SOCIAL THEORY OF LAW
FIRST LECTURE
I. Both anthropology and
sociology have strong roots in the law.
n
Marx and Weber
trained as lawyers
n
Marx and Engels’ mature views on the evolution of society indebted
to the
o
savagery,
barbarism and civilization – all based on the mode of production
n
Henry Stuart
Maine, a UK lawyer, is responsible for the founding sociological transition
from ‘ancient’ to ‘modern’ law as from ‘status’ to ‘contract’ (Ancient Law,
1861).
II. Why is social science
rooted in law?
n
Origins of
entitlements, especially when complex but unformalized
social systems pre-date a nation-state that wishes to claim overall
jurisdiction
o
Morgan
influenced by the Iroquois Indians of NY and
n
The point of
these exercises is to show that society can function without formal rules but
may be improved through the formal systems represented by the nation-state,
especially by resolving persistent internal conflicts.
o
Progress in the
law consists of removing arbitrariness of personal judgement
III. A standard 19th
century story of how the law develops:
n
Originally
entitlements descend through the mother because paternity cannot be
established, but paternity emerges as society passes from the hunter-gathering
stage of savagery to the fixed propertied agricultural stage of barbarism
o
Marx & Engels liked Morgan because the shift to patriarchy
associated with a shift in the mode of production
o
They got from
him the idea that law plays an increasingly important role in unequal societies
as a means of sublimating or buffering recurrent class conflicts, which are themselves
the result of property ownership becoming formally marked
n
Morgan and
n
Lasting legacy
of Morgan’s approach: Laws tend to reinforce group identity at the expense of
outsiders (‘legislated racialism’)
o
Morgan believed
that law’s legitimacy rested on self-legislation: thus, the Iroquois law is
legitimate but not the slavery laws against Blacks (Morgan also believed Blacks
should be sent back to
n
Sociological
approaches to the law, such as Weber's, have tended to privilege formal legal
systems as 'rational', and more generally focus on the spoken or written word
as providing the binding force of law beyond a society's 'implicit norms'.
o
E.g. Weber's
'charismatic' law is similar to the old Hobbesian/positivist
idea of law as whatever is said by the recognized law-giver.
IV. What is the
relationship between sociology and law?
A. The key difference between ‘traditional’ and ‘modern’
societies for the classical sociologists was that modern societies have formal
legal systems that govern a nation-state
1.
i.
2.
This distinction
was canonized as Gemein/Gesellschaft by
Ferdinand Toennies (1887), based on a translation of
Hobbes’ Leviathan, in which Gesellschaft
is governed by the social contract.
3.
It is clear that
the classical sociologists regarded law as something added to, and
transformative of, some ‘natural’ sense of social order.
i.
Of the three
classical founders of sociology, Marx had the weakest conception of law, which
he saw as merely mediating and buffering capitalist relations to delay the
worst possible effects of the system without any fundamental alteration.
ii.
Durkheim saw the law as a
rallying point for collective solidarity by both disciplining and expanding the
capacities of individuals. This is why treason is often treated as the highest
capital crime, even though the acts involved may have done or would likely do
minimal damage to society.
iii.
Weber, himself a
trained lawyer, focused on the Hobbesian dimension of
law as the disguised coercion of individuals, which is justified by the size
and complexity of modern states.
|
|
LAW CHANGES THE SOCIAL
ORDER |
LAW DOES NOT CHANGE THE
SOCIAL ORDER |
|
LAW EXPANDS INDIVIDUAL
EXPRESSION |
Law turns society into a
whole greater than the sum of its parts (e.g. redistribution,
standardization, conscription) |
Law gives voice to what
society already does and thinks (e.g. natural law, common law) |
|
LAW CONTAINS INDIVIDUAL
EXPRESSION |
Law corrects socially
unacceptable behaviour (e.g. criminal and tort law) |
Law covers up the exercise
of power (e.g. decisionism, justificationism) |
POSSIBLE
RELATIONSHIPS BETWEEN LAW AND SOCIETY
V.
Fundamental Sociological Problem about the Law: How do you identify the Laws of
the Land?
A. Marcel Mauss Paradox: Named for Durkheim’s main
student, who was interested in cross-cultural understandings of personhood.
a.
What strikes the
observer as most distinctive about another society’s laws is what distinguishes
that society from the observer’s own.
b.
However, that
distinction may be quite marginal to the society’s operation, and indeed the
society may govern itself pretty much like the observer’s own.
c.
Thus, empirical
inquiry may artificially amplify differences in legal systems.
B. Notice the different methods that would be used to
gain knowledge of ‘social laws’ in each of the four senses below:
|
|
FIRST PERSON JUDGEMENT
(EMIC) |
THIRD PERSON JUDGEMENT
(ETIC) |
|
LAWS APPLIED TO ONESELF |
Laws stated on demand |
Regular conduct |
|
LAWS APPLIED TO OTHERS |
Laws as inferred from
hypothetical cases |
Regularly applied
sanctions |
VI. Reasons for promoting
a sociological or anthropological approach to the law:
n
Defend the
integrity of native cultures from external intrusion: Malinowski
on law as ‘reciprocal obligations’, which implies that native societies are
functional, so that imperialists can turn a blind eye to internal inequalities
for purposes of keeping the peace.
n
Provide an
implicit critique of formal systems of law in one’s own society, perhaps
upholding a judicial activism that the laws formally disallow: e.g. Karl
Llewellyn in the
n
Encourage a
systematic study of the consequences of applying the law in specific cases, and
hence provides input for future legislation, especially in terms of enabling
the law to realize what it is trying to accomplish (e.g. equal protection)