under social, legal, cultural, and historical conditions that they themselves have not chosen or made. We make our lives through our work under conditions that were made by other people and that we recreate. p. 152 Legal definitions do not exist in a vacuum; rather, they exist under particular social, economic, and historical circumstances.
One of the most significant changes has been in the very definition of a job. p. 153 Central to this analysis are court decisions and legislation that have defined workers’ rights and that have created tensions between courts and Congress.
Legal Definitions of Free and Unfree Labor p. 153 Before work was legally constructed under contract law, it was defined through master-servant law, also known as agency law.
The labor contract defines and maintains the obligations of the employer and the employee, supporting work as an activity that people provide for wages. p. 154 In the labor market, employers and employees bargain with one another freely and regulate their relationships and wages without the use of direct coercion.
Unions and Management: Labor Law at the Point of Production p. 155 In U.S. history, the relative power of workers and bosses at the point of production has focused on laws regulating the rights of workers to form unions.
The legal definitions of unions and their rights to represent workers, organize, bargain with employers, and engages in actions such as strikes have undergone important changes over time. p. 156 The application of criminal conspiracy doctrine to unions was overthrown by the
Massachusetts Supreme Court in 1841 in Commonwealth v. Hunt.
In order to limit the power of courts to issue injunctions against their activities, unions tried to get state legislatures and the U.S. Congress to pass statutes that would recognize the rights of workers to form unions and prohibit the firing of workers who organized unions. p. 157 The Court said that legislation regulating unions went well beyond the constitutional power of
Congress to regulate interstate commerce: labor and labor unions were features of producing goods and services within the individual states and, therefore, were subject to state regulations and not federal regulation.
The Court rejected this argument for unions, it affirmed that inequality of private property and contract.

p. 159 The Norris-La Guardia Act resisted the courts’ exercise of almost exclusive control over labor unions.
Policies toward labor unions were part of the effort to stimulate mass consumption. p. 160 Among the most important features of the Wagner Act was the provision that employees had the right to organize unions, to bargain collectively with their employers through unions of their choice, and to exercise powers such as picketing and strikes.
The Rule of Law and the National Labor Relations Act p. 161 It accomplished this deradicalization by bringing changes in labor law under the procedural control of the courts and by establishing legal doctrines that incorporated the statute’s provisions into constitutional language and themes.
Public Rights Doctrine: Public Interests in Private Contracts p. 163 This construction served to justify greater legal regulation (Cohen 1933). Unions, corporations, and the collective bargaining process rather than as individuals exercising private rights such as freedoms of religion and speech. p. 164 Only the board could go to court and state contempt proceedings under the National Labor
Relations Act. p. 165 The Court held that, in principle, sit-downs violated industrial peace. This limited the kinds of actions that workers could take in disputes with their employers.
The Workplace Contract: Ordering Conflict and Defining Roles During the “Glory Days” p. 166 Despite these new restrictions and controls on union organizing and activities, the union movement grew throughout the 1940s and reached a high point in the 1950s when about 35 percent of all workers in the United States were represented by unions and were covered by collective bargaining agreements. p. 167 This framework provided workers with wage increases based on the inflation rate and productivity growth, with job-related benefits that included health and dental insurance, with job protection based on seniority (length of employment by an employer) along with rights to transfer to other jobs based on seniority, and with legally binding definitions of jobs and work rules.
The Workplace Contract: Crisis and Directions for Renewal p. 168 This construction of the contract between employers and employees made worker alienation a permanent feature of the process of production and the provision of services. p. 169 All of these problems underscored the tensions and problems of the traditional workplace contract. p. 170 The enterprise compact seeks to overcome the old divisions between unions and management by establishing shared goals and by creating a pattern of enterprise governance that brings union representatives, workers, managers, and people from the community together in decision making.
