Social Foundations OF LAW PDF

Preview

Summary

Download Social Foundations OF LAW PDF

Description

SOCIAL FOUNDATIONS OF LAW

DEFINITION OF CORE TERMS 1. Social This word means “of or pertaining to human society” or “of or pertaining to the life, welfare and relations of human beings in society.” 2. Social order To say social order is to suggest: - Accepted rules of social arrangements in the society for example the patterns of distribution of honour; - the condition of human relations in the community; - issues of ordinary life and welfare; and - The manner in which social honour is distributed in the community between typical groups. 3. Classes These are large groups of people distinguished by their position in the system of social production, by their relationship to the means of production, by their role in the social organisation of labour and by their share of the social wealth. Marxist scholars have done profound research in the area of class formation. The stages involved in this process are: a) primitive tribal society: at this early stage, there are no classes and life was basic, simple and based on tribal unity and blood relations; b) slave owning society: at this stage, social order was divided along slave owners and the slave class society emerged here; c) feudal system (feudalism): social order at this stage was organised along land ownership since land was the only over-whelming wealth in the society. Few people were feudal Lords (land owners) and the rest, who formed the majority were serfs who lived under benefits derived from one of the Lords. d) Capital system: at this stage there is creation of market for goods and services. To have or not to have depends on power to purchase. There are two

broad classes: owners; and workers which are determined by the factors of production. 2 In a typical modern industrial society, there will usually be the following classes: Upper class; upper middle class; lower middle class; and lower class. Political power is usually in the hands of the upper and lower middle class since majority of people falls in this class and are therefore able to influence political results due to the power of their votes. 4. Community This is a grouping of people who have a substantial amount of sharing in feelings, sentiments and relations. It is of spontaneous formation for example a clan, religion, etc. The specific material making up a community is divided into: a) primary units – these are ground facts for example individual persons, families, extended families, clans, ethnic groups, religious groups etc; b) secondary units- marked by the fact that they have been deliberately organised by the people in the society e.g. youth groups, women organisations, co-operative societies, trade unions etc. 5. Society This is larger than a community and its formations is not spontaneous. Its formation is based on some artificial regional principles. In Kenya for example, a society is based on geographical aspects. 3 NATURE OF SOCIETY Contrary to the belief held by many, society is not a mere loose group of independent units. Society is a complex network of structures having links and dependencies with other social elements and forces. These structures include law, political institutions (e.g. parliament, political parties),

economic and commercial institutions (e.g. trade unions, manufacturers associations, cooperative societies), religious institutions, teaching institutions, cultural institutions (e.g. TV, radio, press) etc. Social elements and forces on the other hand include certain regular patterns of behaviour, relationships and beliefs. All the institutional structures are however not equal. In each society, individuals and groups are ranked according to their place on a “ladder of influence” with some ranking higher in terms of power, prestige, wealth or some other criteria. To express this idea of social ranking, sociologists use the term “social stratification.” SOCIAL STRATIFICATION Stratification is a multidimensional phenomenon. Human populations are stratified in various ways and each of these alternative modes of stratification provides a basis for a different conception of class. The best way to understand the phenomenon of social stratification is to contrast it with certain other social phenomenon. Social stratification should for example not be confused with Social differentiation. The latter occurs when we have people with distinct individual qualities and social roles. People are differentiated by biological characteristics (eg. Sex, size, height, strength, agility), by social roles, work tasks or occupations. These differences must not be ranked on a hierarchy or evaluated differently. It however sets the stage for inequality and social stratification. 4 Social stratification is also different from Social inequality. The latter is a condition whereby people have unequal access to valued resources, services and positions in the society. It can emerge in terms of how individuals and groups are themselves ranked and differing positions in social structure. Notably, social inequality can also emerge from social differentiation since some roles or social positions place some people in a position to acquire a great share of valued goods and services. Social stratification therefore refers to a situation where inequality and differentiation have been hardened or institutionalized thereby creating a system of social relationships that determines who gets what and why.

Institutionalization means that a system of layered hierarchy has been established i.e. rules have been created explaining how rewards are distributed and why they are distributed in such a way. The term structural inequality is also used to refer to social stratification. A System of social stratification helps shape how people live, their opportunities for a better life, their mental health and life expectancy. It has an important influence on events such as war and peace, economic expansion or stagnation, unemployment and inflation and government policies of many kinds. NB: When a class or strata is primarily hereditary, such placement is referred to as ascription i.e. people are placed in position of stratification system because of qualities beyond their control e.g. race, sex, class at birth etc. When class placement is due primarily to qualities that can be controlled by individuals, such placement is referred to as achievement. CONCEPTIONS OF SOCIETY There are two ideal conceptions/ideas/view of society: a) the integration consensus- which describes society as functionally integrated, relatively stable system held together by a basic consensus of values. Social order is therefore considered as more or less permanent, 5 and individuals achieve their interests through cooperation. Social conflict is viewed as the needless struggle among individuals and groups who have not yet sufficiently understood their common interests and basic interdependence. b) The conflict-coercion conception- this perspective considers society as consisting of individuals and groups characterised by conflict and dissension and held together by coercion. Social order is temporal and unstable because every individual and group strives to maximise its own interests in a world of limited resources and goods thereby brewing conflict. Due to the fundamental differences between the two conceptions, when law in society is viewed in one of these two perspectives, two different conceptions of

