Advanced Theory Locating Law (E. Comack)

1. Advanced TheoryLocating Law (E. Comack) CC 400

2. In order to understand the law/society relation, we need to place law within the nexus of race, class, and gender relations in society. • We should think of social theory as a “set of answers to questions we ask of social reality.”

3. Theory then, rather than being avoided, should be something that each of us closely interrogates. By doing so we have the potential to gain a clearer sense of not only our own, but also other peoples’ ways of making sense of the world.

4. While poverty, inequality, social conflict, and suffering are by no means new phenomena, they can take on specific forms under different social and historical contexts. • Theory is not static in one sense, it builds on previous works; it is a cumulative enterprise.

5. The Official Version of Law • Impartiality, neutrality, and objectivity may be viewed as the cornerstones of the modern legal system. • In both its form and method, law asserts its claim to be impartial, neutral, and objective.

6. The form of law is partly reflected in its adherence to the adversarial system. Law is set up as a contest between two parties, each representing its own version of events.

7. That judges are impartial in their decisions is reflected in the doctrine of the separation of powers: the legislature (maker of law) is separated from the judiciary (administrators of law).

8. There is also a legal mode of reasoning that is captured in the notion of legal positivism that asserts that the focus of legal players is on facts and not on values. The result is a neutral, value-free, and objective science of law.

9. Perhaps the most central doctrine is the rule of law which encompasses two broad claims: • Everyone is subject to the law. • The law treats everyone the same, as legal equals

10. In both its habit and form, the law promotes an image of itself as fair, disinterested, just. • In doing this, however, the law presumes the existence of a particular kind of individual and a particular form of society.

11. The subject of law is a universal, abstract individual. • This concept is historically specific – springing from Western societies.

12. It has emerged out a particular set of philosophical and theoretical ideas – a combination of elements drawn from conservative and liberal social philosophies

13. CONSERVATISM • Finds its roots in 17th century writer Thomas Hobbes. • Man is characterized by self-interest, egoism and unlimited desire for personal gain.

14. The state of nature is typified as ‘war of all against all’.

15. Man’s saving grace was that he possessed reason, and reason told man that his interests would be best served through cooperation and through the formation of a society.

16. Men struck a social contract. This social contract empowered the institutions of law and government to arbitrate the conflicts between individuals and to ensure and orderly, organized society.

17. The main function of the state was to preserve the rights and freedoms of individuals to pursue their material interests with minimum interference from the powers that be. • In the process, social order was maintained and upheld.

18. LIBERALISM • Has its roots in 18th century – Jean Jacques Rousseau and John Stewart Mill • Liberalism places heavy emphasis on rationality, that is, on the individual’s ability to think abstractly and objectively.

19. At the core of liberal thought is the belief in the rights and freedoms of the individual.

20. Best exemplified in Mill’s dictum “individuals should be free to pursue their own happiness so long as they do not infringe on the similar rights of others.”

21. The purpose of law is to allow individuals to realize these inherent rights and freedoms.

22. In the law’s view, individuals are separate, autonomous beings – legal subjects – who must be held accountable for their actions.

23. Traditional Approaches in the Sociology of Law • Functionalism – takes the Official Version of Law as a given. • Liberal Pluralism is more skeptical of its claims. • Marxism rejects law’s claims altogether.

24. The Functional Approach • Durkheim, Parsons, Merton, Albert Cohen (subculture theory) and Travis Hirschi (control theory). • Like the Official Version of Law, functionalism draws on elements of conservative social philosophy in formulating an image of human nature.

25. Durkheim was an advocate of the positivist method – understood as the position that it is possible to adopt the laws and methods devised to understand the physical world and apply them to an analysis of the social world in order to arrive at the ‘truth’ about human behaviour.

26. Theories that aim to understand the operations of different processes in society – like the law-society relation – are each premised on particular conceptions of what ‘society’, at a fairly abstract or general level, looks like.

27. In formulating their conception or image of society, functionalists utilize an organic analogy.

28. One implication of the conception of society is that, for analytical purposes, a particular institution, (like the legal system) can be separated out and studied in isolation from the others by looking at its structures and its functions.