Conclusion
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Future of Law and Society
Turkel, Chapter 11 p. 222 The themes of popular culture in the 1980s and 1990s-individualism, interpersonal and collective powerlessness, and a lack of stable meaning in everyday life-have been core concerns for critics of law and society. p. 223 In current U.S. society, however, common meanings have been undermined. Consumer society and commercialism; the weakening of local community by the growth of large corporations, the global economy, and the nation state; and a culture of “radical individualism” have made it difficult to establish shared meanings that have broad public support (Bellah et al. 1985:84).
Paradoxically, legal rights, which depend on the collective power of legal institutions and government, may make people feel more and more independent of government and social institutions. We tend to lose sight of the fact that individual freedoms and choices are profoundly legal and social.
Patterns of authority, such as parents and children or teacher and students, define individuals in social and moral relation to one another rather than in isolation from one another.
Responsibility is not found in the actual connections among people but, rather, in the experience of choices they make. People do not feel responsible for the outcomes of their actions unless they choose those outcomes. p. 224 Postmodernists, and Foucault, in particular, show that the modern individual and rational law are historical constructions that have fragmented and weakened the associations that people have had with one another.
Postmodernism and the Legal Individual: Michael Foucault p. 225 The modern epoch is based on industrial development, science and rationality, and individualism.
As a result, modernism’s promise of progress in social life has led postmodern thinkers to criticize its central assumptions and concepts, including individualism, rights, and the rule of law.
Changes in Criminal Law and Punishment p. 225 His studies focus on demonstrating that notions of scientific progress, legal rationality, and the rights of the individual are aspects of expanding patterns of social power and control, Rather than signifying freedom and progress, these aspects of modern society are features of efficient institutional control.
Law combines with other forces in society to form the individual as a pivotal point of administrative control. p. 226 An important change in these kinds of punishment and law is their physical and social locations. In the first form of punishment, torturing the body of the condemned is a public spectacle.
In the second, the punishment is withdrawn from public view and is located in the closed institution of the prison.
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In the second kind of punishment, the body is punished for the purpose of changing the mind and the behavior of the criminal. Punishment is a method of therapy and control over the individual criminal.
Explaining the Changes in Criminal Law and Punishment p. 228 A core factor in the change to modern criminal law and punishment was the development of industrial capitalism.
It spread the idea that the individual acting on the basis of reason and will entered into a social contract with society for individual security and betterment. To the extent that individuals accepted the laws of society, they also accepted laws that specified the conditions under which they were to be punished.
Criminal law and punishment, Foucault argues, becomes more rational and utilitarian. The standard for punishment becomes the amount of pain sufficient to exceed the gains derived from illegalities.
Sentencing, moreover, becomes a matter of fitting punishment to an individual’s degree of responsibility. This raises the difficult problem of applying general laws to specific individuals.
Ultimately, criminal law addresses deficiencies and problems internal to the individual.
It (prison) is an institution where individuals can be observed, their behaviors measured and efforts made to exercise greater control over them in order to improve their performance according to institutional standards. p. 229 Institutionalized power and knowledge construct the individual as a means of enhancing discipline and control in society.
Prison is part of a modern system of surveillance and law that accomplishes two things: individuals are subjected to greater and greater control while individual legal rights and individual dignity are made into basic principles of law and society.
Modern principles of equal rights under law and individual freedom are, in reality, supported by relations of law, power, and knowledge that subordinate people to institutions that discipline and control them.
Controversies Surrounding Postmodernism, Law, and Society
Postmodernists stress the constructed, unstable nature of law and society. p. 230 Instead of focusing on institutions such as constitutional law, the nation state and grand theories of law and society, it is more appropriate to focus on the uniqueness and specific experiences of particular events.
Postmodernist inquiry into law and society does not further commonly shared experience, the search for structural relations that underlie events, and broad narratives or stories that make sense out of social groups and social movements. p. 231 By focusing on local, specific, and highly individual experiences, postmodernism takes apart or deconstructs common experiences; this undermines ideas and beliefs that make shared understandings and collective action possible (766-777).
