Sociological Perspectives on Law

Durkheim - Society Sui Generis

view on crime is a normal part of society; it performs important collective functions (Sociological positivism and a functional perspective - shared morality based on norms and beliefs). Law is not defined as an independent entity with its own essence (there is no god that just creates laws). Law is conceived of as the product of a given society; he predicates law on the social

sociological positivism

society as organism, crime is one of the functions of society. Believes we can remove criminals from the circles for engaging with crime and this a societal collaborative process whereby we set a standard that that behaviour is not acceptable and 'othering'. Reinforces our commitment to societal ideals

law in society by way of legal institutions

because it is societal memebers interacting with law on a minute by minute basis, to understand the role, cause and effect of law in society. Society has to come first before understanding its law, which makes laws distinct in different societies. We need to understand the glue that holds it together - social solidarity

Durkheim - social solidarity

how collective society reacts and responds and creates law, individuals are entities but they are entities within society. Society can be understood as a social being that is a thing into and of itself.

social facts

within entiity of society, are ways of acting, thinking, feeling, external to the individual and with the power of coercion. tldr - things you do as an individual as dictated by the forces surrounding you, those forces are - formal and informal social control. and in every society there is a collective consciousness

Collective consciousness

totally of beliefs of all members of society that form its own independent system, unique to that specific society. Individuals and their consciousness are created thru social forces because there is nothing in social life that is not in the consciousness of individual s

two sub types of social solidarity

will differ between what type of society it is, primitive/ early societies, complex/advances societies. which have diff types of social solidarity. mechanical solidarity is in primitive societies and organic is in complex - organic has functional inter-dependance

functional inter-dependance

this is what characterized the formal division of labour in organic societies. the relationships that are built based off need with other members of societies with distinct skill sets, but society is made up of inter reliant forms on each others labour which helps society function. this draws you closer together societally, and this awareness binds you to community members. ex- u need to go to work, hire someone has to take care of kids.

social evolution

influenced durkheim, is how simple organisms turn into complex organisms and gradually they increase in specialization. the issue is that this view of evolutionary society leans heavily into eugenics, colonization bc of the belief that complex societies were better because they were more advanced. Durkhiem says to use law as the measurement for social solidarity bc law will offer an indicator of moral feelings, indicators are not exact but assist in finding a pathway to understand social change

law in society

outside of law, to study it from the outside.

Durkheims law

law is social fact, it is a symbol. Society is necessary condition for morality. It is based off social influences, it is both an index and expression of underlying social morals. Properly law etc.. stem from law in society. You need a society before you can have a social morality; society becomes before everything, you learn it. morality will always vary that varies with the kind of solidarity at hand.

Sociological Jurisprudence

viewed as law inextricably connected to the social and psychological processes use to decide what law is in a given context. Judges do not adjudicate the law through a neutral application of legal rules; rather extra legal factors (social, cultural psychological) determine how they will decide. cannot divorce law and society

legal realism

Law could be used pragmatically to reform society for the better, pass legislation to create positive change for Tenement People.

Tenement Housing

rich becomes interested when there is no longer working when criminal activity or riots by the poverty folks. How do you affect positive change. Pound said - thru legal decisions. Tenement house act of 1901 - abolished the squallier and sub standard living buildings and creates building codes in order to rent property and mandated proper ventilation and had to be some indoor plumbing/sink, this begins the idea that law can be used to create positive change

Oliver wendell Holmes on buck v bell case

hearing of a case of force sterilization of an institutionalized woman who was 'feeble minded' as a result of her mother being similarly labeled & child, bc she had children out of wedlock - she was raped. Virginia Law used this as evidence to force sterilize her to eradicate social problems for the benefit for society, other factors of the case were not considered. The lawyer that defends her is a supporter of eugenics, but he does get the court at last has standing but appeal against forced sterilization is denied. Holmes then endorsed this decision by saying it will eradicate feeble minded and sterilization was a legitimate method to achieve that aim. Holmes said that is it better for the world, than having to kill people, it is better to kill people before they are born. this is deemed to be progressive, the judgment is influenced by the public opinion which saw sterilization as acceptable at the time. at this time of her death, she was noted as a woman with normal/average intelligence. This became the genesis of nazi sterilization law.

