Académique Documents
Professionnel Documents
Culture Documents
Liberal legal philosophers hold that western legal systems are neutral, impartial
between the parties, i.e. indifferent to economic, political and social inequalities.
But sociologists have shown that economic and social inequalities produce legal
inequalities. This is because the dominant classes and social groups have
interests in perpetuating their dominance through wealth, status and power.
They have myriad resource advantage for influencing legislation. Many legal
systems purposely enact economic and social stratification systems into law. For
instance, historical restriction on voting based on property and gender, prior to
the onset of adult suffrage in Western Europe and US; also the racial and
property laws in South Africa. Even in India, the legislature governing the undertrials is an anti-poor legislation because it restricts the rights of the undertrials
only so long as they are not released on bail. This consequently favours the
wealthy who can afford to bail themselves out of crimes.
Even legal systems that are egalitarian on books, often operate in unequal ways
in practice. Galantars essay Why the Haves Come Out Ahead (1974) points to
some key reasons why inequality reduction through litigation is limited. Galantar
distinguishes between one shot players and repeat players. The former have only
occasional recourse to courts whereas the latter are engaged in similar litigation
overtime. Accused criminals and couples seeking divorce fall within the first
category whereas big corporate houses, companies, etc. are repeat players. Both
these categories have different objectives in going to the court. Whereas the
former are concerned with the outcome of their particular case, the latter pick
and choose cases strategically, allocating more resources where the balance tilts
in their favour.
Additional resources for repeat players include prior familiarity with the particular
legal actors and processes adjudging their cases. Thus before a given litigation
begins, the repeat player knows a great deal about the relevant legal
precedents, increasing their capacity to pursue cases for favourable verdicts.
This ensures inequality between the two categories of litigators.
Since lawyers are repeat players, access to them gives a party an advantage. Big
corporations have their own in-house lawyers trained and experienced in
litigation. One-shot players have limited access to specialised lawyers as such
lawyers pick the Haves, i.e. the wealthy, high-status clients. Lawyers working
on contingency basis may help improve this situation. This culture in America
involves lawyers receiving as payment, a portion of the monetary compensation
awarded to plaintiffs in civil cases on the condition that plaintiffs win the case.
So, if the lawyer only expects a strong case on part of the plaintiffs, they may
have access to lawyers easily.
Early studies of affirmative action programs suggested that inequality reduction
was greatest when companies monitored and rewarded managers for affirmative
action performance just as they did for performance on other business goals
such as profitability.
Jhering
Jhering placed great emphasis on the functioning of law as an instrument for
serving the needs of human society. Serving the needs involves solving the
inevitable conflict between societal and individual interests. For this purpose the
state employs the method of reward and also the method of coercion. The
success of the legal process is measured in terms of the balancing act between
these interests.
Max Weber
Weber was the first to develop a systematic sociology of law. His primary concern
was to understand the development and characteristics of western society, the
most distinctive feature of which is capitalism. The existence of a rational legal
order is critical for capitalism. Weber saw law as passing through stages ranging
from charismatic legal revelation through what he called law prophets to a
systematic elaboration of law and professionalised administration of justice by
persons who have received legal training.
Legal irrationality is where the decision-maker is guided by reaction to individual
cases. Such legal systems lack restraints of procedure and the sort of
consistency that we associate with a system of judicial precedent. The legal
systems attained formal legal rationality only when these rules were expressed
by use of abstract concepts. Such legal systems, Weber claims, were unique to
modern western civilisation. Formal rationality must be considered a leading
characteristic of modern legal systems.
Webers sees this rationalisation as accidental rationalisation of law and
attributes it to the bourgeoisie interests and the interests of the absolutist state.
He rejects any suggestion of a specific economic causation. Weber sees the
development of bureaucracy as central to the establishment of a rational legal
administration. English with vested interest in retaining the archaic formalistic
features were seen as a major impediment to rationalisation.
Another factor Weber considered was natural law. Its role was to legitimize legal
change necessary for rationalisation of law. He saw the absence of natural law as
the impediment to spreading of rationalisation in both Chinese and Judaic law.
Webers also establishes a relationship between law and capitalism. According to
him, economic situations only provide opportunity for the spread of legal
technique if it is invented. Law is seen as crucially related to economic forces.
