Sociological Approach to Law: Durkheim and Solidarity

Sociological Approach to Law

• Law functions as a social phenomenon
• Understanding law goes beyond merely reading the written rules
• Law acts as a tool for societal control, separate from a normative legal approach that focuses solely on describing law and legal practices.
• Rules, concepts, and principles are shaped by larger society, and sociological approaches explore this reciprocal shaping.
• Law evolves across time and place, necessitating examination within its specific context

Émile Durkheim

• Émile Durkheim was a French philosopher that lived from 1858-1917.
• Durkheim studies social order during industrialization
• Durkheim identified two types of social solidarity and their impacts on law

Mechanical Solidarity

• Mechanical solidarity is typical in primitive societies with a homogenous group
• Absence of strong interpersonal bonds, members can leave without affecting the whole
• Collective consciousness is the shared beliefs of the average member
• Crime offends collective consciousness where everyone shares the same belief
• Dominant legal form is penal or repressive law that forbids actions against shared values
• Punishments seek vengeance, injure the offender, and reinforce social solidarity.

Organic Solidarity

• Weak collective consciousness characterizes modern societies.
• Specialized roles in labour create interdependence where distinct skills are needed for survival
• Society functions like a body, different organs working together
• Organic solidarity relies less on repressive law as society is interdependent
• Focus is on managing conflicts and improving cooperation.
• Some shared values remain, indicated by the continued use of recessive law
• Affirmation of collective beliefs makes recessive law functional.
• Weakening collective consciousness does not negate the function of repressive law against collective beliefs.

Critiques of Durkheim

• A critique is that law is shaped by social structures and power dynamics, not individual issues
• The impact of identity is not considered in law development and implementation
• Focuses on removing "risky" individuals, disproportionately affecting marginalized groups, with examples like California's three-strikes law.

Karl Marx

• Karl Marx was born in Prussia in 1818.
• Marx sought to end politically oppressive orders amidst sociological, political and economic changes
• Marx's work, including "The Communist Manifesto", advocates for a classless society,
• Class antagonism opposes functionalism

Class Antagonism

• Class antagonism involves Mode, means and social relations in production
• Mode of production is how goods are produced and distributed
• Means of production refers to the used tools and instruments
• Social Relations indicates how individuals relate to one another within production

Feudalism vs. Capitalism

• Feudalism emerged in England after William the Conqueror
• The monarch owned all land, which was distributed to nobles
• Nobles then divided their land among vassals, while peasants lived and worked on the land, paying taxes to the nobles
• Transformation occurred after land privatization, reducing the king's ownership, increasing noble's wealth, and displacing peasants
• Agriculture transitioned into farming equipment and animals. Peasants paid taxes/rent to nobles/monarchy
• Move away with invention of private property

Organic Solidarity and Capitalism

• Private land ownership led to the rise of the bourgeoisie, accumulating significant wealth
• Increased wage-labor economy as peasants were forced to sell their labor to the bourgeoisie
• Mode of production became creation/exchange of commodities
• Factories and Machines became the means of production
• Social relations of production saw the bourgeois owning factories/machines while peasants worked for wages.
• Instrumentalists suggest that law is used to control lower classes

Marxism and the Law

• Law is coercive, forceful

Instrumentalism

• Instrumentalism means that law is a tool for dominant class control
• State works according to their wishes
• Use of law to protect property and consolidate power
• Criticisms suggest that the ruling class is not unified
• Critique is that legislation protects against capitalist interests through standards and laws

Structuralism

• Structuralism means that law upholds capitalism
• Law supports profitable accumulation and maintains social harmony
• Legitimation requires the state give an appearance of equality through rule of law, where everyone is subject to the law
• Corporate crime is rarely prosecuted due to fears of economic harm, unlike driving offences
• It is unclear how it can promote profit without the direction of dominant interests

Michel Foucault

• Michel Foucault was born in France on October 15, 1926
• Foucault employed a genealogical method to produce a "history of the present"
• Governmental practices development over time in his analysis
• Analysis centers on how things have been created/developed to get to where they are today like the criminal code

