Law and Society Notes

Law and Society

Individualism vs. Collectivism

Natural Law and Social Contract Theory

Natural law and positivism were both influenced by an individualist approach to human society.
Social contract theory, a key part of natural law, posits that society is formed by agreement among individuals.
The establishment of human society is attributed to an original contract among individuals in a state of nature.
The social contract's binding character is derived from natural law, forming the basis of both positive law and society.
Thinkers disagreed on the terms of the initial contract:
- Locke advocated for the retention of fundamental natural rights.
- Hobbes argued for absolute sovereignty transferred to the ruler.
The core idea was that society is merely a collection of individuals, and the social bond is a binding agreement among rational individuals seeking personal interests.
The social contract was not always considered a historical reality but rather a rationalist, individualist, and formal logical presupposition of society, law, and government.

Positivism and Utilitarianism

Early positivists rejected natural law and the social contract as fictions but shared similar assumptions with their opponents.
Positivism's utilitarian basis relied on rational choice of ends for human happiness and a psychological framework driven by pain and pleasure.
Austin's positivism emphasized sanctions as threats of pain to individuals, inducing obedience as the basis of law.
Kelsen distanced legal questions from social problems and relations, viewing legal science as a formal pattern of rules separate from human problems.
Kelsen asserted that facts are separate from law and are the concern of sociologists, not jurists.

Economic Individualism and Laissez-faire

Individualist thought in the 18th and 19th centuries took on an economic dimension.
The industrial revolution and capitalist enterprise led to laissez-faire, advocating minimal legal interference with individual freedom, especially economic action.
The doctrine of freedom of contract exemplified this, with the idea that society progressed from status to contract (Maine).
The law aimed to maintain this freedom, striking down attempts to limit individual economic obligations.
Limiting working hours or conditions in mines or factories was seen as wrong because workers could accept or reject these conditions.

The Rise of Social Welfare and Collectivism

Laissez-faire faced increasing opposition from a philosophy emphasizing social welfare and legislative intervention.
Utilitarians, despite their individualist origins, emphasized increasing overall human happiness, justifying social and welfare legislation.
Leaving the market to operate freely resulted in human misery, poverty, and distress, undermining laissez-faire.
Interfering with the natural law of supply and demand was argued to be harmful in the long run, but Keynes countered that 'in the long run we are all dead'.

Society as an Emergent Entity

Dissatisfaction with Individualism

Rousseau expressed the unity of society through the concept of the 'general will', an entity distinct from individual wills.
Burke emphasized the traditional and historical roots of the social organism, rejecting the view of the national state as a mere commercial partnership.
Hegel provided the philosophical basis for society as a metaphysical entity, distinct from and superior to its individual members.
Hegel's theory, linked to historicism, saw human history as following a preordained pattern, with 'reason' actualizing itself in the national state.
For Hegel, the national state was a higher reality than its citizens, who were subordinated to the state's aims.

Hegelianism and the State

Hegel's theory has aspects of Aristotelianism, and he considered himself an advocate of freedom, aiming for political and cultural freedom through national states.
Hegel deemed the national state the highest manifestation of human culture and freedom, opposing an ultimate international society governed by law.
He saw conflict between national states as essential for human progress and freedom.
To Hegel, freedom was essentially obedience to the state, denying any genuine conflict between state and individual.
Hegel rejected natural law, merging morals into state law and considering state law the standard of morality, negating individual morality.

Totalitarian Ideologies

Hegel's doctrine provided a foundation for totalitarian ideologies such as Nazism and Fascism.
These ideologies viewed the nation-state as the highest reality, subordinating the individual, conscience, and morality to it.
They differed from Hegelianism by incorporating irrationalism and anti-reason, such as Nietzsche's superman and belief in blood and race.
Law became the intuitive expression of the dictates of the race or nation, perceived by an inspired leader.
Law ceased to be a system of regularly applied norms, becoming a set of guides to the leader's intuitions.
Hegel and his irrational offshoots, not positivism, provided the philosophical setting for totalitarianism.

Economic Forces of Society

Hegel's Dialectic Method

Hegel introduced the 'dialectic' method, asserting that contradictions could form a thesis and antithesis, leading to a new synthesis.
He applied this to human history, where conflicting 'ideas' are resolved by a new synthesis, advancing progress toward the realization of reason.
Marx turned Hegel 'right way up', asserting that material forces, especially economic ones, drive history and create ideology.
Marx's method, 'dialectical materialism', showed how contradictions in capitalism would lead to a socialist society.

Marxian Thought

There were two main strands of Marxian thought:
- Prophetic/Historicist: Foretelling doom and destruction followed by a brighter era of peace and justice.
- Scientific: Applying scientific principles to study human society.
After the revolution, class conflict would end, private property would be replaced by communism, and law and the state would 'wither away'.
This idyllic kingdom was seen as an imminent outcome of history.

