Durkheim, Marx, Foucault and Legal Theory

• Study notes on Durkheim, Marx, Foucault, Critical Legal Perspectives and Feminist Legal Theory

Durkheim and the Law

• The sociological approach to law views law as a social phenomenon. Understanding it requires examining its context and evolution over time, rather than just reading written rules. Law is a tool for societal rather than simply a normative approach.
• Sociological approach examines how rules are shaped by society and how they shape larger aspects of it.

Émile Durkheim

• Durkheim was a French philosopher born in 1858, during the period of industrialization
• He explored how social order is achieved and maintained in modern societies
• Durkheim identified two types of social solidarity and their impacts on law

Mechanical Solidarity

• Prevalent in primitive societies characterized by a homogenous group with minimal division of labor
• Members are closely bonded, but individuals are somewhat replaceable
• A strong collective consciousness, embodies shared beliefs
• Crime is an offence which violates collective consciousness
• The primary form of law is penal or repressive law, which forbids actions that violate shared values, such as the death penalty
• Purpose of punishment seeks vengeance for offending collective morality, involves retribution, and reinforce social solidarity

Organic Solidarity

• Found in modern societies with a weak collective consciousness and a specialized division of labor.
• Interdependence arises because different skills and roles are required for survival
• Society is like a body where different organs must work together
• Recessive law manages conflicts and promotes cooperation

Critiques of Durkheim

• Law is shaped by social structures and power dynamics, not just individual problems
• The impact of identity (race, class, gender) on legal development and implementation is often overlooked
• "Tough on Crime" approaches disproportionately target marginalized groups

Marx and the Law

• Marx was born in Prussia in 1818 during a time of sociological, political, and economic change
• He sought to end politically oppressive orders and advocated for a classless society
• Functionalism and class antagonism opposes the the class system

Class Antagonism

• Production has three characteristics: mode, means, and social relations
  • Mode: How goods are produced and distributed
  • Means: Tools and instruments used in production
  • Social Relations: How individuals relate to each other in the process of production

Feudalism vs. Capitalism

• Feudalism followed the Norman conquest of England; land was split for the nobles
  • The monarch owned all land
  • Nobles distributed land to vassals, who allowed peasants to live off the land in exchange for taxes
• Mode of production shifted from peasants to nobility, but land privatization began to erode the system
• Capitalism, by contrast, involves a mode of production centered on agriculture and private property, leading to a new social order

Organic Solidarity

• Privatization leads to the rise of the Bourgeoisie, wage-labor economy developed as peasants sell labor for wages
• Mode of production shifted to commodities, with factories as means
• Social relations were determined by Bourgeoisie owners and peasants
• Instrumentalists: Law is a tool to control lower classes

Marxism and the Law

• Law is a coercive tool used by the dominant class to protect property and economic order

Instrumentalism

• The state works at the behest of the dominant class
• Economic power = state power
• Instrumentalists critique: The ruling class is regarded as not a unified front
• Legislation exists to protect against capitalist interests like (employment standards, human rights law, workplace health and safety legislation)

Example of coercive legislation

• Temporary foreign worker program legislation that produces exploitative situations which is an example of modern day slavery

Structuralism

• Law upholds capitalism, supports profitable accumulation, and maintains social harmony
• Legitimation requires state autonomy
• Rule of law dictates law applies to everyone
• Corporate crime is rarely prosecuted
• Driving offences are more aggressively criminalized than coroporate crime

Critique of Structuralism

• Autonomy is unclear; how does this promote profit without direction from dominant interests?

Foucault, Power and Governmentality

• Foucault’s perspective views of power as fluid, dynamic, existing beyond the ruling class, and potentially productive
• Power also leads to destabilization

Foucault - On Law

• Law is a tool to exert power
• Sovereign power in a single monarch using law as a reflection of power
• Breaking the law = offense against the sovereign with consequences
• Barbaric public torture reaffirms the monarch's power which leads to resistance and revolution
• Disciplinary power aimed at the human condition, seeks to discipline bodies and minds with techniques like timetables

Governmental Power

• Used to manage the population and regulate through experts and administrations
• Techniques of governance beyond simple surveillance

Marx vs Foucault on Power

• Marx believed power is controlled by the ruling class to maintain wealth and economic inequality
• Foucault saw power dispersed across institutions, influencing thought and behavior
• Marx emphasized class struggle, while Foucault emphasized control through knowledge, surveillance, and social norms
• They don't talk about the laws

Critical Legal Perspectives

Review includes questions like:

• Where does lay come from?
• Traditional approach includes discussing where law comes from
• The sociological approach has three claims
  • That the Law is a social phenomenon
  • Understanding law requires more than reading written rules
  • Law is one of the many farms of social control

Key Terms

• Common Law: It's origin, precedent and decisions- made by judges
• Discretion: A tool wielded by judges when making a decision granted through jurisdictional authority

American Legal Realism

• Emerged in the 20th century challenging positivism and attacking the "formalistic approach".
• Common standards are not neutral and objective, they hide moral and policy assumptions
• "The faster removal of foreign criminals act" was used to make changes to the legal system
• Identified proper rule or principle will lead to a legal conclusion but mechanical jurisprudence is an inaccurate description of decision making

Importance of Discretion

• Judges decisions have discretion and don't always follow rules, they have the ability to change and shape the legal landscape

Example - Legal Personhood

• Historically, laws regarding "qualified persons" were interpreted as men
• Section 23 of the BNA Act denied women voting rights
• The Supreme Court initially upheld the original interpretation but changed overtime
• Laws should be interpreted with the understanding they are not stagnant over time

Critical Legal Studies

• This approached emerged from American law schools in the 1970s
• Legal principles doesn't determine outcomes in legal cases and interpretation shifts due to policy assumptions

Feminist Legal Theory

• It reveals how patriarchy functions regarding womanhood
• Liberal Theory framework emerged in the mid 20th centering inequality sustained by gender
• The framework aims for a society where law neutral, creating equal access
• Criticism includes promoting make dominance, there were failures to analyse the patriarchal structure and the focus was mostly on middle class women
• Critiques include; formal equality doesn't produce equality of outcome and multiple forms of repression are not always acknowledged
• Standards of proof adopts a more male prospective

Radical Feminism

• There shouldn't be comparisons and there shouldn't be equivalence of women of men
• The goals is to create female liberation
• Catherine MacKinnon ties female inequality to patriarchal dominance and law supports the subordination and sexualisation of women

Study notes on sociological and critical perspectives of law, including the works of Durkheim, Marx, and Foucault. Also explores Critical Legal Perspectives and Feminist Legal Theory. Focuses on the evolution and societal impact of law.