Sociological Jurisprudence Summary PDF

Sociological Jurisprudence Sociology Positive Interpretative Sociology of Law Part of sociology that seeks to understand the ‘social reality’ of law in all its dimensions Lawyers limit the term ‘law’ to the formal law of the state, comprising statutes, official...

Sociological Jurisprudence Sociology Positive Interpretative Sociology of Law Part of sociology that seeks to understand the ‘social reality’ of law in all its dimensions Lawyers limit the term ‘law’ to the formal law of the state, comprising statutes, official commands, judicial precedents and such like. Sociologists have a much broader view of the law. Law in this wider sense encompasses all forms of social controls, including customs, moral codes and internal rules of groups and associations such as tribes, clubs, churches and corporations. Sociological Jurisprudence The sociological jurist starts from the opposite end, the organized form of control that is the lawyer’s law and moves towards sociology in search of ways to improve the capacity of law to serve the ends of society. He holds that legal institutions and doctrines are instruments of a specialized form of social control, capable of being improved with reference to their ends by conscious, intelligent effort. He thinks of a process of social engineering. Henry Sumner Maine Legal systems go through definitive stages, from status to contract. Law shifted away from dealing with people as members of specific clans and with particular statuses to dealing with individuals with certain rights, obligations, and contracts. Karl Marx What distinguishes human beings from other animals is the fact that they are able to produce their means of existence. The means of producing livelihood determines the nature of society. 1  The law of a society, Marx rightly observed, changes to reflect the ways in which people produce the means of their livelihood. The way production and the creation of wealth are organized in a society shapes most other aspects of that society, including law. Every social system has a base and a superstructure. Economic relations constitute the base of society. Law, state and the popular consciousness (understanding) of the base constitute the superstructure. The base and superstructure are inter-dependent. The superstructure changes to reflect the changes in the base. Max Weber A society’s legal system reflects its prevalent social relations. Weber developed a theory about the progression of law from its ancient roots in tradition and magic to its current rational form. He identified the causes of the rationalization of law with the needs of the capitalist economy and of the bureaucratic state. Law formation begins with individual actions and plain habits. When these habits become diffused among a group of individuals, they become ‘incorporated as “consensus” into people’s semi-conscious or wholly conscious “expectations” as to the meaningful corresponding conduct of others. In simpler terms, when people begin to behave similarly in similar conditions, social habits are formed as if by unconscious agreement and individuals count on these habits in going about their lives. These consensual understandings eventually acquire the guarantee of coercive enforcement, distinguishing them from mere ‘conventions’. The primitive judge is usually a charismatic figure who will draw on magical inspiration to decide the case. Legal change in primitive society occurs mainly through the case law method. Legislation is unknown and the idea that a human agent can make or change the law does not occur to the primitive mind. One of the important side effects of the appeal to magic was the formalism that attended the judicial process. Conscious law making first appeared in the form of compacts among heads of kinship groups or chieftains gathered as assemblies. 2  The formation of a class of professional legal experts is an important development in the rationalization of the law. It also signals the arrival of the capitalist era, with its demand for legal certainty and the guarantee of property and contractual rights. Weber identified two kinds of rationalization – formal and substantive. Formal rationalization of the law demands that cases are decided according to established law, thus reducing the capacity of judges to adjudicate according to their subjective sense of justice or even to the popular view of what is just. Substantive rationalization seeks to make the law more pliant, to produce what is thought to be expedient or just outcomes. Formal rationalization enables people to know in advance the ‘rules of the game’. The pursuit of substantive justice usually entails departures from the formal rationality of the law. Weber, unlike Marx, did not reduce all social relations to economic relations. Law protects not only economic interests, but also personal security and purely ideal goods such as personal honor or the honor of divine entities. Law also guarantees political, ecclesiastical and family structures, and as well as ‘positions of social pre - eminence’ that are ‘neither economic in themselves nor sought for preponderantly economic ends’. However, Weber argued that a modern economic system cannot exist in practice without a public legal order. This requires a state with monopoly power to coercively enforce the law. Emile Durkheim A collection of individuals is not a society simply because they happen to be in close proximity to each other. A society exists because of interdependence (solidarity) and bonding among a group of individuals. The principal cause of solidarity is the division of labor and specialization. The division of labor has a more important (moral) function – that of bringing people together in a diverse society. The division of labor tends to be less pronounced in primitive societies, in which individuals are very similar to each other. The visible evidence of social solidarity is found in the law of the society. Law, in other words, mirrors society. Normally custom is not opposed to law but is the basis of law. A custom arises in opposition to law only in exceptional circumstance. This is when the law no longer corresponds to the state of existing society. Laws can be classified according to the nature of the sanctions. There are two types of sanctions: repressive and restitutive. 