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Community, Citizenship, and Law p. 231 Although many factors contribute to the declining status of the public sphere in U.S. society, a key factor is the way U.S. legal and political culture has constructed the meaning of citizenship (46-
48). The dominant view is civil citizenship. It defines citizenship primarily in terms of private individuals pursuing their own goals and interests through legally secured relationships such as property and contract. This approach to citizenship gives great weight, value, and status to the personal and private sphere; it undermines the value of common property, shared institutions, and collective obligations of public life. p. 232 Marshall sees these rights as being provided as social services to all people independent of their income.
Second, civil citizenship has weakened community by making activities and relationships outside of property and family appear as voluntary acts of charity on the part of people of substance toward those who are downtrodden.
Community and the Rule of Law: Trust, Participation, and Equality p. 234 As a result, administrative rules and institutions often make people feel powerless in the face of arbitrary bureaucratic powers that overwhelm traditional beliefs and principles that are the underpinnings of the rule of law. p. 235 He (Hayek) supports a return to clear distinctions between public and private spheres of life fostered by strong limits on policies such as social welfare and economic subsidies that bring law and state power into places where they do not properly belong. p. 236 To draw a sharp line that prevents law and public policy from entering into private relations, especially private businesses and families, ignores current economic and gender realities. p. 239 The discussion points to a potentially fruitful tension between legal structures that support self-regulation and the principles of the rule of law that limit arbitrary power and secure a place for the individual person.
Conclusion
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Anleu (2000) p. 201 For Marshall, citizenship is ‘a status bestowed on those who are full members of a community’
(1992:18). It is an attribute or characteristic that people possess by virtue of belonging to a collectivity.
Citizenship requires a direct sense of community membership based on loyalty to a civilization, which is a common possession. Marshall identifies three elements of the concept of citizenship: civil, political, and social. p. 202 Social rights: These refer to a minimum level of economic welfare, social security and living standards that are attendant on being a member of a collectivity,
He considers that the evolution of citizenship has been in continuous progress over the past three centuries and identifies the formative period of the different dimensions of citizenship with different centuries (acknowledging some overlap): civil rights belonged to the eighteenth century; political rights to the nineteenth; and social rights to the twentieth century (at least to the first two-thirds of it). p. 210 Many observe that central complementary conflicts deal less with labor and economic problems than with cultural and especially ethical problems. The key dimension of conflict of knowledge and involves resistance to technocratic domination (Brigham, 1996: 129-54; Habermas,
1981: 34). p. 211 The content of citizenship in all western societies has been affected by the crisis of welfarism, the shrinking of the state and globalization, which hinder the expansion of social rights and redirect the claims for rights toward a new domain of cultural rights that involve the right to unhindered and legitimate representation, and the propagation of identities and lifestyles through information systems. p. 213 Interestingly, not only do new social movements seek to influence law, but legal institutions and discourse inevitably shape the activities and orientation of the movements themselves.
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Vago – Chapter 6 – Law and Social Control p. 212 Social control refers to the methods used by members of a society to maintain order and promote predictability of behavior.
There are two basic processes of social control: the internalization of group norms and control through external pressures (Clinard and Meier, 1998).
Mechanisms of social control through external pressures include both negative and positive sanctions.
Informal Social Controls p. 213 Informal mechanisms of social control tend to be more effective in groups and societies in which relations are face-to-face and intimate and in which the division of labor is relatively simple.
Formal Social Controls p. 216 Although there is no clear-cut dividing line, formal social controls are usually characteristic of more complex societies with a greater division of labor, heterogeneity of population, and subgroups with competing values and different sets of mores and ideologies.
Formal controls are characterized by systems of specialized agencies, standard techniques, and general predictability of universal sanctions. The two main types are those instituted by the state and authorized to use force, and those imposed by agencies other than the state, such as the church, business and labor groups, universities, and clubs.
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