law and society all notes

week 1

Page 1: Course Introduction

• SciencesPo

• Course Title: Law and Society

• Instructor: Bruno Sousa Rodrigues

• Semester: Spring 2024/2025

• Date: 30/01/2025

Page 2: Session 1 Overview

• Key discussion points:

  • Overview of the course and grading system

  • Definition of law

  • Relationship between law and society

  • Role of social theory in the study of law

Page 3: Course Overview

• Course Sessions:

  • Session 1: Is law an autonomous system?

  • Session 2: Law beyond legal rules

  • Session 3: Suits and robes – the crafts of law in the 21st century

  • Session 4: Law and the State

  • Session 5: Constitutionalism and the rule of law

  • Session 6: Crime and punishment (Criminal law)

  • Session 7: Individuals and market exchanges (Private law)

  • Session 8: Citizenship and foreignness

  • Session 9: Legal pluralism without borders

  • Session 11: Human rights: potential and limitations

  • Session 12: Mobilization of legal practice for social resistance and change

Page 4: Grading System

• Assessment Overview:

  • Group presentation: 30%

  • Mid-term exam: 20%

  • Final essay: 40%

  • Class participation: 10%

• Group Presentation:

  • Collective grade, maximum 15 minutes

  • Criteria: time management, organization, case familiarity, critical reasoning

  • Submission: outline, bibliography, and debate question due one week before presentation.

• Mid-term Exam:

  • Date: 13 March 2025

  • Format: 10 multiple choice questions, duration 30 minutes

• Final Essay:

  • Date assigned: Session 9 (3 April 2025)

  • Length: 750 words; submission due 24 April 2025

Page 5: Class Delegate Election

• Title: Election of Class Delegate

• Related to the Law and Society Course

Page 6: Defining Law

• Question posed: How do you define law?

Page 7: What is Law? (I)

• Definition: Law as a social order

  • Regulates mutual behavior among humans

  • Set of rules prescribing behavior or norms

  • Misconception: Law vs. order; they are intrinsically linked.

  • Quotation from Hans Kelsen highlights the tautology in law discussing order.

Page 8: What is Law? (II)

• Understanding the law:

  • Differentiation between what is decided by courts and theoretical concepts of law.

  • Perspective of the 'bad man': Law as practical prophecies of court actions rather than ethical axioms.

  • Quotation from Oliver Wendell Holmes emphasizes practical law over abstract theories.

Page 9: What is Law? (III)

• Judicial Constraints and Practices:

  • Judges constrained by rules but must administer justice in practice.

  • Discretion is limited but human elements in law cannot be ignored.

  • Quotation from Roscoe Pound reflects on the reality versus law theory.

Page 10: Juristic Views on Law and Society

• Key Thinkers:

  • Kelsen, Holmes, Pound recognize law as a social phenomenon.

  • Kelsen focuses on structural organization of norms.

  • Holmes and Pound emphasize operational aspects in law administration.

  • Shift from natural law to law as a social construct.

  • Questions the necessity of law in isolation (e.g., deserted island).

Page 11: Relation Between Law and Society

• Investigating the connection between law and social structures.

Page 12: Law and Social Theory

• Definition of Social Theory:

  • Methodical, historically informed, and empirical study of social life.

  • Explores collective existence and individual roles within society.

  • Encompasses diverse phenomena: institutions, networks, and social dynamics (solidarity, identity, power).

Page 13: Law as a Social Phenomenon

• Approaches to studying law:

  • Communicative aspects: focus on legal texts and discourse.

  • Behavior of legal agents (judges, legislators) and their societal roles.

  • Law as a tool for ideological domination or political struggle.

Page 14: Emergence of Classical Social Theory

• Overview of classical social theory's emergence in relation to law.

Page 15: Karl Marx’s Perspective on Law

• Quote from Marx:

  • Law is an expression of class interests and economic conditions.

Page 16: Durkheim's Perspective on Law

• Quote from Durkheim:

  • Law and morality create social bonds in response to industrial changes.

Page 17: Weber's Perspective on Law

• Inquiries into the origins of law within rational capitalist interests and cultural rationalism.

Page 18: Analysis of Llewellyn's Insights

• Focus on the text regarding the normative aspects of law.

Page 19: Llewellyn's Institutional Approach

• Institutional viewpoint on law emphasizes organized actions and activities.

Page 20: Llewellyn on Rule of Law

• Law's role in sustaining social groups; law is an interaction between people and rules.

Page 21: Sub-Jobs of Law (Llewellyn)

• Various functions law serves:

  • Mediation of conflicts

  • Regulation of behavior

  • Political power allocation

  • Promotion of social integration and improvement of legal practice.