3  Repressive sanctions take the form of punishments. Restitutive sanctions are meant not to inflict suffering but to restore the parties to the position that they were in before the unlawful act was committed. Restitutive law does not impose punishments but repairs relations to where they stood before a breach of the law occurred. The two kinds of law represent two kinds of solidarity. Repressive law indicates a mechanical form of solidarity and restitutive law is the reflection of an organic form of solidarity. In premodern societies like tribal groups of hunter-gatherers, where solidarity was based on the fundamental similarity in people’s daily material lives, consensus over moral values was strong and deep. Where people’s material conditions are similar their values are likely to be shared as well. In modern societies with a lot of division of labor and occupational diversity, it is our differences that bring us together. The division of labor makes us literally dependent on each other for survival Restitutive law – and hence organic solidarity – is predominant in societies that have a high degree of specialization and division of labor. Conversely, societies made up of like individuals and little division of labor will have mainly repressive law, indicative of mechanical solidarity. Civilized life is based on countless dealings among thousands and millions of persons, most of whom are strangers. Restitutive law grows out of the nature of these relationships. Marx and his followers believed that the division of labor inevitably leads to conflict among classes. Durkheim thought otherwise. The reason is that such close contact will reveal mutual dependence, and breakdowns in relations can be quickly identified and repaired. Eugen Ehrlich The human race became social beings through the process of natural selection. Those who learned to associate with others gained a survival advantage over those who did not. As society advanced there came into being many other associations, such as the commune, the state, guilds, social clubs and agricultural and industrial associations. A person usually belonged to several of these associations. Overall society was made up of the interaction of these associations. 4  Ehrlich distinguished a legal norm from what he called a legal proposition. A legal norm is a rule found in the form of actual practice. The legal norms in the form of social practice exist even without the legal propositions. There are times when the inner order of an association is disrupted by a breach of its legal norms. A legal norm, in Ehrlich’s definition, is a rule that members of an association observe without compulsion. The judge will apply legal propositions (law in the books) as well as moral and policy considerations in the exercise of judicial discretion. Ehrlich called these the norms for decision. Ehrlich considered the state to be one of the associations (in fact the largest) that make up society. It is a product of social need, of the growing complexity of relations among the intertwined and interdependent associations. It is still possible in modern society to have associations with their own rules of behavior. Society (the grand association of associations) uses the state as its organ to impose its order upon the associations that belong to it. The earliest statutes were in the form of agreements among those affected by the instrument. Rulers, even those whose powers are not constitutionally limited, cannot make law as they please. It must overcome social forces that operate independently of the state. Military power is not a match for these social forces in the long term. It may defeat foreign enemies but is ill-equipped to impose permanent ways of life on the population. Roscoe Pound In primitive societies, the law aimed at nothing more than keeping the peace. The law was not an instrument for social change. Law’s task is to recognize and adjust competing interests with a minimum of friction and waste. Interests are claims that persons make of the legal system. Some of these claims are already recognized by law, but there are others that are not so recognized. Pound identified three kinds of interests: individual interests, public interests and social interests. These interests are frequently in conflict. There are incessant efforts by individuals and groups to gain recognition of new rights and to defend established rights. The resulting conflicts have to be resolved by the legislature and, in the absence of legislation, by the courts. How should the different competing interests be valued? Pound saw no grand theory to deal with this question. Legislatures resolve them according to political 5  convenience, but how should courts go about it? Pound offered only the most practical commonsense advice: namely, that courts should secure as much as possible of the scheme of interests as a whole with the least friction and waste. Michel Foucault The economic structure does not inexorably determine power relations or the exact form of law and social control. Power is decentralized, dispersed, and fragmented, constituted as it is of actual social practice and the discourse (or talk) that is a key element of practice. Law and legal systems from this perspective shift with changes in discourse and “knowledge”. Foucauldian post-structuralism highlights the microprocesses of power and the discourses and knowledges that comprise them. “Panopticism” - a metaphor for modern society with its ever-widening capacity for scrutiny of the individual. Punishment and social control policies are organically linked to sociocultural forces in ways that can be explained after the fact but that are often unpredictable. Liberal Legal Theory Liberalism is a tradition in political and legal theory that gives primacy