Foucault on Power

• Power is not monopolized by the powerful
• No binary division of power between rules and rulers
• Power is said to exist everywhere
• Power wielded by university in degree requirements
• Think beyond the state, and consider the micro-physics of power
• Power can be both repressive and productive
• One has power over the other
• Repressive power is the use of force to change someone's actions or their way of thinking
• Productive power enables/motivates/encourages people to act in a certain way
• Power always provokes resistance
• Multiple types of forms of resistance

Foucault interpretation of power

• Fluid and dynamic version of power, when being compared to Marx
• Power does not only exist in the upper class ruling
• Power is not only wielded over the working class
• Power can be productive leading to destabilization of power

Foucault on Law

• Law as one tool used by the state to exert power
• Law plays a role in different types of power
• Sovereign power is Single monarch where power is centralized
• Wield power through law
• Law-direct reflection of ruler's power
• Breaking the law is an offense against the monarch/ sovereign
• Bodily, bloody, and spectacular punishment is applied like hanging and flogging
• Public torture reaffirm power of the monarch
• Barbaric results leads to resistance and revolution

Foucault Enlightenment

• Comes with the advancement of the enlightenment
• Different approach to punishment of the sovereign
• Disciplinary power is power over the human condition
• Government seeks to discipline body and mind of law transgressors
• Multiple techniques and timetables structure life
• Techniques imposed by multiple people
• Governmental power used to manage the population through programs generated by experts
• Growing administrative state administers all with techniques of governance, and surveillance
• Power through wealth, government, and law controls the ruling class to maintain inequality
• Power is dispersed across institutions like schools, prisons, and medicine, influencing thought and behavior
• Focus on class struggle, while Michel Foucault emphasized control through knowledge, surveillance, and social norms
• Both don’t talk about law too much

Critical Legal Perspectives

• Key questions are reviewed from the course like, where does law come from

Common Law

• Legal tradition where law is written down as legislation and identified in precedent
• Precedent = judge made law that binds decisions of other courts
• Stare decisis – “stand by decided matters”
• Emphasizes hierarchy of courts
• A tool wielded by judges when making a decision from jurisdictional authority to decide in law

American Legal Realism

• Emerged in the early 20th century
• Challenges "formalistic approach"
• Common law concepts and standards are “neutral” or “objective
• Challenges that general legal concepts or general legal rules determined the results in particular cases
• Not neutral and objective, and hides moral/policy assumptions

Legal Personhood

• “qualified persons” are eligible, and historically, “persons” was interpreted as men
• BNA Act section denies women voting rights.
• Right to vote or hold office must be explicitly stated, confirmed by Supreme Court of Canada in 1928
• References to legal figures should include women
• Seeks legal advice from a group about the opinion of “qualified persons”

Legal Interpretation

• Privy Council decision on October 18, 1929
• The constitution is not stagnant and law should be in context
• Women hold public office that is not outdated

American Legal Realism and tenants approach

• Tenants approach is unclear
• People were uncomfortable especially post WWII and the Cold War

Critical Legal Studies

• The movement that stems from America law schools in the 1970s
• Legal rules and principles determine the outcome
• Law shifts over time and policy

Feminist Legal Theory

• Theories that focused on patriarchy and supports for men
• Subordinates and exploits women
• Promotes formal equality that is written neutrally
• Acknowledges the differences between men and women

Liberal Theory

• Feminist with gender inequality
• Inequality by gender norms
• Want equal treatment in the way that men did and fair and equal
• Seeks neutrality, opportunities and resources
• Men standard for women to achieve equality

Liberal Theory-Critique

• Focuses on middle-class structure
• Used a male perspective
• Fails to analyze the patriarchal structures

Cultural Feminism

• Formal Equality does not equal equal outcomes
• Fails to acknowledge different forms of oppression

Radical Feminism

• Argues that there is no comparison
• Says it needs to be female liberation
• Catherine MacKinnon is the proponent
• Society is male-centered that supports patriarchal domination
• Law perpetuates this

Explore the sociological approach to law, emphasizing its role as a social phenomenon shaped by society. Examine Émile Durkheim's theories on social order during industrialization. Discover mechanical solidarity, collective consciousness, and their effects on law.