Law and Society Notes

Focuses on what holds societies together: law promotes and maintains social cohesion.
As society advances, law shifts from punishment to compensation.
Punishment expresses collective moral attitudes preserving social solidarity.
Mechanical Solidarity:
- Simple, homogeneous societies with uniform values.
- Little division of labor; collectivism prevails.
Organic Solidarity:
- Advanced societies with division of labor and interdependence.
- Individualism replaces collectivism.
Crime is a normal aspect of social life, connected to social values in the 'collective conscience'.
Punishment reinforces the collective conscience and is more intense in less developed societies.

Law has a central role in sociological theory.
Weber's Classification:
- Formal Systems: Rules and procedures for decision-making are accessible within the system.
- Substantive Systems.
- Rational Systems: Materials are applied logically and consistently.
- Irrational Systems.
Law is related to, but not determined by, economic factors.
Formally rational law facilitates rational economic conduct and capitalism.
Legitimate Domination:
- Traditional: Legitimacy based on age-old rules.
- Charismatic: Based on devotion to an individual’s exceptional character.
- Legal-Rational: Based on belief in legality of enacted rules.
Legal-rational authority is impartial and relies on formalistic impersonality, where officials act without personal considerations.

Law is part of the superstructure determined by material conditions.
Crude Materialism: Law simply reflects the economic base.
Class Instrumentalism: Law is a direct expression of the dominant class's will.
Dialectical Materialism: Social evolution is explained by historical forces; conflict between classes leads to revolution.
Law plays an ideological role, maintaining social order and representing the interests of the dominant class.
The state is ‘relatively autonomous’ but ultimately manages affairs for the bourgeoisie.
In a classless society, law becomes unnecessary and will ‘wither away’.
Marxists reject legal fetishism and the concept of justice and the rule of law.
Society is divided between those with property and power and those without it.

Capitalist state offers opportunities for greater ‘communicative action’.
Distinguishes between ‘law as medium’ (formal rules) and ‘law as institution’ (shared values).
Legitimacy of law depends on the effectiveness of discourse by which it is made.
Advocates for freedom of speech and democratic rights.

Focuses on the nature and function of power, distinct from force or legal regulation.
Discipline creates an ‘individuality’ with cellular, organic, genetic, and combinatory characteristics.
Regulatory government controls threats to social order, and law has become ‘sociologized’.
Disciplinary power pervades social life, affecting individuals and enabling the advance of capitalism.

Contests the universal rational foundation of law and rejects law as a distinctive discipline.
Depicts law as uncertain, ambiguous, and unstable, reproducing political and economic power.
Law is neither neutral nor objective; equality under the rule of law is a myth.

Leftist critique of orthodox legal doctrines in the United States in the 1970s.
Tackles injustices in legal doctrine using an interdisciplinary approach.
Law is ‘problematic’ and reproduces the oppressive nature of society.
Regards law as politics and rejects the neutrality of law and the ideology of liberalism.
Detects a ‘hegemonic consciousness’ in the law, accepting the division between legal reasoning and politics.
Legal thought is a form of ‘denial’, coping with contradictions between promises and reality.

Skepticism towards grand ‘metanarratives’ and universal values.
Rejects the idea of ‘progress’ towards ‘civilization’.
Dismissal of Kantian concern with individual rights, equality, and justice.
Disillusionment with formalism, essentialism, statism, utopianism, and democracy.
Emphasis on the 'subject' generates some fascinating accounts of the individual as moral agent, as rights-bearer, or simply as player in the legal system.
Focuses on personal experiences and the importance of language and interpretation.
'Empowerment' of women, minorities, the dispossessed, and the poor is advocated.

Remedies the overlooked position of women and impacts law and academia.
Analyzes inequalities in criminal law, family law, contract, tort, property, and public law.
The personal is political: denounces subjugation of women at home or work.
Liberal Feminism:
- Prizes individual rights and the need for personal freedom.
- Stresses equality, rationality, and autonomy.
- Seeks to address institutional framework of discrimination.
Radical Feminism:
- Law is a masculine edifice that cannot be altered merely by including women or their values.
- Advocates for changing the patriarchal system that subjugates women.
Postmodern Feminism:
- Maleness of law – the ‘phallocentrism’ of society – is a central theme.
Difference Feminism:
- Focuses upon the positive characteristic of women’s ‘special bond’ to others, while radical feminism concentrates on the negative dimension.

Exposes the law’s pervasive racism and advocates for marginalized racial minorities.
The law’s formal constructs favor a privileged white, male majority.
Rejects full-blown postmodernist accounts and recognizes the importance of rights talk.
Draws on ‘auto/biography’ to appraise social and legal relations.
Pursues the postcolonial thesis that dismantling colonial governments has failed to end racial divisions.