29. Because the focus of the functionalist approach is so heavily centered on the sources of order in society, it is an approach that can not handle conflict very well. • Conflict, when it is recognized, tends to be viewed as either pathological (in the sense of being temporary), or as functional.

30. Likewise, functionalist are not well-equipped to handle an analysis of power. To the extent that they incorporate power into the analysis, they see it as a matter of societal domination – or the power or society over the individual.

31. Functionalists are aware of social inequalities – they understand inequality a both ‘natural’ and ‘functional’. • Inequalities are natural in the sense that they emerge out of inherent or innate differences between individuals and groups (like those based on sex or race).

32. Inequalities are functional because in a healthy and stable society, individuals know their place, they have a duty to fit in and perform their assigned tasks.

33. Because functionalists see culture or the normative system of society as the main force of social integration or cohesion, they necessarily see law as an important integrating mechanism. • For the functionalist, law both represents and reinforces the collective conscience of society.

34. In applying the organic analogy, Durkheim suggested that law plays a role analogous to the central nervous system in an organism • Durkheim’s view on crime is also instructive. Crime is defined as the sanctions imposed.

35. That is, crime is an action that elicits punishment. • Crime consists of acts that are universally disapproved of by members of society. • Punishment against crime, according to Durkheim, takes the form of vengeance. It avenges the moral outrage aroused by the criminal.

36. It is a means of defense for society and the collective conscience. • This is where the role of the state enters. Because crimes are behaviours thought to be so serious as to threaten the entire society not just the victim, it falls to the state, as the representative of members of society, to take action against the offender.

37. In this respect, functionalism conceptualizes the state as a neutral force operating on the behalf of society as a whole. • The state’s primary function is that of social control: ensuring individual conformity to the normative system.

38. Because functionalism locates law as the institutional expression of the norms and values of the majority, the approach does not need to question the Official Version of Law.

39. For instance, with regard to criminal law, functionalists make no attempt to question the political nature of crime – to question whether definitions of “what is criminal” provide a means by which one segment of a population controls or manages another.

40. Instead their focus turns to the criminal offender and questions the causes of an individual’s inability to conform to the norms and values that everyone else in society deems acceptable.

41. Over-riding the explanations for the causes of crime is the assumption that crime in a lower-class phenomenon. • Since the structure of society goes unexplained, social problems like crime come to be viewed as the problems of certain groups or individuals who fail to fit the requirements of the social order.

42. Solutions proposed tend to focus on policies of re-socialization or rehabilitation, increased social control (for example, more police) and harsher penalties for wrong-doing (such as lengthier prison terms and capital punishment).

43. The Liberal-Pluralist Approach • Finds its roots in the work of Max Weber, the Chicago School (Mead and Cooley), and in criminology – Edward Sutherland’s differential association theory and in labeling and group conflict theory. • Liberal pluralism does not go as far as the functionalist approach in its acceptance of the Official Version of Law.

44. However, though more skeptical, the liberal pluralist approach is, in an overall sense, compatible with the functionalist approach.

45. They view human as naturally competitive and power-seeking: everyone wants the most out of life and aspires to be number one. • At the same time, however, individuals are possessed with certain innate human rights and freedoms that can only be realized through society.

46. The task, therefore, is to ensure that the competition between individuals is fair and that society is organized in the way that is most amendable to realizing these rights and freedoms.

47. In contrast to the functionalist perspective, liberal pluralism does not make the assumption of a consensus of dominant norms and values in society. • Instead they view society as consisting of a plurality of competing interest groups, each on intent on realizing their particular interests or goals.

48. Weber, for example, posited that the competition for power occurs within the stratified order of society. • Weber conceptualized stratification along three dimensions.

49. Power in society derives from three different sources and the amount of power an individual possesses is related to his/her standing along each of the three orders. • An economic order: which features classes. • A social order: which features status groups. • A political order: which features parties.

50. Since the sources of power are multi-dimensional, no one variable is seen as ‘determining’. • Liberal pluralism is better equipped than the functionalist perspective approach to handle an analysis of conflict and power.