Law and Society

(aka Sociological Legal Theory)

Now we have read a lot about how philosophers endeavor to dissect what "law" meant, how about how law interacts with our society? Why did capitalism arise and how does equality and freedom play a role in it? Carry on to learn more!

Emile Durkeim (1859-1917)

• due to society's movement from religion to secularism, the law is less concerned about punishment than compensation

  • punishment -(derived from)→ crime → common conscience

• types of social solidarity:

  1. mechanical solidarity: uniformity of values, absence of division of labor

  2. organic solidarity: division of labor, high degree of interdependence

Max Weber (1864-1920)

• revolves around the idea of 'rationality'

  • which diverges into 'formal' and 'substantive' legal system - is the system 'internally self-sufficient'?

• attempts to explain the evolution of capitalism in western societies:

  • law is relatively autonomous - "fundamentally related but not determined by economic factors"

  • English law system is less "substantive" than the Roman law (formal in the sense that legal writings have to be formatted in a specific way)

  • lawyers are specialized to cater to their commercial clients

  • binding of precedents - 'cautelary jurisprudence' (laws are drafted to prevent future litigations)

  • this leads to formal rationalization of law

• Why should people obey the law (hence, legitimate domination)?

  1. traditional - obeying because of long tradition of obedience to power

  2. charismatic - obeying because of the characteristics/personal charms of the sovereign

  3. legal-rational - obeying because of the recognition of the legality of the rule and the right of the authority

     • What is good about legal-rational authority?

       • 'Formalistic impersonality' - judges can impartially apply the rules

It is noteworthy to point out that many of Weber's detractors found his analysis of domination too simplistic.

Karl Marx (1820-1895)

• historicist: social evolution is unavoidable due to historical forces

• views the origins of laws in two ways:

  1. sprung from economic base (instead of moral)

  2. 'class instrumentalism' - expresses the will of the dominant class (but do they have a unified consensus)

  3. latter Marxist - mediation of classes (connection between different classes)

• rejects 'consensus' model for the evolvement of our society:

  • the presence of 'conflict' between opposing camps (i.e., the powerful and the powerless) of the society, where law is used to keep dominant group in control

  • instead of the unitary of society and only conflict in personal level

• argues that revolutions will inevitably lead to classless communist society which made law unnecessary - this invites criticism as law is also used to regulate economy

• rejects the notion of justice and rule of law as it is a concept dependent on material conditions, hence equating it to communism

  • latter Marxist (E.P. Thompson) - embraces the idea of rule of law

• repudiates the idea of individual human rights as capitalism and selfish

  • distinguishes 'right of citizens' (political rights) from 'right of men'

  • argues that 'right of men' is problematic as it induces egotism

• to achieve true individual liberty:

"triumph of human elements over material world"

Jürgen Habermas (1929)

• the consequences of capitalism and a strong centralized authority is the intrusion of 'lifeworld' (which meant "common norms and identities")

• hence, need 'communicative action' which is based on equality and freedom

• differentiates 'law as medium' from 'law as institution':

  1. law as medium - general rules that overpowers a state

  2. law as institution - incorporates shared values/norms as an institution

Michel Foucault (1926-1984)

• disciplinary power instead of law plays an engaging role in every areas of our life

• coined as 'genealogy' - analysis of the nature and function of power (e.g., prisons) and how discipline arise

• practices : techniques

  1. 'cellular' : "draws up table"

  2. 'organic' : "prescribes movements"

  3. 'genetic' : "imposes exercises"

  4. 'combinatory' : "arranges 'tactics' in order to obtain the combination of forces"

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Credits

The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.

P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!

#jurisprudence #notes #introduction