to individual liberty in the political and legal arrangements of a society Kinds of liberalism o Natural rights theorists o Utilitarian thinkers o Classical liberals o Welfare-state liberals The anarcho-liberals argue that all the services that the state provides, including defense and the security of person and property, can be arranged by contractual arrangements among free individuals. Classical liberals, on the contrary, believe that the state is inevitable but should be retrained. They generally embrace the concept of the minimal or ‘night-watchman state 6  Law emerged in response to the coordination needs of the community and is not in itself a source of conflict. Liberalism in all its forms is formally committed to the ideal of the rule of law as the means of securing liberty. The rule of law serves individual liberty by curbing arbitrary actions of officials and making the law more certain and predictable. There are three essential conditions for the rule of law: (a) the law must be knowable and reasonably stable; (b) facts must be ascertainable to a generally acceptable standard; and (c) the making of the law and the application of the law must be distinguishable to an appreciable degree. Liberals count on constitutional devices such as the separation of powers (with independent courts), due process, representative democracy and the constitutional guarantees of basic rights to promote the rule of law and secure individual liberty. Critical Legal Studies The CLS movement had its roots in the anti-capitalist and anti-liberal intellectual revolt that swept the Western world in the late 1960s and early 1970s. The central charge that CLS levels is that law as developed in liberal societies is oppressive. Law formalizes oppression, makes it respectable and indoctrinates people to accept it. The law, according to CLS, splinters society in all sorts of ways – between traders and consumers, employers and employees, landlords and tenants, men and women, straight and gay, white and black, locals and foreigners, skilled and unskilled, and so forth. CLS scholars share the view that society has a fundamental contradiction, or paradox. The contradiction is that individuals cannot do without others, but also need to be free of others. In other words, we want society as well as autonomy. Other CLS writers have seen different contradictions in liberal theory. M Kelman claimed that the positivist method of the liberals leads to the identification of the social good with the aggregate of personal preferences ascertained through markets and voting systems. Values, he said, are not merely matters of preference or taste but universal maxims. 7  To make sense of the world – and indeed to survive in the world – we have to think and talk in categories. These categories are abstractions. They are not real things but ideas that group things and events for convenient reference. Legal language is made up of categories. CLS scholars regard the law as ‘reifying’ these abstractions – treating them as real things. The categories stereotype or pigeonhole individuals into particular roles and destroy their sense of personhood and interconnectedness. CLS calls this alienation. The alienation is blamed on liberalism and capitalism. The source of this absence of interconnectedness is the passivity, impotence, and isolation generated by the structure of groups, as those groups are themselves organized by the movement of capital. Within these groups no one is normally aware of his or her sense of un-connectedness, passivity, impotence, and isolation, because this felt reality is denied by the socially communicated reality. CLS says that liberals believe in the neutrality of law in a deeper and more abstract sense. Law is neutral in nature because it can serve different social values and aims. The form of the law retains its neutrality while its content is politically changed. CLS scholars disagree. There are two kinds of law: one consisting of rules, and the other of standards. At one end of the spectrum there are rules that can be mechanically applied. In contrast, standards allow decision makers to tailor the law to what they think is the right outcome considering the situations of the parties and of society generally. Standards, Kennedy argued, are also not value neutral. What is ‘reasonable’ or ‘unconscionable’ or ‘good faith’ is a matter of moral or political judgment. CLS rejects Marxist-type revolution and dictatorship as an oppressive alternative. The contradiction within society cannot be eliminated because it is society that has created and sustains it. Postmodernism The postmodernist attack aims at the heart of all science, including legal science, that is based on empirical observation and logical reasoning. If knowledge of the law and of facts is subjective, the rule of law is impossible. Denied the possibility of objective knowledge. What we sense is mediated by the nature of our sense organs. We live in a world of perception. Nietzsche argued that the notion of a true world outside our perception of it is a useless and superfluous idea. 8  The world of the scientist, though different from the world of mere lawyers, is nonetheless built on perceptions or mental pictures of things that are assumed to exist outside the mind. Hence, science presupposes the presence of a physical world. However, no scientist or philosopher has shown conclusively that the perceptions of our mind have anything to do with an external reality, although no one has established the contrary either. First, we cannot show that a world outside the mind exists without using our minds. Second, even if there are things out there, we cannot be sure that our perceptions represent things as they are. Philosophers have responded differently to these problems. Some maintain that there is a real world outside the mind. They are called ‘realists’. Then there are ‘idealists’ who maintain that all we know are products of the mind. According to postmodernists, knowledge is power in a deeper and more oppressive way. Since there is no objective