the role of law in the society as emerge as follows: a) The integration- consensus conception This perspective considers law as a neutral framework for maintaining social integration. For example, according Roscoe Pound, one of the most influential American Sociological Legal Scholar, law is a form of social engineering directed toward achieving social harmony. The purpose of law is therefore to maintain and to ensure those values and needs essential to social order, not by imposing one group’s will on others but by controlling, reconciling and mediating the diverse and conflicting interests of individuals and groups within the society. In other words, the purpose of law is therefore to maintain harmony and social integration. This position is supported by Talcott Parsons who opines that the primary function of a legal system is integrity since it serves to mitigate potential elements of conflict and to oil the machinery of social interaction. 6 Proponents of this perspective further advocate that laws law exists to maintain order and stability in the society. In this regard, law is a body of rules enacted by representatives of the people in the interests of the people. A fundamental assumption of this perspective is that: the political system is pluralistic; and society is composed of a number of interest groups of more or less equal power. Law therefore reflects compromise and consensus among these various interest groups and the values that are fundamental to the social order. b) The Conflict –Coercion Conception This perspective considers law as a weapon in the hands of the dominant class. When diverse groups come into conflict, they compete in order to have their interests protected and perpetuated through the formalization of their interests into law. Unlike the pluralistic conception of politics, law does not represent a compromise of the diverse interests in the society, but rather supports some interests at the expense of others. Law is therefore not a device to control interests but rather an expression of interests, an outgrowth of the inherent conflict of interests in the society. It is the

state’s coercive weapon which maintains the social and economic order and supports some interests at the expense of others, even when those interests are the interests of the majority. This view has been criticised because not all laws are created and operated for the benefit of the powerful in the society. For example laws on murder, robbery, arson, assault etc benefit all members of the society irrespective of their economic position. The perspective is therefore too broad and overstated. These two conceptions have however been described as being equally valid aspects of every imaginable society. 7 SOCIAL RELATIONSHIPS Human beings are social in nature. For this reason, they interact and form relationships in various ways, as follows/among them: 1. Economic relationships At the economic level, human beings engage in two forms of relationships: i) relationships with nature: people use nature either for direct consumption or in order to produce things which they can consume; and ii) relationships amongst themselves: as they use nature to produce, people enter into property relationships with each other which are called “relations of production” since they express the personal and social positions each person occupies within the production process. In practical terms, these relationships are expressed in terms of who owns and controls the means of production and distribution. 2. Political relationships Politics expresses the relationships of social power. Social organisation largely depends on the control exercised on social relationships and processes. The power to control and determine the direction of these relationships and processes is what constitutes political power. The social distribution of this power to specific individuals who play specific roles in ordering social life expresses the nature of political relationships. Law is therefore merely one of the forms of expressing political power, the other form being naked violence (cf. slave master relationships). 3. Cultural relationships

Culture is the totality of socially-learned behaviour. It stands for all the items of behaviour which one learns by virtue of belonging to a social unit with a distinct set of modes of action and thought. It grows out of the habits and beliefs of a specific people. Culture represents the whole array of socially-acquired knowledge which determines one’s behaviour in any social situations. It encompasses matters such as morality and aesthetics. Inevitably therefore, culture finds its way into law. 8 PART IV: THE NATURE OF LAW Origins of Law as a Social Phenomenon Scholars have, over the years, struggled with the issue of the origins of law and many theories have been propounded in an attempt to explain this. These theories can be classified into two broad categories: a) idealist arguments These arguments can be summarised as follows: - that law originates from the dictates of a supernatural being; - that law is provided to humanity by nature as a set of immutable principles from which individual rules of law are then drawn; - that humanity generates law on the basis of some ideal sense of universal justice Proponents of this view fall within the wider category of Natural Law theory. Plato, an ancient Greek philosopher for example, argued that law existed as a natural and ideal phenomenon and it could only be known and applied by humanity through reason. Cecero, another Greek Philosopher further opined that the ultimate law was “heavenly law” which is the expression of God’s mind. All human law has to be compatible with the heavenly law for it to be valid and for this reason, human law should be derived form heavenly law. b) Materialist arguments According to these, law has a purely social origin as it arises out of the specific activities and relationships entered into by people in society. The arguments therefore recognise social activity as the producer of legal phenomena.

