Updated: Sep 25
(aka Sociological Legal Theory)
Now we have read a lot about how philosophers endeavor to dissect what "law" meant, how about how law interacts with our society? Why did capitalism arise and how does equality and freedom play a role in it? Carry on to learn more!
Emile Durkeim (1859-1917)
due to society's movement from religion to secularism, the law is less concerned about punishment than compensation
punishment -(derived from)→ crime → common conscience
types of social solidarity:
mechanical solidarity: uniformity of values, absence of division of labor
organic solidarity: division of labor, high degree of interdependence
Max Weber (1864-1920)
revolves around the idea of 'rationality'
which diverges into 'formal' and 'substantive' legal system - is the system 'internally self-sufficient'?
attempts to explain the evolution of capitalism in western societies:
law is relatively autonomous - "fundamentally related but not determined by economic factors"
English law system is less "substantive" than the Roman law (formal in the sense that legal writings have to be formatted in a specific way)
lawyers are specialized to cater to their commercial clients
binding of precedents - 'cautelary jurisprudence' (laws are drafted to prevent future litigations)
this leads to formal rationalization of law
Why should people obey the law (hence, legitimate domination)?
traditional - obeying because of long tradition of obedience to power
charismatic - obeying because of the characteristics/personal charms of the sovereign
legal-rational - obeying because of the recognition of the legality of the rule and the right of the authority
What is good about legal-rational authority?
'Formalistic impersonality' - judges can impartially apply the rules
It is noteworthy to point out that many of Weber's detractors found his analysis of domination too simplistic.
Karl Marx (1820-1895)
historicist: social evolution is unavoidable due to historical forces
views the origins of laws in two ways:
sprung from economic base (instead of moral)
'class instrumentalism' - expresses the will of the dominant class (but do they have a unified consensus)
latter Marxist - mediation of classes (connection between different classes)
rejects 'consensus' model for the evolvement of our society:
the presence of 'conflict' between opposing camps (i.e., the powerful and the powerless) of the society, where law is used to keep dominant group in control
instead of the unitary of society and only conflict in personal level
argues that revolutions will inevitably lead to classless communist society which made law unnecessary - this invites criticism as law is also used to regulate economy
rejects the notion of justice and rule of law as it is a concept dependent on material conditions, hence equating it to communism
latter Marxist (E.P. Thompson) - embraces the idea of rule of law
repudiates the idea of individual human rights as capitalism and selfish
distinguishes 'right of citizens' (political rights) from 'right of men'
argues that 'right of men' is problematic as it induces egotism
to achieve true individual liberty:
"triumph of human elements over material world"
Jürgen Habermas (1929)
the consequences of capitalism and a strong centralized authority is the intrusion of 'lifeworld' (which meant "common norms and identities")
hence, need 'communicative action' which is based on equality and freedom
differentiates 'law as medium' from 'law as institution':
law as medium - general rules that overpowers a state
law as institution - incorporates shared values/norms as an institution
Michel Foucault (1926-1984)
disciplinary power instead of law plays an engaging role in every areas of our life
coined as 'genealogy' - analysis of the nature and function of power (e.g., prisons) and how discipline arise
practices : techniques
'cellular' : "draws up table"
'organic' : "prescribes movements"
'genetic' : "imposes exercises"
'combinatory' : "arranges 'tactics' in order to obtain the combination of forces"
The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.
P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!