holmes legal realism

jurisprudence is a practical science that must attend to extra legal factors to predict how judges will decide (and so determine the law in context). Rejection of legal formalism (rejecting Hart).

pragmatic thinking

practically useful forms of law, which they understood to mean a focus who actually decide the law. aim was to understand law in a new way, but also to see how law might pursue progressive reforms. draws on - sociology, psych, and anth

Roscoe Pound SJ

he likes and shares the origin story from legal realists and rejected legal formalism, use social factors to understand law. Gets away from holmes idea of legal realism bc sociology is a champion of legal process. identified three ways that law has been previous defined - as a legal order, as a body of authoritative discussions that enable us to predict the law, as a system of judicial or administrative processes. HE agrees that law is not just those things, it is all of them which creates law as social control. For pound, the most important question is what is the social purpose of the law and is it achieving it. He would come to the same answer as holmes in buck v bell as the law has a purpose in increasing the quality of social participants, which is able to ensure the betterment and advancement of society. even tho the law is showing social control in this case, its required to for the betterment of society. We can understand law as a form of social engineering.

Pound on law

the same way we understand society as an organism, so is law. Pound would have had different reasons about the buck v bell case but same outcome. offered a version of evolutionary theory that law advances thru stages, - primitive forms solely on public space, mature processes concerned with individual rights, and dealing with social interests, and one higher stage of a new world which maintain social equilibrium while urging change in the name of civilization.

sociological jurisprudence is sometimes known as

analytical positivism. hart plus analytical reasoning of social factors

Weber

comes from as sociological economic tradition.

consensus and conflict theorists agree on three main things

before the split, 1. society shapes individuals, society comes first 2. justice is a social construct that is understood thru broader society, not individuals 3. law is a product and tool of social forces

law, ideology, & revolutionary social change

Durkhiem rejected marx' insistence on economic relations as the basis of power in society. Durhiem preferred an evolutionary, progressive, reformist approach other marx. Marx thought - considered exploited,

marx Alienation & real history

process by which the pro-literalite, worker sof society, are expected to do the bidding of the capitalists. marx says capitalism its self creates a dissonance between the labour that lose control over things they create, and thru necessity rather than reciprocity. A future socialist or communist society should seek to overcome alienation to ensure everybody shares equally from the things they produce, and return people to their true social nature. materialist approach to history - focus on the matter, the real conditions, that shape our lives, its not ideas, but tangible things in the world. 'ideas do not create history, it is the implementation of those ideas is what matters'

Marx alienation case - Martin v law and society of BC

Martin applied for admission to be on the bar, but is denied as he is a self proclaimed communist. even tho he does not engage with acts of the party. rejection of one cannot be a marx's at the same time be a good Canadian citizen. The judges uses their own interpretation of Marx to come to this conclusion.

Three themes of Marx's work

1. ideas do not create history and the value of the mode of production as it reinforces class consciousness (society is always first, that shape us) 2. dialectical logic - rejects evolutionary approach to understanding history, (A causes B, which cases C), need to use a Hegelian dialectic to create synthesis 3. Materialist conception of history (historical materialism) - combines both dimensions above, rejects durkheim on the way labour is divided, Marx says its about when someone else owns the labour.

materialist conception of history

the whole of existing society ids the history of class struggle that are shaped by their relationship to capital. The idea of private property emerges, the bourgeoisie became the exclusive owners of the means of production, and exploit the working class that sell their labour, thus becoming entirely dependant on owner capitalists.

to understand the modes of production we need to analyize the

1. social forces (how society governs its relationships with each other, how do the labourers relate to each other / owners). 2. productive forces (the tools of the trade, type of labour, what tech is being operationalized, what knowledge). the relationship between these two things creates the mode of production which creates the economic base of society. the economic base is the true foundation of society and without it you cannot understand the basis of society and cannot comprehend anything that comes after. once you understand, then you can understand the superstructure

base superstructure model

superstructure - legal and political systems that operate within society and only do so with recognition to the economic base, if the base changes, the systems change. Explains why you see different legal systems in different legal economies. The complexity of the base matches the complexity of the superstructure.

