Soc Law Figures

Henry Maine

Theory: Law is developing in a particular way, getting more complicated as we move forward

• The shift from “status to contract”

  • Normative claim

Father of Sociology: Emilie Durkheim

Theory: Society is built on consensus, law reflects consensus, which holds society together

• Law is a new source of moral authority

• Crimes are acts which violate a society’s shared norms

  • Morality comes from what society thinks is wrong and right

Max Weber: Interest in Rationality

A methodical style of life and a set of social institutions oriented around rules and means-ends relationships

• A rise of institutions that encouraged capitalism 

Max Weber: Political Domination

Domination: the means by which a follower acquires its followers

Authority: a type of domination where the leader’s command is accepted upon as if the individual valued the action for its own sake

Max Weber: Analysis of Law

Rationality

Formality

• Better for capitalism

Substantive

Rationality

To what extent are decisions based on logical, fair, and consistent rules?

Formality

To what extent are decisions made by applying the same rules to all?

Substantive

To what extent do decisions prioritize ethical or political goals (e.g., justice), sometimes instead of formal procedures?

Karl Marx: Two Classes

Viewed society as a struggle between two economic groups with incompatible economic interest

• The Bourgeoisie: Wealthy, ruling class under capitalism

• The Proletariat: Laborers

Karl Marx: Class Relationship

Law serves as a coercive role, the bourgeoisie use law to impose their will on the proletariat to make it more difficult for them to resit their explotation

Karl Marx: Theory of Law

• Class based economic interests will directly change the law

  • The proletariat will be the ones to drive social change

• Never developed a clear theory, but inspired other sociologists to explore the concept of law and power

Karl Marx: Revolutionary Praxis

Argued that philosophy and sociology should not just explain the world, but be used to assist in social change

Karl Marx’s Analysis of Capitalism: Alienation

When humans lose control over their “unique creative faculties,” leading to estrangement in human nature from their human nature as a consequence of the division of social classes under capitalism 

Human rights are reduced to property rights 

Marx: Ways Workers Become Alienated

• They produce goods for the market but do not own or control them 

• They have no control over how they work

• No genuine human connection (employer-employee)

• Institutions dominate rather than serve them 

Antonio Gramsci: Hegemony

Why do workers go along with capitalism, despite its inherent inequalities?

Antonio Gramsci: Concessions from the Elites

Over time, economic elites may need to concede certain benefits to workers by passing labor laws

Ex: minimum wage, weekends

Antonio Gramsci: Shared Consciousness

This political process creates a shared ideology that reproduces social relations and conceals contradictions within the capitalist system

Antonio Gramsci: Manufactured Consent

Differed from Marx by suggesting that ideology doesn’t just serve to distract, it actively ties classes together and manufactures consent

• Economic elites control culture through media and education

Antonio Gramsci’s Theory of Law

Believed that law’s (and other social institutions) role works to help transmit this shared ideology across generations which instill values of the ruling class

William Chambliss: Theory of Law

Focused on the relationship between laws and the social settings in which they emerge, how they change over time

William Chambliss: Vagrancy Laws

Emerged to force laborers to accept employment at a low wage in order to ensure the landowner could always have enough workers and pay them less

W.E.B Du Bois: Theory of Law

The law works to perpetuate both legal and racial domination (built on Marx)

W.E.B Du Bois: Empirical Data

The Philadelphia Negro (1899)

• Differences in criminal sentencing based on race 

• Policing of certain crimes by race, focus on petty theft over white collar crime 

• Jim Crow Laws were created to foster interclass between poor and wealthy whites

W.E.B Du Bois: Wage of Whiteness

Prevented greater class solidarity and weaken labor unions

• Whites felt special because they weren’t black

Race in Law

Law is politics, not neutral, made to maintain hierarchy/privilege, and a tool of the elites

• Racism is enshrined in law

Critical Race Theory 

Argues that race does not exist as a pre-legal category, it is a social construction, determined by the law itself

Law plays a role in defining racial categories

Craig Haney: What is Race?

Historically contingent social systems of meaning that attach to elements of morphology and ancestry 

Craig Haney: Racial Attachments to Law

Race is a product of social processes, these meanings then are reproduced and solidify into material conditions which impact (citizenship, property rights, wealth)

Catharine MacKinnon: Theory of Law

Considers the relationship between society and the law, no neutrality (written from the male perspective)

MacKinnon’s Definition of Sex

Physical and physiological differences between men and women

MacKinnon’s Definition of Gender

Behavior traits and social positions that society attributes to men and women

MacKinnon: Difference and Dominance

There is an inherent tension between attempts at equality by sex

Sameness standard: women measured against men

Distance standard: our womanhood measured by distance 

MacKinnon: Distribution of Power

In law, there is an unequal distribution of power, feminists aim to make things equal for women as they are to men

Kimberlé Crenshaw: Intersectionality

People can face multiple types of discrimination at the same time