Weber showed how modern capitalist enterprises rest primarily on calculable and
predictable rational behaviour of the legal and administrative system.
Weber gives certain reasons for the conjoint growth of formal legal rationality
and capitalism:
1. Stable rules providing legal rights and guarantees to parties to exchange,
operate to increase predictability and certainty in contracting.
Guaranteeing enforcement of contracts will ensure that promises are kept.
This encourages general business activity and market exchange. This
increase in market exchange would further boost contracts and business.
Although market exchange could be increased without the guaranteed
enforcement of contracts, emergence of a full blown capitalist economy
would be unlikely
2. Formal legal rationalization promoted rational capitalism by making
available new tools especially the legal ideas of agency, negotiability, and
legal person. Weber considered these ideas essential for the development
of economic action and institutions with a high degree of calculability,
predictability, and systematization.
The concept of legal person makes expectation, liability and responsibility
the core of contracts instead of magic, prophecy and privilege. This
facilitates exchange relations.
3. Idea of legal personhood makes business organisations bearers of
universal rights and duties entitled to formal equal treatment under law.
Weber considers the confluence of many factors, such as prior economic and
legal preconditions and diverse political and religious factors, leading to a full
blown capitalism.
England is seen as an exception to Webers theory. He saw the methods of proof,
the jury system, the system of law magistracy, adversarial system as irrational.
Weber pointed to a shift from empirical justice to a rational system based upon
rules and principles. He states that England has gained capitalist supremacy not
due to the judicial system but in spite of it. He turns the contradiction to his
theory to his advantage due to his multi-variant analysis.
Marx
Marx viewed law predominantly as a dependent variable rather than an
independent variable in social change. Marxs historical materialist philosophy of
history relegated law to superstructure- an expression of changing economic
modes of production. These modes changed due to class conflict, from slave
societies, to feudalism, to capitalism, to socialism and communism. Each mode
likewise entails its own characteristic class structure and conflicts between
owners and non-owners. Hence, according to Marx, law preliminary references
economic categories of property, class, labour as it codifies pre-existing
production relations in economy and society. In general tenets of historical
materialism, law is a state that represents the changing class relations. Marxs
analysis of the 19th century Factorys Act, presents law as being an object and
outcome of class struggle rather than simply reinforcing bourgeoisie dominance.
The restriction over the work days length resulted from persistent working class
mobilization.
For a proposed law of prohibiting gathering of wood from Rhenish forest, Marx
saw it unjustly vague that no distinction is drawn between gathering falling wood
and felling trees. Marx fought this legislation and hoped that his critique would
make a difference and expose these legal shenanigans.
Complex whole
Includes norms regulating human behaviour
That are social norms
The complex whole is orderly
Order is characteristically a coercive order
Institutionalized
Degree of effectiveness sufficient to maintain itself
Double Institutionalization
Law must be distinguished from norms and customs. A norm is a rule which
expresses ought aspects of relationships between human beings. Custom is a
body of such norms including regular deviations and compromises with norms
that is actually followed in practice. The difference between custom and law is
that where the former is inherent in the institutions it governs or those which
govern it; law is seen in a narrower and recognisable context i.e. in the context of
legal institutions only. Just as custom includes norms, but is both greater and
more precise than norms, law includes custom in the same way. Kantorowicz
calls law justiciable i.e. he means that the rule must be capable of
reinterpretation and must be reinterpreted so that the conflicts within the nonlegal institutions can be adjusted by an external authority.
Legal institutions are those by means of which the people of the society settle
disputes that arise between one another and counteract any gross and flagrant
abuses of rules. Legal institutions have two unique aspects. They have some
regularized way to interfere in the malfunctioning of a non-legal institution.
Secondly, they have two kinds of rules, one that govern the legal institution itself
and another that modify the rules of non-legal institutions.
Customs are norms about the ways in which people must behave if social
institutions are to perform their tasks. Those customs that are re institutionalized
to another level, they are restated for the more precise purposes of legal
institutions, are laws. This way the most characteristic attributes of legal
institutions are laws about the legal institutions themselves, although most are
about other institutions of society.
According to Malinowski, law is body of binding obligations regarded as right by
one party and acknowledged as the duty by the other, kept in force by the
specific mechanism of reciprocity and publicity inherent in the structure of
society. Malinowski erred when he said that law is kept in force with reciprocity.