commodities have two forms of value

1. use value - how useful they are to us as human beings. 2. exchange value - a numerical value for transactions ex - 5 dollars. Their value arises not from supply and demand, but from labour power invested in commodities. Capitalists Pay workers less than the amount they generate by producing commodities (surplus value). the rate of exploitation of workers in such context is directly proportionate to the rate of surplus value that capitalists skins off as profit

class struggle as it shapes the superstructure

this results in pauperization - the poorer gets poorer and the capitalists squeeze as much as they can. this generates fundamental contradictions and crises for capitalism

socialism

is the result of end stage capitalism. private property would end and production would be socialized. there has never been a pure socialism country ever. the process is very long. nordic countries are close to the middle between capitalism and socialism. its a return to indigenous societies , not creating surplus, sharing between people. There is not central head, no leader, the community governs together

Marx on law in Capitalist society

marx is work is used to understand criminology using his theories. this begins an argument called social realism - you can develop a gap between the economic base and super structure and it depends in state involvement (how much the state wants to interfere between base and superstructure) but allows the law to be used for positive social change or oppression. This also means that law can be used in other ways that the creators intended it to

ideology

concept that argues that law & state reflect the dominant ruling ideas. material conditions of production produce ideas that tend to perpetuate rather than resist existing modes of productions. ideology is superstructural to material bases. law can be an important ideological instrument used to create capitalist modes of production. law and state appear independent, but both are products of capitalists attempts to structure peoples consciousness in ways that legitimize the capitalist mode of production.

laws function in a capitalistic society

1. it obscures the states power by extending rights equally & universally to all but it does so within the unequal social context. ex- stealing bread is in affect for all people but only effects the poor 2. marx and engles recognize that the capitalists are not homogeneous & thus content that law reflects their 'average interests', 3. duplicitous face of law - its repressive coercive (material) functions are obscured by ideological (symbolic) functions that portray it as equal

max Weber

agrees that society comes first, and that law is a social action that cannot be separated from its history or social evolution. We are captives to legal culture / tradition and cannot be separated from whatever law comes later. He moves away from modes of production, all of these things are relevant and impact law but are not determinate. Believes in rationalization which shapes how we understand our worlds. the process of becoming a modern society is by replacing custom with rules and the way we know that we have modernized (thru rationalization process) is thru beurcracy (ruler makers) who are chosen on basis of merit. once we have these rules, we can understand why that has led us to being a society that has led us to a society to be ruled - the reasons why we abide by rules is called elective affinity

elective affinity

is a close association, not created. the rise of capitalism and rational forms of thought. rationalism emerges from misticism. ex - religious beliefs fosters ways of thinking that complemented a capitalistic ideology. An attempt to show how ideas of specific religion were central, rather than peripheral development to capitalism.

Webers sociology

defines its object as both behavioural and subjectivity meaningful elements of human activites. social action - target of soc, refers to those behaviours that take others behaviour into account. it is the way that we become aware that rules matter which leads to laws. looks way more at meaning than Durkheims. sociology allows people to develop empathy

detached empathy

explained by Weber, which say that sociologists need this to neutralize their empathy when attempting to study society empirically. this is how we approach law, to separate ourselves from to examine neutrally

social action has four ideal types according to Weber

traditional social action (proceeds from settled customs), affective social action (determined by emotional states or impulses) , value rational action (an actor believes in the value of an ethical, aesthetic, or religious value and then rationally tries to realize it), and instrumentally rational action (organizes behaviour by treating objects and other human beings as mean to achieveing ends). the last two have been more currently turned to be rationalized in capitalistic economies

power, explained by Weber

the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance, regardless of the basis on which this probability rests. even people without authority, you are still in power of yourself and what you do. but what you can do is constrained by legalism/rules.

4 types of legitimate authority by Weber

charismatic, traditional, rational legal, and bureaucratic. The society is moving towards rational legal theory. bureaucratic authority has become a part of society

charismatic legitimate authority

when authority claims legitimacy on the basis of 'the sancity, heroism, and otherwise impressive character of an individual'

traditional

stakes a claim on the basis of existing traditions that specific who is an appropriate authority.

rational legal

a common belief in the legality of rules and the right of those empowered to exercise authority (ie legal authority).

Bureaucratic

a rationalized form of administration with hierarchal offices, official duties governed by rules and so on.