Page 22: Craft Concept in Legal Practice

• Law as a craft involving distinct skills and practices among legal professionals.

Page 23: Influence of Legal Roles on Practice

• Discusses how legal professionals’ roles affect their legal reasoning and practice.

Page 24: Luhmann and Bourdieu Perspectives on Law

• Niklas Luhmann: Law as an autopoietic communication system stabilizing expectations.

• Pierre Bourdieu: Law as a semi-autonomous field of practice.

Page 25: Importance of Law in Everyday Life

• Exploration of law's role in organizing everyday life.

Page 26: Conclusion

• End of session notes. Looking forward to next week!

SESSION 2: LAW BEYOND LEGAL RULES

• Objectives:

  • Discuss implications of viewing law as a professional practice based on Pierre Bourdieu's insights.

  • Analyze law through the lens of physical objects in practice, drawing from Bruno Latour's contributions.

  • Engage in a debate regarding forces affecting legal practice's production and reproduction.

PIERRE BOURDIEU: THE FORCE OF LAW

Juridical Field and Social Systems

• Key Concept: The distinction between juridical field as social space vs. system (Luhmann).

• Bourdieu critiques that legal structures being self-referential confuses symbolic order with the social system.

• The juridical field holds objective relations among competing actors for control over legal interpretation.

Formalism vs. Instrumentalism

• Kelsen's Pure Theory of Law:

  • Represents formalist thinkers' battle against social constraints in law.

  • This ideological stance ignores the independency of the juridical field from external influences.

• Instrumentalist View:

  • Law as a reflection of social power dynamics.

  • Bourdieu sees both perspectives as failing to account for the complexity of the juridical field.

Competition and Monopoly

• Definition of Juridical Field:

  • A space of competition among actors for monopoly over legal interpretation.

  • The field fosters separation between legal professionals and non-experts, rationalizing the legal system further.

• Result: Creates a disconnect between legal judgment and everyday perceptions of fairness.

Mediation Role of Legal Professionals

• Legal professionals play crucial roles in transforming societal conflicts into regulated legal debates.

• They interpret legal texts and redefine issues into legal problems impacting client relationships.

• The juridical field is marked by a professional monopoly on legal services production and distribution.

Structural Hostility in Legal Interpretation

• Opposition between theorists and practitioners generates a symbolic struggle.

• Boundaries of participation in the juridical field exclude those lacking necessary technical mastery.

• This dynamic reinforces professional authority, overshadowing common sense views of justice.

Power of Formalization and Naming

• Vis Formae: Legal formalization shapes practices leading to social modifications.

• Legal judgments serve as performative acts that establish social realities and norms.

• Decisions by authorities are seen as universally recognized truths carrying significant symbolic power.

Legal Habit and Field Dynamics

• Legal habitus structures perceptions and judgments which guide resolutions of conflicts.

• Adaptation of legal supply to demand reflects social hierarchies influencing power relations within the field.

• Lower-status legal professionals often reinforce existing power dynamics rather than challenging them.

BRUNO LATOUR: THE MAKING OF LAW

Modes of Existence in Law

• Latour’s exploration highlights the distinct nature of law compared to politics and economics.

• He critiques instrumental views, emphasizing the relational character of law and its role in connecting various entities.

Case Study on Conseil d’État

• Latour's study of the Conseil d’État reveals insights into the functioning of uncodified law.

• Engagement with the institution demonstrates law’s complexity and its material elements, like files.

Legal Documentation Process

• The process begins with simple claims initiating a complex legal dialogue.

• File Lifecycle: A legal 'file' evolves as it garners documents and undergoes various stages of processing.

The Fragile Nature of Legal Documents

• The act of creating a legal file forms a bridge between raw grievances and official legal documentation.

• The reporter's role connects initial complaints to established legal texts, emphasizing the tenuous nature of this connection.

FORCES IMPACTING LEGAL PRACTICE

• Consider how societal, institutional, and professional forces shape the legal landscape and affect practice.

Conclusion

• This session reiterates the complexity of understanding law through both sociological and material lenses, highlighting the ongoing debates and challenges within legal practices.

week 3

Session Objectives

• Explore the protagonists of the legal profession in the 21st century.

• Discuss the organization of the Bar inspired by Tanina Rostain’s insights.

• Engage in a debate on whether the rule of law implies the rule of lawyers.

• Examine the historical foundations of legal professions based on Raoul Van Caenegem’s work.

• Analyze the impact of AI on the future of legal professions.

The Structure of the Legal Profession

Judges

• Different types of judges, examples include:

  • Judges at the International Court of Justice.