Reciprocity is the basis of custom, not law. Law is rather the obligations that are
re institutionalized within the legal institution so that the society may function in
an orderly manner on the basis of the rules so maintained. Therefore law is
based on double institutionalization.
Whether in the realm of kinship, contract, citizenship, property rights, the
relationship between people can be reduced to a series of prescriptions with the
obligations and their correlative rights. Legal rights are only those rights that
attach to norms that have been doubly institutionalized. They have their material
origins in customs of non-legal institutions but must be clearly restated for
enabling the legal institutions to perform their tasks.
Law is never a mere reflection of custom, and is always out of phase with
society, specifically because of the duality of the statement and the restatement
of rights. The more highly developed the legal institution, the more out of phase
it is due to constant reorientation of the primary institutions. It is the mere
nature of law, its capacity to do something about the primary social institutions
that creates the lack of phase. Even if one could assume perfect legal
institutionalization, change within the primary institutions would soon jar the
system out of phase again. People must attempt to reduce the lack of phase.
Custom must grow to fit the law or it must actively reject it. Law must either to
grow to fit the custom or it must ignore and suppress it. For instance, how
marital rape was declared a crime by the House of Lords in 1991 but hasnt been
accepted as a custom in society.
Social catastrophe and social indignation are sources of law and much resultant
change in custom. These technical and moral changes, new situations appear
that must be legalized. This varies for developed and developing countries. In
the developed nations, where the institutionalizing of behaviour is already
concentrated in political groups etc. the non-legal social institutions take time to
catch up with law. Whereas in developing countries, there is little demand made
of legal institutions and therefore little contact exists between them and the
primary institutions.
II
Legal effectiveness is a major concern of SOL. It is a comparison between legal
reality and legal ideal and the gap between law-in-action and law-in-theory.
Sociologist seeks to lessen this gap. Impact studies use a statute whose
purpose is clearly discernible, as a measuring rod, and study its impact.
Implementation studies- The impact may be difficult to measure if the judicial
decision or statue used is ambiguous. Difficult to understand to what extent
certain ideal is followed. In such a case, or in the absence of either measuring
rods, the investigator assesses his empirical materials against standards of
justice such as rule of law, due process, etc. Comparative studies involves
the use and comparison of status quo with the ideals aforementioned.
Legal effectively study may be valuable to people who are in a position to reform
the legal order. This gives them leverage. The mere existence of this gap
although does not in itself overwhelm all resistance to change, or cause the
bridging of the gap.
In case of absence of ideals, the investigator may implant his own legal ideals
and at this point advocacy begins and social science ceases. The value of this
research becomes precarious the moment it involves a value judgement instead
of a scientific analysis.
III
Technocratic approach is propagated by Black. This approach resembles a
broader style of thought called scientism. This suggests that every problem can
be solved if only the appropriate expertise is applied to it, i.e. every problem can
be solved scientifically and empirically. Technocrats are concerned with efficiency
and effectiveness. They seek to attain some unstated goals and therefore certain
approaches are called liberal and bourgeoisie whereas others radical and critical.
Technocrats do not moralize.
Technocratic style dominates the discussion of social controversy, for e.g.
whether or not marijuana should be legalised, other studies on riots, violence
and pornography. In the name of science and progress these studies lead to the
discussion of issues that were earlier simply condemned. This style has helped
sociology gain a position of prominence in times of rapid social change and
conflict. A typical sociologist knows nothing of moral and social philosophy, but if
public policy is nothing but a matter of scientific technique, why should he? In
the technocratic era, moral philosophy is an oddity.
IV
Law consists of observable acts and not rules and norms employed in both the
literature of jurisprudence and in everyday legal language. Law like anything else
is amenable to scientific method as any other aspect of reality. A social science
of law true to positivism cannot escape limitations.
Within the positivist philosophy, three basic principles of scientific knowledge can
be noted.
1. Science can know only phenomena and never essences- essence of
knowledge is a matter of jurisprudence and not science
2. Every scientific idea requires a concrete empirical referent of some kindscience can only order experience and has no way of gaining access to
non-empirical domains of knowledge
3. Value judgements cannot be discovered in the empirical world and for that
reason they are without cognitive meaning in science.