Proponents of this view fall within the wider Utilitarian and Marxist legal theories. According to the utilitarian John Locke for example, law arose after the advent of a politically organised society. Before this, man was in a state of nature enjoying absolute freedom except for the vagaries of nature. As society developed, political power arose. Law is therefore a mere expression of this power. It arises out of social activities and is therefore not innate. 9 The Marxist-Leninist theory also falls within this category. The theory posits that law is not a natural phenomenon since it arose after the breakdown of primitive social formation. This process gave rise to antagonistic class relationships which threatened to tear the society apart if new forms of regulating social behaviour were not developed. In response, law was developed as a tool for avoiding and negotiating conflicts between the various classes. Nature of law There is no specific consensus as to the true nature of law. However, there are certain elements about law that have received general consensus. These are: 1. law is a body of rules governing social behaviour; 2. law imposes sanctions to ensure compliance with its demands; 3. law is generally in imperative form- it does not leave the subject with the discretion as to whether to comply with its dictates or not except in the form of alternatives; 4. law is largely (not always) in written form; even where oral tradition prevails, final proof rests on some formalised pronouncement which is recorded in the form of governing principles; 5. law is made either directly or indirectly by some specialised body with the authority to do so; 6. Law is a system of rules which: forbid certain activities (e.g. theft, murder); or impose some conditions under which the activities may be carried out (e.g. licensing); or enable certain activities to be carried out with some form of legal

backing and protection (known as power-conferring rules e.g. the law of contract.) 7. Law has a normative character- law arises social rules which govern life in the society. A rule is a general norm guiding conduct or action in a given type of situation. In this regard, a rule prescribes what activity may, should or should not be carried out in a specified way. 10 Since rules guide people in what they may, ought or ought not to do, they are said to be normative in character. The meaning of the term “normative” is best understood if contrasted with the term “factual.” A normative statement states what ought to happen (an “ought” statement”) while a factual statement states what actually happens in fact (an “is statement”). All rules whether legal, moral or customary are normative since they prescribe standards of behaviour which people ought to conform to. THE MEANING OF LAW: AN INTRODUCTION TO LEGAL THEORY Any attempt to define law faces the difficulty that law while manifested in physical objects for example a statute books, is in essence, an abstraction. For this reason, law cannot be defined in terms of its physical characteristics. Different scholars have therefore made attempts to define law by propounding various theories. Some of these theories include: 1. THE NATURAL LAW THEORY In its simplest definition, natural law is that "unwritten law" that is more or less the same for everyone everywhere. To be more exact, natural law is the concept of a body of moral principles that is common to all humankind and is recognizable by human reason alone. Proponents of natural law theory can be categorized in two broad groups: a) traditional natural law theorists These include Cecero, st. Thomas Aqinas and Finnis. They argue that beyond and superior to the laws made by man are certain higher principles of natural law which are universal, immutable and eternal and which are awaiting discovery by human

reason, to which man made law must conform if it is to be valid. 11 They therefore argue for the existence of a “higher law.” For some, “higher law” is interpreted literally as the law derived from divine revelation while for others, it is interpreted metaphorically to reflect our mixed intuitions about the moral status of laws. Natural law theorists are therefore both believers and atheists. The word “natural” as used by natural law theorists does not refer to the law of nature but rather presents the idea that man, being part of nature, has a nature which inclines him towards certain ends for example protecting family or even basic survival. Natural law therefore is that which furthers the attainment by men of the ends that nature has made it man’s nature (or character or tendency) to seek to achieve. In this regard, natural law comprises a body of permanent, eternal truths, truths embodying precepts of universal applicability, part of the immutable order of things, unaffected by changing human beliefs and attitudes. These truths are not revealed to man but are ascertainable by man through the exercise of the reason endowed to him by nature. The traditional theory of natural law has a long history starting with the ideas of the philosophers of the golden age of Greece in 5th Century B.C., then the stoic school of philosophers in the early centuries of the Roman empire, then passed on to the thinking of the church which gave it a religious perspective, then came the secular philosophers of the 16th century and ultimately the 17th and 18th century theorists who introduced the concept of natural rights. HISTORICAL DEVELOPMENT OF NATURAL LAW 12 A. THE ANCIENT GREECE Plato and Aristotle are the most famous ancient Greek philosophers. Although they were not, strictly speaking natural law theorists, there are strands in their philosophies which can find a place in natural law thinking, as later developed. Plato propounded the doctrine of forms where he argued that forms are transcendental archetypes that exist independently of the physical world, human

mind, space or time. In this regard, qualities such as law, justice and truth exist in their own right and all what men can do is merely to reproduce them. However, to be able to reproduce them, man must seek knowledge of the eternal truths ince these qualities are eternal and immutable and therefore constitute moral principles of unchanging human attitudes and beliefs by reference to which all human actions must be judged. Aristotle, on his part was a marine zoologist who spent a lot of time observing the world around him. From his studies of the natural world, he realized that natural phenomena were in a state of perpetual change, there was always progress. For this reason, he concluded that the universe is dynamic, always engaged in the process of becoming, of moving towards an end which immanent within itself from the start. Law aids human beings in this process. Plato and Aristotle...