knowledge, what passes for knowledge is simply claims of truth legitimated by convention or by some ‘epistemic authority’ that determines the criteria by which truth is established. What is scientifically true is determined by the norms set by the scientific community, and what is legally correct is determined by the modes of reasoning of the legal fraternity. Thus, knowledge is seen as a form of power. Traditional jurisprudence readily accepts that law is often a matter of convention (custom) or the result of authoritarian rule (as in the case of the commands of a sovereign). However, lawyers believe that the law, once established, is a matter of objective knowledge. If the post-modernist thesis is true, nothing is objectively knowable and hence there can be no correct or privileged interpretation of the law. Law, whether it consists of custom, judicial precedent or express enactment, is objectively knowable, as are the facts to which the law is applied. The postmodern thesis that all knowledge is subjective, conventional or dictated by authority radically undermines this notion. A claim of the right view can be justified only by convention or authority. Jacques Derrida Western philosophy is founded on the belief in the possibility of knowledge of the world around us. Although we may not be able to know directly and accurately the things that are outside our minds, we have perceptions about them and reliable knowledge can be gained from perceptions. 9  Thought is possible only through language, hence there is nothing, even perceptions, before language. (In the beginning was the Word, and the Word was with God, and the Word was God). There is no such thing as a perception that is independent of language. There is nothing outside texts. People use words thinking that they represent real categories such as ‘man’, ‘woman’, ‘child’and‘dog’. Derrida called this kind of false category ‘logos’ and the belief in such categories ‘logocentrism’. If there are no real objects to which words can refer, words can only refer to other words. The aim of deconstruction is to show that words have no stable meanings at all. It is common sense that you cannot know what a dog is without also knowing something about what a dog is not. Included in the notion of a dog are traces of the non-dog. However, Derrida’s point is that all that a dog is not cannot be determined, now or ever. Every case is unique, and hence calls for an ‘absolutely unique interpretation, which no existing, coded rule can or ought to guarantee absolutely’. In applying a rule to a case, the judge is actually saying that the rule is such that it extends to the case at hand. Where a case is clearly within a rule or precedent, it may appear that the judge is making a mechanical decision. This is not so, as the judge must contemplate the meaning of the rule and the nature of the case, however simple the exercise may seem. It is impossible to do justice by applying rules because each case is unique. If language is inherently undecidable, it is difficult to see how there can be any rules at all. The ultimate decision is uninformed by any rule; it is an act of madness. Feminist Jurisprudence Feminist jurisprudence finds liberal legal theory and methods of reasoning to be largely responsible for the oppressed condition of women. Liberal feminist jurisprudence Liberal feminism is based on the belief that women are rational autonomous individuals who are entitled to the same rights as men. 10  Liberal feminists realized that despite formal legal assurances of equality they were not always equally treated by the law. Liberal feminists argue that the law sometimes treats men and women differently when it should treat them the same way and treats them the same way when it should treat them differently. An important debate within feminism concerns the sameness of men and women and the difference between them. Should the law treat men and women as formally equal, or should it recognize women’s special circumstances and needs? Liberal feminists tend to favor the sameness thesis. They say that differences between men and women have been used to discriminate against women. Cultural Feminism Cultural feminists emphasize differences between men and women. Liberal notions of law, legality and legal process, they believe, are shaped by masculine values and views of the world. Women are ‘more nurturant, caring, loving and responsible to others than are men. Women think in terms of the needs of others rather than the rights. The legal system, from the cultural feminist standpoint, fails to reflect the way women live their lives and think about life. It is too focused on rights and individuality that reflect the male nature. Radical Feminism Radical feminists agree with cultural feminists that women are different from men. Unlike cultural feminists, they believe that these differences are constructed through male domination. Men have defined women. Men have power and women are subject to power. The dominance approach calls on feminists to focus on rape, sexual assault of children, which is endemic in the patriarchal family, the battery of women in a quarter to a third of homes, prostitution and pornography, which exploit women for profit. Cultural and moral transformation of male dominance. 11  Postmodern Feminism Postmodernists deny that knowledge can be objectively established and hold that all truths are contingent on subjective experience. Thus, what is true from the male point of view may not be true from the female point of view. Categories, such as ‘man’ and ‘woman, are ‘socially constructed. Feminists conclude from this proposition that these categories have been established by men according to the masculine point of view. According to deconstruction theory we create our worlds through myth and allegory. Cornell’s answer is that women should create their own allegories and myths to counter those that are used to suppress them. Women should write their own story and create their own ‘reality in which they achieve a superior way that is valued’. 12