V
Generality of SOL- Legal sociology should be the development of a general
theory of law, such that it seeks order wherever it is found. It seeks to discover
the principles and mechanisms that predict empirical patterns of law, whether
these patterns occur in this day or the past regardless of the substantive area of
law involved and regardless of the society. There is no serious SOL unless there is
generality.
A general theory of law is addressed to the relation between law and other
aspects of social life, including other forms of social control, social stratification,
division of labour, social integration, structure and substance of social networks.
Works of Malinowski, Hoebel, Gluckman, Bohannan etc have contributed
immensely to the general theory of law. Contemporary sociologists tend to limit
their attention to the American legal system and disproportionate emphasis is
given to the criminal justice system. One must study and address problems at a
higher level of generality thereby contributing to and benefiting from
scholarship. For instance, investigation of a policeman should treat him as an
instance of law and not as a person in himself. From a pure sociological point of
view it is unimportant to know that the policemen are human or to know how
their mind works. A pure sociology concerns law as a system of behaviour. Taken
in this sense, law feels nothing, no joy no sorrow. Study of the police contributes
to legal sociology only when it provides insight into legal behaviour, its empirical
profile, the social conditions under which it occurs, and its social implications. It
should tell us about the legal matter they handle, the principles they process the
cases upon, how police behaviour resembles other patterns of legal behaviour
etc. We thereby add systematically to the existing knowledge of this pattern.
END TERM
For Jurisprudential Sociology Philippe Nonet
Pure Sociology
Donald Black, describes himself as an uncompromising adherent of the
positivist approach. He reaffirms the doctrine that value judgements cannot be
discovered in the empirical world. Value considerations are as irrelevant to SOL
as to any other scientific theory. Black seeks to define limits within which social
inquiry must be confined or lose its purity. A purely sociological approach
should involve not an assessment of legal policy, but rather an analysis of legal
life as a system of behaviour. The intrusion of value judgements or personal legal
ideals of the investigator escapes the scope of sociology and enters
jurisprudence. The sociologists should return to this basic mission of a general
theory of law- a theory that seeks to predict the empirical patterns of law. Black
says he reasons from basic positivist principles. This orthodoxy of social
scientific enterprise has a deep distrust for evaluative elements of social
scientific discourse at its centre. This distrust is compounded by the scope of
ambiguity. Canons of general theory, clearly defined concepts, objectively
identifiable behaviour, against normative judgements, biased and ethnocentric
concepts, vague terms, etc.; follow a logical positivism. It seeks to mold social
knowledge according to grossly idealized model of hard sciences. The outcomes
of such strictly objective quest or study are generalisations that confirm either
the most obvious or the trivial concepts.
Blacks pure sociology is alien to the perspectives that have governed the
growth of sociology. SOL finds its origin in the normative study of politics, law,
economics, culture etc. and the conclusions of its social inquiry too gain meaning
from their contribution to politics, law, economics and other normative
branches.
According to Nonet, only the study of pure sociology will lead to illiterate
graduates. The study must encompass politics, law, economics, etc. that are not
just theoretical but also the major contexts of action that accumulate social
experience. This experience organized around the needs, interests, purposes,
aspirations, etc. and is wrongly ignored in the study of SOL. Berkeley program of
Nonet suggests that like other branches of sociology even legal sociology must
be jurisprudentially informed. Also, purely theoretical work would have a low
yield and so sociology of law must have a redeeming value of policy. This is the
response to the policies imposed in the society.
Black claims that an investigator inadvertently implants his ideals into his
scientific study and hence drifts from science to ideology. He holds bias as the
arch-enemy of science. A good social science requires disciplined disengagement
on part of the sociologist. This is why Black suggests the program of wilful
ignorance. Although ignorance and impoverished education have their own
demerits and risks, Black chooses the error of ignorance over the error of bias.
Nonet criticises this on the grounds that the act of choosing one error over the
other is in itself a bias and is contrary to Blacks general stand. His argument is
held to be flawed not because of his preference but because of the faulty logic.
This is especially because Black recognises that the acceptance of certain
standards by the investigator does not make the scientific findings invalid.