Critique of Marxism

Marx aimed to apply scientific principles to the study of human society, studying the economic and class system and linking it to ideology.
He launched a major assault on social studies, emphasizing the impact of institutional and economic foundations on prevailing ideas.
Critics argue Marx over-emphasized the dependence of ideology on economic arrangements.
Modern views suggest mutual influence between economic arrangements and ideology.
For instance, the rise of capitalism was inter-connected with Protestant ideology, but the influence was not unidirectional.

Marx's Impact on Law

Marx viewed law as distilled from the economic order, an institutionalized form of ideology used by the dominant class to coerce the masses.
This offered a deeper insight into law than the historical school, seeking the real springs of human action and their translation into institutions based on economic structures.
Marxism contributed to the foundation of legal and general sociology.

The Science of Sociology Applied to Law

Early Influences

The application of scientific principles to law and criminology was influenced by Benthamite utilitarians and Comte.
Comte broadened social studies, coining the term 'sociology', promoting the scientific study of man in society.
The utilitarian focus on legislation gave law prominence in these new studies.
Jurists and sociologists, especially in Germany, began using sociology to understand law beyond the formalistic approaches of natural law and positivism.

R. Von Jhering

Jhering saw law as a method of ordering society, influencing Roscoe Pound significantly.
Society is composed of competing interests, often economic, that can lead to chaos if unfettered.
Law is an impartial mediator of competing needs and claims, relating the legal process to society's developing needs.
Lawyers should understand the sociological implications of legal rules and use them to harmonize conflicts.

Weber and Ehrlich

Weber explored the sociological aspects of law, showing how legal systems reflect underlying philosophies.
He emphasized the institutionalization of modern law through the bureaucratization of the modern state.
Weber noted the acceptance of law as a rational science based on postulates like the law being a 'gapless' system.
There is irony in Weber's rationalizing approach being followed by the irrationality of charismatic leadership in Germany and in modern sociological jurisprudence resisting the logical approach of positivism.
Ehrlich aimed to penetrate behind formal rules to the 'living law' or actual social norms governing society.
Every society has an inner order that dominates life, even without being formalized in positive law.
This inner order is equivalent to the anthropological concept of a culture's pattern.

Ehrlich's Living Law

Lawyers need to know both positive rules and the normative inner order of the living law.
Lack of correlation between positive and living law can lead to a disregard for the latter, giving a false picture of social ordering.
Commercial transactions may be governed by social and economic norms distinct from or conflicting with positive legal norms.
The living law is dynamic, requiring positive law to adapt through empirical study.
Ethical values are reflected in the living law, necessitating that those developing the legal system stay in touch with society's inner order.
This is required of legislators, judges, legal administrators, and the legal profession involved in negotiations and settlements.

Roscoe Pound and American Sociology

Social Engineering

Building on the work of German sociological jurists, Roscoe Pound introduced a distinctively American perspective.
Pound described the legal process as a form of 'social engineering' in response to the rise of technology.
The optimistic approach of American society suggested societal problems stemmed from ignorance, solvable through factual investigations.

Cultural Patterns and Legal Postulates

Pound agreed that every coherent society has a pattern of culture that determines its ideologies.
These ideologies shape the philosophy of man and the world, influencing specific fields of activity.
Law develops its own fundamental postulates within this social complex, setting the framework for its development.
These postulates evolve as society changes, with examples including the shift from freedom of contract to rights like the right to work and protection against job-related wear and tear.
A constant evolution shapes positive legal norms and their future orientation.

Conflicts of Interests

Following Jhering, Pound viewed the legal process as a form of social control for scrutinizing, comparing, and resolving conflicting interests.
Pound focused on the judiciary's role, especially in American law, due to the common-law emphasis on judge-made law and constitutional functions of courts.
Modern American jurisprudence addresses how courts function and their relationship to Ehrlich's 'living law'.

Problems Addressed by Pound

Two key problems:
1. How to classify and correlate competing interests seeking legal recognition.
2. How courts resolve conflicts and whether these procedures can be improved.
Pound noted that interests are dynamic, with new situations and developments creating new needs and claims.
- Example: the interest in personal privacy.
The core need is to have a system of values to compare and evaluate competing interests to reach decisions.
- Examples: publishing information vs. reputation, property rights vs. neighborly relations, public security vs. political expression.

The Process of Evaluation

Pound identified three primary ways courts effect this process, often unconsciously:
1. Following Past Patterns: Can tie the court to outdated ideologies.
2. Grasping Fundamental Legal Postulates: Evaluating disputes in light of contemporary jurists and sociologists.
3. Trusting Instinct: Judging on a rough basis, relying on understanding society's needs. Often the most common approach.
Courts need to closely connect with the 'living law' of their community, as legal decisions are inevitably based on ideology.
It's better to recognize and develop the law according to society's operative values instead of treating decisions as technical exercises.
Technical rules conceal underlying philosophies, like 'caveat emptor' representing economic laissez-faire.
Northrop: '[T]he only difference between a person