  • Judges at the Cour de Cassation.

  • Judges at the Japanese Supreme Court.

Lawyers

• Categories of lawyers:

  • Brazilian lawyers.

  • Italian lawyers.

  • Nigerian lawyers.

Prosecutors

• Examples of prosecutors:

  • Prosecutor of Paris.

  • Attorney-General of India.

  • Prosecutor of the International Criminal Court.

Professors

• Examples of law professors:

  • Law professors in France.

  • Law professors in Portugal.

  • Barack Obama when he was a law professor.

Impact of Professional Divisions

• Discussion point: How do the professional divisions within the legal field impact the practice of law?

Insights from Tanina Rostain

Professional Authority of Lawyers

• Overview of socio-legal scholarship exploring attorney authority through:

  • The organized bar.

  • Corporate and personal legal services.

• Professionalism as a collective mobility project aimed at economic rewards and prestige.

Bar Control Over Legal Profession

• Production of Producers: The bar controls legal training and sets formal education requirements enforced through the bar exam.

• Market Competition: Restrictions established by the bar to maintain monopoly, including control over competition and advertising:

  • Example: Division of legal professions into solicitors and barristers in the UK.

• Ethics and Guidelines: The bar enacts ethical codes and guidelines for legal services, discovery procedures, and conflicts of interest.

Evolution of Corporate Legal Services

• Transition from independent practice to bureaucratic specialized practice with corporate law firms.

• Claims of independence by corporate law firms justified through long-standing client relationships and impartial advice.

• Shift in ideology from independence to partisanship emphasizing the interests of clients.

Personal Legal Services

Market Dynamics

• Three dynamics observed:

  • Traditional Lawyers: Operate in small firms, focus on human aspects, and have lower status.

  • Entrepreneurial Lawyers: Operate in large firms, mass production approach, and emphasize efficiency.

  • Boutique Personal Lawyers: Specialized expertise, focus on high-end issues, and command higher fees.

Vulnerability in Legal Services

• Traditional and entrepreneurial lawyers face competition from:

  • Paraprofessionals offering legal services.

  • “Lawtech” start-ups using technology to automate routine legal work.

The Rule of Law vs. The Rule of Lawyers

• Discussion point: Does the 'rule of law' imply the 'rule of lawyers'?

Economic Impact of Legal Professionals

• Historical context of legal professionals and litigation's socio-economic impact in Rome during the twelfth and thirteenth centuries.

Historical Foundations of Legal Professions

• Growth in complexity of judicial procedures led to reliance on trained advocates and proctors by the late twelfth century.

Professionalism in Judging

Historical Context

• Shift from lay judges to appointed professionals in early medieval courts.

• Role of the Church in developing early professional standards in law.

Judicial Independence

• The gradual rise of professional judges led to increased autonomy and status, especially post seventeenth century.

Accountability](to the Public)

• Early courts exhibited participatory elements with public appraisals of judges' decisions. -Diminished public involvement over the centuries in judicial proceedings.

Contemporary Issues in the Judiciary

• Judges historically appraised and processed subjects without regard for rank, reflecting changes in social structures.

Codification and Judicial Biases

• Judge-made law reflects oligarchic interests, prioritizing stability over equality.

• Codification emerged as a challenge to traditional judicial power.

Influence of Law Professors

• Jurists historically served power structures, leveraging legal ideas to influence political movements.

Future of Legal Professions in the Age of AI

• Speculative discussion on how AI will reshape legal practice and the roles within the profession.

week 4

Session 4: Positive Law and State Institutions

• Key Topics:

  • Finalize discussions on historical origins of the legal profession.

  • Political centralization and its influence on law (Insights from Saskia Sassen).

  • The importance of State sovereignty in legal organization.

  • Limitations to State legality and the distinction between law and morality (Insights from H.L.A. Hart).

Historical Context of Legal Profession

• Historical Insights on Legal Business:

  • Criticism of the engagement of curia and lawyers in promoting litigation for profit.

  • Lawyers in the papal curia contributed significantly to Rome's economy during the 12th and 13th centuries.

  • Litigation increased demand for legal professionals, benefiting various sectors of the economy (shops, inns, etc.).

  • The rise of lawyers coincided with an influx of litigants, not as a cause of the litigation surge.

Growth and Formalization of Legal Procedures

• Legal Profession's Role in Canonical Litigation:

  • Advocates and legal professionals became crucial in the late 12th century due to complex court procedures.

  • By 1200, self-representation in litigation was discouraged; expert legal aid was deemed essential.

Professional Judges Versus Lay Judges

• Historical Judicial Structures:

  • Early courts lacked regularly appointed judges; Frankish judges chosen per case until Charlemagne instituted lifetime appointees.