R.v Collins

grabbed by drug squad in belief that she is illegal distribution. and charged with drug trafficking and possession. the evidence is legitimate and there is a valid law preventing that distribution so based on Hart and legal formalisms, it would assume she is guilty. Weber says no as the way that you enforce the law must be legitimate. you will loose concept of validity of the justice if it is unfair, that there is no treatment that is illegitimate. The judge rejects the case on the basis that you cant chokehold someone to attain evidence. Collins is acquitted and the crown appeals by saying that yes the heroin can be used as evidence. The court of appeal agrees. the supreme court does not agree with the method to get the evidence. administration of justice into disrepute - you cannot have police using authority that has not been legally granted of them bc people will not believe in the validity of the justice system. would a reasonable person think that the administration of justice would be in a disrepute, by doing this we are using social values (using the community standards of tolerance test). The court requires by creating a new legal precedent that judges engage in this test. the judge must render decision that is acceptable to the community.,

Webers opinion on the law

how did they understand the purpose of the law/how committed are they to the laws function. how did the validity of the law change in regards to its procedure. Weber views law is obligatory, law is a formal type of social action that involves an obligation/an order to be obeyed. the state compels you to obey . he says law is a form of legal rational authority. He has a broader approach of looking at the process of the law and not only the decisions of judges. social action is the basis of any legal action

basic categories of legal thought - logical formalisms

rational way of understand and acting in law. two bases of distinction - formal vs subtanstive; and rational and irrational

formal systems

tend to be self sufficient & use internally specified rules and procedures to make decisions.

substantive systems

usually refer to external criteria, these can be emotional or reactive - that either make or adjudicate laws

rational

rule governed, systematic, 'use logical interpretations of meaning' and are intellectually framed.

irrational

exact opposite of rational, not rule governed, not systematic. does not use logical interpretations of meaning

substantively irrational

law developed thru charismatic individualism- totalitarianism. no rules with minimal justification required. not centralized, seems random. irrational - dont follow rules, no effect to link decisions to general concepts. subtanstive - dont distinguish systematic between legal and extra legal ways of grounding decisions

formally irrational

prophetic revelations & oracular events. formal - adherence to complex rules, even minor deviations in protocol annul the process. irrational - rely on magic/prophecies.

substantively rational

following clearly defined & specified principles within ethical frameworks, religions or even form 'reason of state' discourse. may be irrationally formed in context but these systems are not juristically formal because they appeal to external criteria.

formally rational

systematic, rule governed, self sufficient, closed fields that differentiate themselves from ethics, religion and politics. there are two kinds - 1. empirical type (facts considered significant to establishing legal relationships are found outside the law; legal relationships are determined by extrinsic, empirically verifiable symbols This is precedent law/procedural law). 2. logically-rational type (begin premises that are not religions, political, ethical, or ideological, that require formalized empirical declarations; commonly associated with civil codes - rather than common law - and statue based forms of law; proceed from abstract, generally formulated concepts )

R.v Tessling (2004)

came to supreme court as result of conviction that the defendant was growing weed that was not regulated for distribution. initially, there weren't enough grounds to arrest the defendant but there was no legal mechanism to confirm suspicion. Police use spotter plane that has a camera (FLiR) with heat imaging device. This combined with the informant information leads the police to an arrest. at trial, defendants asks for evidence from the camera to be dropped as that violates his right to privacy and there is no law that says police can do this. The supreme court has to decide that 1. the search was invalid and 2. should the evidence be discarded, the court says no that the search was a invalid, but you have no reasonable expectation of privacy from the heat signatures that emanated from the home. Just bc the technology was never used before, doesn't mean its use now is illegitimate. SO there was no issue w the police doing this to get an inference to get the search warrant (this an empirically type of formal rationality, there are principles that can be interpreted, and that this is a verifiable method to maintaining law)

rationalization of law

weber - rationalization of the law is in western culture, where modern states with professional administration and specialists bureaucrats operate through the law of 'state'. Thus, capitalism hasn't been the sole decisive factor in promotion of rationalization of the law - instead - many other factors have contributed to the rise of it as well (alliance of monarchial and bourgeois interests). you can have two capitalistic economies with different legal systems