Social Theory of Law
SOCIAL THEORY OF LAW: PART ONE
Autumn 2001, Tuesday 4-6 pm (Seminar will normally precede Lecture), Room F111. If we run into a third hour (6-7 pm, Room B209)
Course Tutor: Prof. Steve Fuller (
s.w.fuller@warwick.ac.uk)Office Hours: Tuesday 2-3 pm, Thursday 12-1 pm. Appointments preferred
RATIONALE: This is the first half of the two-term social theory of law course. The second half is taught by Dr. Ralf Rogowski. The course is designed to give students a sense of theoretical developments in the law from the perspective of someone who works in sociology (Fuller) and law (Rogowski).
COURSE STRUCTURE: The first half of the course this year will centre on "critical" approaches to legal theory. There is a required book now available in the university bookshop: Students are required to purchase a textbook: Ian Ward, An Introduction to Critical Legal Theory (Cavendish, 1998). The lectures for each week will correspond to a chapter in the book, though they will complement (not reproduce) that material. Other reading materials, especially in relation to the seminars will be distributed in class or placed on the course website, which is accessible through my homepage: http://www.warwick.ac.uk/~sysdt/Index.html. The seminars will normally precede the lectures, and readings for the seminar will be typically assigned one week in advance. Students are responsible for attending both the lectures and seminars, and may be asked to do presentations on selected topics. This half of the course has been substantially revamped from last year.
COURSE ASSESSMENT: Students are required to do two assessed essays covering the two halves of the course, as well as a final examination. Each essay is worth 20% of the final mark, and the exam 60%. Students are also required to submit a non-assessed essay during the autumn term. To ensure that students receive feedback on their work, the non-assessed essay must be submitted (either by e-mail or in my pigeonhole in the Sociology, Dept, 2nd floor, Ramphal Bldg) by the end of the 8th week (23 November). A list of essay topics will be provided in week 4 (23 October). The first assessed essay is due on 18 February, 4 pm, at the Law School. Both non-assessed and assessed essays should be 2500 words.
WEB-BASED MATERIALS: Whenever possible, web-based materials will be used to supplement the course. Students are also encouraged to explore the web for themselves and share their knowledge of pertinent websites with the rest of the class. This course outline will be placed on my homepage, so it will be possible to access directly the weblinks mentioned here. For example, since Week 2's lecture will provide a historical overview to legal theorizing, you may wish to familiarize yourself with highlights in the history of the law. A Canadian legal advisory firm has developed a good basic website for this purpose that is especially strong in the Anglo-american side of things. See especially http://www.duhaime.org/hist.htm and http://www.duhaime.org/hallfame.htm.
For a list of websites related to critical legal theory more generally, see http://www.critcrim.org/critlegal.htm, a site developed by some US criminologists. One well-regarded and very ambitious article that tries to examine the entire history of the law from the standpoint of critical legal theory is http://www.wcl.american.edu/www.wcl.american.edu/pub/faculty/boyle/politics.htm.If you skim through it, you'll see most of the schools and issues that are raised in the Ward book and will be raised in the lectures.
COURSE INTRODUCTION: WHAT IS CRITICAL LEGAL THEORY?
In the first term, we shall examine the law from the standpoint of "critical legal theory." The idea of "critical legal theory" sounds strange at first, since criticism normally implies a judgmental attitude toward something, yet the law is the ultimate source of socially sanctioned judgment. In that sense, isn't the law always already critical? In this half of the course, we shall see that the answer is "Not necessarily." A premise of critical legal theory is that the law can lose its legitimacy if it is not aware of the standpoint from which its judgments are delivered. In other words, the laws governing our lives are not akin to physical laws that exist regardless of our recognition of them. Rather, their legitimacy derives from how they are applied to bring about particular socially desirable outcomes. These outcomes are the result of the combined work of legislators, judges, lawyers, police, and ordinary citizens -- each of whom have somewhat different and sometimes countervailing interests. Nevertheless, acts of law are often presented in such global terms as "the administration of justice" or "the upholding of rights" that mask the different interests involved. The first job of critical legal theory, then, is to reveal those interests. The second is to determine whether this revelation undermines the law's legitimacy and, if so, then how is the law's legitimacy to be restored.
While the expression "critical legal theory" was coined in the 1980s, the general sentiment has been around from virtually the beginning of the law. Whenever a philosopher has queried whether the actual laws of a land conform to "natural law," he or she has adopted a critical attitude toward the law. Here "natural law" stands for a variety of concepts -- ranging from "what God would do in this situation" to "what is appropriate to human nature" -- that function as a standard against which to judge the law. Natural law is nowadays often seen as old-fashioned, since the existence of both God and human nature have been seriously called into doubt. Nevertheless, it is worth recalling its original critical function, which appears in legitimating various peasant revolts in the Middle Ages and the major revolutions of the 17th and 18th centuries in Britain, America, and France. In all these cases, the guiding idea was that the dictates of a monarch or assembly were not the ultimate court of appeal. A critical attitude toward the law thus enabled justice to be acquired outside the established legal system, often through the violent overthrow of the current regime. (A good sense of the old-fashioned, but perhaps still relevant, character of natural law can be seen in this article from the 1910 edition of the Catholic Encyclopedia: http://www.newadvent.org/cathen/09076a.htm.)
This last point suggests that a critical attitude toward the law is relative to what we take to be the proper scope of the law. Historically, the law has served two broad purposes -- to prevent and to resolve disputes. When the law tries to prevent disputes, it tends toward blurring the distinction between the public and private spheres by legislating morality. When the law tries to resolve disputes, it normally upholds the public-private distinction, often by presuming that the legal system is in no position to alter people's fundamental attitudes. These two purposes coexist in most legal systems as the legislative (i.e. the preventative) and the judicial (i.e. the resolutative) branches. The relationship between these two branches is very complex and the subject of much discussion in critical legal theory. In the modern period especially, the law has gone beyond the basic maintenance of the social order to empowering (or coercing) people to do certain things and act in certain ways that they might not otherwise. That is, at both the legislative and judicial levels, the law has increasingly engaged in active society-making. Often this legal practice itself has had a critical intent, for example, as part of a strategy to govern society by "scientific" principles. Yet, even it has been criticized by critical legal theorists. The discussion raises the looming issue of establishing the exact standpoint from which the law can be criticized, which is precisely the issue that this half of the course shall explore.
LECTURE TOPICS PER WEEK
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Week |
Date |
Topic |
Reading |
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1 |
2 Oct |
Course Outline Distributed |
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2 |
9 Oct |
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3 |
16 Oct |
Ward, chap. 1 |
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4 |
23 Oct |
Ward, chap. 2 |
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5 |
30 Oct |
Ward, chap. 3 |
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6 |
6 Nov |
Ward, chap. 4 |
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7 |
13 Nov |
Ward, chap. 5 |
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8 |
20 Nov |
Pragmatism and the Role of Politics in the Legal Decision-making |
Ward, chap. 6 |
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9 |
27 Nov |
Ward, chap. 7 |
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10 |
4 Dec |
Review of Course |
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