SOCIAL THEORY OF LAW
n A loose, or elastic, interpretation of the Constitution and other founding legal documents is desirable, since a strict interpretation of most laws (i.e. what the lawmakers originally intended) will not anticipate the sorts of social problems for which judicial activism might be a solution
n Legal realism, the original school of judicial activism, treated the law as a social experiment – i.e. the law aims to predict improvements in society
n one implication is that a time-frame is attached to the implementation of laws: i.e. we enact a law for a fixed period and then see whether it has brought about the desired outcomes; if not, we repeal the old law and enforce a new one.
n Although sounds simple in principle,
it is in fact difficult in practice, especially in parliamentary democracies
n The situation is somewhat different
n A difficulty for Judicial Activism is determining when it is inappropriate or counter-productive: e.g. even without formal gender discrimination in the workplace (same pay, etc.), men may still resent women in good jobs. Can the law do anything about changing such deep-seated attitudes, or will they change only as the generations change?
n Pessimism about these matters has fuelled critiques of judicial activism from both the extreme right (libertarian) and extreme left (Marxist). If discrimination is so culturally embedded, then you can do nothing other than start society from scratch.
n A contained version of this problem arises when policy makers realize that equality of opportunity does not guarantee equality of outcome: i.e. even after positively discriminating in favour of women, minorities, etc., they still do not reach equality. Perhaps this points to a innate biological barrier between, say, men and women, whites and blacks?
o Women pose a special challenge to the law because while they have always made up more than half the total population, their activities have typically gone unrecorded and hence difficult to make the basis for legislation: e.g.
o biomedical research typically based on men’s bodies (unless dealing with specifically ‘women’s problems’, largely because such research has been motivated by warfare
o women’s contributions to the economy through domestic labour and child-rearing not formally registered in national accounts
o crimes to women – e.g. assault, rape, etc. – traditionally regarded as ‘private’ matters and hence not recorded
n The origin of feminism in the ‘women’s movement’ was really about bringing liberal and socialist political theories to their complete legal realization, i.e. an effort to make liberals and socialists self-consistent (e.g. Mary Wollstonecraft, Harriet Martineau, JS Mill)
n The viability of a distinctly feminist jurisprudence rides on the validity of the claim that we live in a ‘patriarchal’ society, in which women’s power is always ultimately subordinated to men’s. Although this view is rooted in 19th c. anthropological critiques of capitalism and militarism, it really came to the forefront of the women’s movement in the late 1960s.
n 'Patriarchy' refers to rule by the father, which is based on the mytho-anthropological hunter-gatherer scenario of men risking their lives for a family whose domestic life is managed by women. Since fathers transmit their livelihood to sons, a strict political-economic order is maintained. (Marx, Engels, Lewis Henry Morgan)
n The evidence for patriarchy is multifarious, and may include facts concerning differences in how women and men experience similar acts done against them (e.g. rape), as well as the dependency relations between women and men even in situations where women exercise nominal power (e.g. women judged by male-based performance standards)
n All of the above judgements are subject to cross-cultural checks, since women may not be subjugated to the same extent or for the same reasons in different societies. However, this fact does not by itself undercut the validity of feminist jurisprudence.
n There are three types of anti-feminism, none of which is necessarily against the welfare of women:
n Deny that discrimination against women is as great as rumoured (and that the law should not provide special treatment for a particular group).
n Deny that discrimination against women is specifically against women, as opposed to against the poor, the majority of whom happen to be women.
n Deny that men and women are equal (but then hold men responsible for the secure protection of women).
n Marxists have found it difficult to produce a jurisprudence because they generally regard the law as an ideological instrument for maintaining existing social relations, which are in turn based on control of the means of production.
n Not surprisingly, Marxists have often preferred revolution –- a starting from scratch – to any piecemeal experimentation within the existing legal system.
n However, this ideological function is masked because of the ‘relative autonomy’ of the law from the political economy: i.e. the illusion of objectivity that makes it appear that the law stands ‘above’ everything else in society.
n When Marxists say that law is ideological, two distortions are masked, indeed so that they are not seen as being intimately interrelated. These two distortions may be regarded as a form of self-deception and other-deception, respectively, which together maintains the status quo:
n Legal discourse distorts legal practice
n Legal discourse distorts existing social relations
n More sophisticated Marxist theories argue that the law marks the resolution of class conflict in a way that makes it appear that all parties have had their say. Nevertheless, the outcome is biased in favour of the dominant classes (or at least they are not delegitimated)
view has been historically very controversial in the
n Marxists also note the exact timing of the emancipation of slaves by Lincoln – he ensured that the newly enfranchised Blacks would be beholden to the interests of his own Republican Party for the next 50 years.
· Welfare state based on the idea that the law can be used to bring about major social change by peaceful means -- and, significantly, such social change would not happen without legal intervention.
· Implied here is a distrust of capitalism’s ‘invisible hand’ but also a largely economistic view of the social world: i.e. everything is reducible to income level, which should be ideally equalized
· Why should income be equalized? Two possible reasons
· An inherent good, closely linked with equal respect and political access: hence, aim to ‘lower the top’ and ‘raise the bottom’ of the income scale
· Maximizes society’s productivity: This is more controversial, but was the main 19th century argument (J.S. Mill) for redistributing wealth – i.e. because the rich need their extra money less, they will tend to waste it (e.g. via what Thorstein Veblen called ‘conspicuous consumption’).
· Those who speak of ‘trickle down economics’ (Reagan, Thatcher, based on Milton Friedman) imagine that the rich will invest extra money so as to create jobs for the poor. However, the money often doesn’t trickle down that far because the investments with the best returns may involve replacing workers with technology (this growth in permanent unemployment was Marx’s main reason for predicting a revolution)
· Nowadays the argument is often put in reverse –- i.e. the rich need their extra money more because they are in a better position to invest in capital that will create jobs that will benefit the poor, whereas the poor will simply consume the extra money (e.g. in booze!)
· The fundamental legal principle behind the welfare state is the law of diminishing marginal utility, which is responsible for the revolution in neoclassical economics
· The idea is that, beyond a certain point, the same amount of additional money provides more pleasure to a poor person than a rich person, and hence the rich person is harmed less than the poor person is benefitted.
· Hence, the legal redistribution of wealth (via the tax system) is justified on utilitarian grounds.
· This principle presupposes a strong separation between production and consumption. People toil in order to consume, which is where they realize their values (i.e. satisfy the pleasures, or 'maximize their utility).
· The welfare state also generally accepts the Marxist premise that there are classes in society, or at least relatively fixed, partly hereditary economic groups that will not substantially change without significant state intervention.
· However, the welfare state typically differs from Marxist socialism by aiming simply to guarantee a minimum acceptable income level for an adequate quality of life, not to equalize all incomes.
· John Rawls moved the welfare state closer to socialism by arguing that inequality can be justified only if the poor are more likely to benefit from the rich's investments and charity than by actually reducing the difference between rich and poor through taxation.
· Main theoretical objections to the welfare state:
· It creates a dependency relationship between individuals and the state, discouraging people from both taking responsibility for their fate and assuming a leadership role in society.
· These people who strategically depend on public monies, 'free riders', discourage others in the society from working hard, since they know they will only be taxed to support the free riders.
· Main practical objections to the welfare state:
· Difficult to define and enforce 'equal treatment' across so many different social spheres that the law would have to cover.
· The 'regulatory' aspect of the welfare state (e.g. over market activities) would necessitate a bureaucratic system that would stifle freedom
· Difficult to specify fairly the conditions under which individuals should receive welfare benefits and to what extent they should do something in return.