LWSO 201 Topic 3: Theories of Law & Society PDF

LWSO 201 Introduction to Legal Studies Topic 3: Theories of Law & Society  1) Overviewed historical time periods of society and law 2) Revisited the development Review model approach 3) Framed the history of society and law around colonialism...

LWSO 201 Introduction to Legal Studies Topic 3: Theories of Law & Society  1) Overviewed historical time periods of society and law 2) Revisited the development Review model approach 3) Framed the history of society and law around colonialism  1) Discuss theory and Sociological theory 2) Overview classical and contemporary theories of Law Objectives & Society 3) Consider some current theoretical issues and trends in Law & Society  Theory: a simplification of the world (or a particular phenomenon) in order to understand it Are sets of assumptions to Theory offer general explanations of empirical phenomena Theories must be falsifiable  Theory in Sociology Sociological theory regards the structure and functioning of society and the behavior of people vs. Social theory: less focused on testable theories, more focused on critical theory and potential alternatives Prominent theories include: socialization theory, structural functionalism, rational choice theory, Marxism, constructivism, etc.  Paradigms in Society I: Consensus Paradigm & Functionalism Consensus paradigm: understands society as a product of consensus -Emphasis on social cohesion, solidarity and stability in society Functionalism: understands social phenomena in terms of their broader functions in society -I.e. Emile Durkheim Law: as neutral framework for maintaining social integration and stability -Law reflects compromise and consensus = a pluralist conception of law  Paradigms of Society II: Conflict Paradigm Conflict paradigm: understands society as a product of contending interests and conflict -Society viewed as an arena of struggle over limited resources -Society understood to be held together by coercion -i.e. Karl Marx Law: as an instrument to mitigate conflict -Law used by the powerful to maintain social order  Development Model Approach to Law & Society  Classical Theorist I: Marx Karl Marx (1818 – 1883): German philosopher and political economist Marxism: society rests on an economic foundation (economic determinism) -Historical materialism: history is shaped by economic factors and is changed through inherent contradictions in the mode of production Law: as a product of evolving economic conditions -Law is used as a tool of the ruling economic elite to maintain power over the lower classes Classical Theorist II: Weber Max Weber (1864 – 1920): German sociologist and political economist Placed emphasis on reason and the idea of rationalization -Viewed society as increasingly becoming rational in nature with reason replacing tradition and faith 3 types of authority in society: i) traditional, ii) charismatic and iii) rational-legal Law: distinguished between rational law and irrational law  Classical Theorist III: Durkheim Emile Durkheim (1858 – 1917): French sociologist Functionalism Emphasis on social solidarity: i) mechanical solidarity and ii) organic solidarity Law: as playing a central role in social solidarity -2 types of law: i) repressive/penal and ii) restitutive -Law with a functional role around social solidarity  Classical Sociolegal Theorists Sociolegal theory: socially situate the study of law Albert Venn Dicey: theory on the influence of public opinion Oliver Wendell Holmes, Jr: theory of legal realism E. Adamson Hoebel: comparisons of non-Western, Indigenous legal systems  Contemporary Theorist I: Foucault Michel Foucault (1926 – 1984): French philosopher Emphasis on the relationship between power and knowledge Viewed power as omnipresent -Focused on the notion of disciplinary power Law: as only one element of the expansion of power  Contemporary Theorist II: Habermas Jurgen Habermas (1929 – present): German philosopher Theory of communicative rationality -Communicative reason helps to establish shared understandings -Can help to establish a universal moral framework -However, strategic/instrumental rationality has colonized communicative rationality Law: emphasis on critical legal theory (focus on power) -Forwards idea of communicative rationality for a just legal system  Contemporary Theorist III: Black Donald Black (1941 – 2024): American sociologist Viewed law as a form of conflict management Forwarded law as quantifiable Emphasis on 5 factors determining the nature of law in society: i) social stratification, ii) morphology, iii) culture, iv) social organization and v) social control Current Theoretical Trends: Critical Legal Studies Critical legal studies: critical of the rationales, purposes and assumptions of law and legal systems Asks ‘law for what and for whom?’ Rejects law as value-free -Views law as embedded within power relations Current Theoretical Trends II: Feminism Feminist legal theory: analyzes the relationship between law and gender -Identifies the gendered nature of law First wave feminist jurisprudence Second wave feminist jurisprudence Third wave feminist jurisprudence Current Theoretical Trends III: Critical Race Theory Critical race theory: understands racism as an inherent part of modern society (despite the fact that the notion of ‘race’ is a social construct) -Systematic and systemic racism In terms of law, concerned with questions of discrimination, oppression, difference and inequality -Unconscious racism is often ignored by the legal system