Nonet gives reasons for why the error of bias is actually more acceptable than
the error of ignorance. According to him the biases generate energy that makes
us think, so more the biases the better is science served. Since the scientific
validity of the findings is unquestionable despite biases, the growth of knowledge
is less hampered in the presence of bias than in case of total ignorance.
Compared to bias, ignorance is far more damaging to social enterprise. Bias may
lead to ignoring certain problems and considerations which may influence our
judgement, but if a policy of intrusive surveillance leads to more just and
efficient social programs, it is justified. Ignorance also diminishes resources we
have to analyse complex ideas, to make distinctions and uncover assumptions
and correct faults. To prefer ignorance is to choose ideology as well as
competence.
Two aspects distinguish applied sociology from what Black regards as
illegitimate evaluative sociology.
1. Standard of evaluation has a plain and specific operational meaning
2. Standard is drawn from a source other than the researchers own
preferences clearly discernible judicial decisions and statutes
It is still easy if the standard in a statute or a decision is clear, but a law is
backed by several statutes and decisions and hence can be confusing and
ambiguous. In such a case, choosing one of the criteria is to assume a partisan
standpoint. Clarity of meaning is what distinguishes the narrow specific policies
from the more general ones (like rule of law etc.) Whatever meaning a specific
policy may have, it has a larger purpose that it helps achieve in a particular
context. To evaluate the implementation of a policy is inevitably to further
determine the pursuit of larger ends. Thus, progressive clarification of values is
the purpose of policy research, as it is of jurisprudence. Thus, the sociology of
law must integrate jurisprudential and policy analysis.
Blacks emphasis on ignoring the purpose of the policy would lead to sterilize the
policy research. If the distinction between applied and jurisprudential sociology
suggests that the purposes and logic of jurisprudential inquiry differ
fundamentally from those of policy research, then it is doubly sterilized.
Jurisprudence grows on what it learns from policy. This is because the policy is
the realm of action where the abstract ideals are tested, redefined, elaborated.
Jurisprudential Sociology
A pure sociologist may try to remove all normative words from his language but
there still exist concept that have a social scientific connotation such as law,
government control, democracy, equality, arrest, police, family etc. In order to
rule out normative meanings, pure sociology either deprives itself and its
readers of that knowledge or requires denying the existence of knowledge that
tis invoked by the words used.
For instance, a legal system involving active participation of citizens must absorb
the naivety, ignorance of citizenry. Either the language is English and the
reasoning is incoherent or the logic is proper and we are forbidden to think of
concepts such as intelligence, naivety, ignorance, limits, as aspects of
quality and effectiveness of knowledge.
To choose only jurisprudence is equally useless. Both jurisprudence and pure
sociology must be involved together. This mutually respectful ignorance can be
disturbed by sociology if it enlarges its ambit to include legal, economic, political,
and other normative thoughts to broaden the concerns of the discipline. A
jurisprudential sociology is a social science of law that speaks to the problems
and is informed of the ideas. To the extent law is coercive, purposive, open to
social knowledge, it is subject to variations that require empirical inquiry. Those
jurisprudential sociological variables condition the ends law can pursue and the
resources it must muster for the same.
Roberto Unger - law is the official and autonomous legal order of the
modern state.
Talcott Parsons - lawyers law- distinct species of social norms
Juridical Plurism
Law in the contemporary society refers not only to state but also law applied by
international agencies, customary, territorial, mercantile, ecclesiastical law etc.
State or lawyers law is only one form of law and not to be seen as dominant in
sociological terms. Law is seen as existing at different levels, in association with
different institutions, social systems etc. These conceptualisations are significant
because the legal ideas and problems pervade social life. Pluralistic
conceptualisation stresses on the pervasive social importance of legal ideas as
responses to problems of social interaction. Pluralists believe it to be a possibility
of interpreting complex social dimensions, though it is also criticised by some as
being unable to explain the relationship between levels of law.
legal forms, yet beyond the reach of the lawyers analysis. Much social theory
supersedes lawyers law through administration and control.
FINAL VERDICT - (chooses a mid way)
A concept of law that treats lawyers law as central but treats the normative
systems as directly comparable and closely related theoretically, is of particular
utility in confronting contemporary problems.
To read
1. Industrial justice.
2. Beyond constitutionalism.
3. Citizenship.