  • Judges initially had non-professional backgrounds yet began developing a form of professionalism.

  • Understanding of judicial professionalism progressed within the Church from traditional courts to trained legal officials.

Evolution of Accountability in Courts

• Judicial Independence:

  • The rise of judicial professionalism correlated with judges gaining independence from political influences.

  • By the early 18th century, judges achieved irremovability barring extreme circumstances (i.e., parliamentary request).

  • French judicial positions often became private property through office purchase, complicating royal control.

Public Accountability and Justice Administration

• Judicial Processes in Early Societies:

  • Description of ancient Greek courts: judges proposed judgments with public approval, illustrating early community involvement in justice.

  • Over time, public participation in the judicial process diminished.

Sovereignty and Law

• State Sovereignty as Absolute Power:

  • Sovereignty defined as the absolute authority of a commonwealth; laws depend on the sovereign.

  • Contracts differ from laws; the sovereign cannot bind himself as laws are one-sided.

Territorial Sovereignty

• Jurisdictional Authority:

  • Definition of territorial sovereignty as exclusive rights over land, air, and sea.

International Law vs. National Law

• Monism and Dualism Explained:

  • Monism: law viewed as a unified whole derived from a common source.

  • Dualism: distinction made between international law (governing states) and municipal law (governing individuals).

Emergence of Human Rights

• Universal Declaration of Human Rights:

  • Recognizes the inherent dignity and equal rights of all individuals as foundational to justice and peace.

Legal Positivism Insights

• Distinction between Law and Morality:

  • Legal positivism allows for a value-neutral analysis of law, separating it from moral considerations.

  • Law is seen as set by a sovereign entity, applicable to subjects under its jurisdiction.

Conclusion

• Reflection on the Interrelation of Law and Morality:

  • Ongoing dialogues in legal theory regarding the connection and separation of law from moral imperatives.

Study Guide: Law and Society Course

Week 1: Course Introduction

• Course Details:

  • Title: Law and Society

  • Instructor: Bruno Sousa Rodrigues

  • Semester: Spring 2024/2025

• Session 1 Overview:

  • Overview of the course and grading system

  • Definition of law

  • Relationship between law and society

  • Role of social theory in the study of law

• Course Sessions:

  1. Is law an autonomous system?

  2. Law beyond legal rules

  3. Suits and robes – the crafts of law in the 21st century

  4. Law and the State

  5. Constitutionalism and the rule of law

  6. Crime and punishment (Criminal law)

  7. Individuals and market exchanges (Private law)

  8. Citizenship and foreignness

  9. Legal pluralism without borders

  10. Human rights: potential and limitations

  11. Mobilization of legal practice for social resistance and change

• Grading System:

  • Group presentation: 30%

  • Mid-term exam: 20%

  • Final essay: 40%

  • Class participation: 10%

Week 2: Law Beyond Legal Rules

• Objectives:

  • Discuss implications of viewing law as a professional practice.

  • Analyze law through Pierre Bourdieu’s insights.

  • Debate forces affecting legal practice.

• Key Concepts:

  • Juridical Field: Space of competition for legal interpretation.

  • Formalism vs. Instrumentalism: Different views on the role of law in society.

  • Mediation Role of Legal Professionals: Legal professionals transform conflicts into regulated debates.

  • Legal Habit: Structures perceptions and influences judgments in the legal field.

Week 3: Structure of the Legal Profession

• Protagonists of the Legal Profession:

  • Judges, Lawyers, Prosecutors, Professors

• Insights from Tanina Rostain:

  • Authority of lawyers and the organized bar's control over legal training and market competition.

• Legal Professionals Impact:

  • Traditional, Entrepreneurial, and Boutique Lawyers; vulnerabilities in legal services.

• Discussion on "Rule of Law" vs. "Rule of Lawyers."

Week 4: Positive Law and State Institutions

• Key Topics:

  • Historical context of the legal profession and the rise of judges.

  • Distinctions between sovereignty, law, and morality.

• Key Concepts:

  • Sovereignty: Absolute power of the state and its legal authority.

  • Monism vs. Dualism in law: Differences in the understanding of international vs. national law.

  • Human Rights: Foundation of justice and peace as recognized in global declarations.

• Legal Positivism Insights:

  • Distinction between law and morality; the role of the sovereign in creating law.

Conclusion

• Ongoing discussions on the interrelation of law and morality and the complexities of legal practice throughout history.

This guide provides a comprehensive overview of the key points discussed in each week of the course, helping in revising critical concepts related to Law and Society as structured by the instructor.