The Sociology of Law condensed notes PDF

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Detailed notes on Sociology of Law within Jurisprudence combined with key lecture notes as well as information from 'Nutshell' revision guides in one document....

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THE SOCIOLOGY OF LAW (General reading: Hunt, The Sociological Movement in Law (1978); Cotterrell, The Sociology of Law (1992) seems legal system is closed off from rest of world- requires the mastery of a set of terms and way of speaking, socially linguistically, normatively closed off from outside world. ; Tomasic, The Sociology of Law (1985); Wacks, Understanding Jurisprudence (2005) ch. 7; Deflem, Sociology of Law: Visions of a Scholarly Tradition (2008))

The autonomy of law. (Sociology of law rejects the account of the autonomy of law at the heart of analytical legal positivism. Four connections between law and society: (a) Justice and legitimacy; firstly there seems to be a relationship between justice and lawlaw aims to be just (as NL tell us)- must reflect the standard fo those being subjected to coercion by law. Democratic process determines the content of law- our view of citizens are fed through. We might start to think if law fails to be just and legitmite- people might stop following- theres a broader sense if law fails to connect to our personal views on how society should be run, it CANNOT OPERATE. (b) Co-ordination; law is isolated, but in itself has a function, according to some theories- coordinates society. Law has social role. (c) Purposivity; law, is capable of pushing socieities in certain directions- could PHOHIBIT alchol, etc 1920s (d) Integration) as societies become morally diverse, becomes more fragmented. More pluralistic. Religion and morality are not able to form cohesive bon dwhich can pull society together in the way they used to. WE ARE LEFT WITH LAW- the only way society can be glued together. The only way we can establish general stanrds that can govern our conduct. Sociology of law reflects on these relationship.  Sociological jurisprudence- range of theories offered by legal philosophers about the relationship between law and society.  Habermas and Durkheim primarily sociologists looking at laws role in modern society.

Friedrich Karl von Savigny (1779-1861) (Volkgeist)  Writing on issues of role and function of law in maintaining societies.  Savigny argued customary law (common law) alongside language, was volkgeist (the spirit of the people) was being wiped away by a civil code and legislation- problem is once law become a code- it becomes disconnected from people and their culture.  Savigny said law exists 2 ways- exists customary norms in minds of people AND in form of state law and legislations (applied by specialst lawers and officials ) etc,

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 He said problem was once you codify law it becomes isolated and AUTOINOMOUS from underlying customs it replaced.

Idea law exists beyond the state was picked up by

Eugen Ehlich (1862-1922) (Macaulay (1963) 28 American Sociological Review 55 (“living law”); Beale and Dugdale (1975) 2 British Journal of Law and Society 45)  Started with a critique of positivism- defined law in terms of sov legislation, Ehlich thought was problematic- cos it removed law from day to day rulesa people adopt in daily lives  Said the lawyer tends to look at law in terms of the rules and resolution of disputes. But over large areas of social life there are rules that prevent these disputes from emerging. Disputes which emerge rarely come to court.  Ehlich’s problem is Lawyer is concerned & LP s concerned with ABNORMALITES of law, when it becomes difficult  Instead of the normalities of social life when people tend to live in accordance with a set of customs.  LP and lawyer will only tell us PART of the reality of law- they ignore the “living law” MACAULY  Sociologist of law- took idea of living law and took it in relation to practises governing contracts in Wisconsin in N. USA- what business practises were undertaken by business people in Wisconsin. If business people turn to law and lawyers to resolve their disputes it would effectively make sure relations went sour between contractors and undermine reputation of business people as untrustworthy.  Reality is “living law “according to M Appling Ehlich’s ideas -is there is a whole RAFT of cusotmry practises that regulate business practises in that state that having nothing to do with law. BEAL AND DUGDALE  found M’s conclusions broadly right in relation to English law- there ARE these informal practises that foten, if you were perceived as litigious (going to court at first sign of dispute) – you were not trusted as a business person, but B and D found if it was a risky deal, lawyers brought in early. Building up this idea of informal practises that govern social life which are disconnected from province of law that is defined by positivists- e.g. law is defined as will of sov.

Karl Llewellyn (1893-1962) Argues there are a series of “law-jobs”: 2

(i) resolution of troubled-cases; (ii) channelling of conduct to avoid trouble; (iii) allocation of authority; (iv) net-drive; (v) “juristic method”) (Two further points: o “law-men”; o functional integration through law). Llewelyn said often these law jobs are performed by law men- there are a body of people that perform the law jobs- and much jurisprudence is focused on these law men Says the law jobs are pervasive through the whole of society. Moreover, in order to prevent dispute emerging, stagger playtimes, e.g. using rules in order to avoid dispute occurring in first place. So : 1. Law jobs are pervasive through society as a whole. 2. Second point- law jobs PERFORM to ALLOW society to function/exist-law is a regulatory aspect to all life within a community.

Does the sociology of law need a concept of law?  Problem with these theories is they are very THIN on their concept of law.  e.g. AUSTIN’S is commands of a sov backed by sanction.  BUT what is law for Lleywlen or Ehlich- it’s clearly not just stuff we associate with legislation and the state and the sov and so on.  But WHAT IS IT? How is it different from any other social rule- (this was harts key question, how is law different from etiquette/morality/customs and sociological jurisprudence (whilst offering some v interesting insights into nature of how regulation and rules work in society fails to establish what law is- get collapsed into general category of law leg, etique/moral standards etc. This is also a problem for:

Emile Durkheim (1858-1917) (See: Durkheim, The Rules of Sociological Method (1895); Lukes, Émile Durkheim: His life and work: a historical and critical study (1992) 1-38)  Sociologist who said a lot about law and its function In his works the common theme is:  How society is to be held together, why is society simply not a collection of induvial. How is it cohesive?

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 His main claim is you can study society as a thing in itself and in distinction from individuals who comprise it.  Durkheims sociology of law: “The conscience collective” (anti-individualistic methodology) “…man is man only because he lives in society…” and “…collective life is not born from individual life, but it is, on the contrary, the second which is born from the first.” The conscience collective is “the set of beliefs and sentiments common to the average members of a single society [which] forms a determinate system that has its own life” (from Lukes, p. 4)).  Society is a thing in itself that can be studied. It has certain characteristics  Anti-individualistic  The CC a key ideas that allows him to defend the claim society is distinct from individuals who comprise it.  Lukes defines it ^  Durkheim says the collective life is not born form the individual life, he says individual life is BORN from collective life. The CC defines what constitutes normal behaviour for a society. Normal behaviour and pathologies.  The CC defines what constitutes normal/pathological behave.  Pathological behaviour, to society, is like a disease which could destroy the cohesion of society.  When people act in ways consistent with CC, society WORKS (integrated, cohesive)  When individuals act pathological, deviating – acting not in accordance w/ CC society becomes less integrated- tends to fragment and breakdown.  SO, Social institutions like law should eb understood as mechanisms that prevent/ remedy/solve pathological behaviour.  DURKEHIMS POINT HERE IS The role of law is to insure integration, cohesion and stability of society. Anomie (crime is a ‘factor in public health, and integral part of all healthy societies’).  Most of time CJS can respond to pathologies and deviaent behaviour and stablise system and ensure it constitutes to exist.  E.g. prision tries to reform them.  If CJS is working well, by processing deviant behaviour, it makes society healthy.  If CJS punishes criminals and make sit public, it reinforces the CC which devines what normal behaviour is ‘factor in public health, and integral part of all healthy societies’  Crime is necessary is effectively responding through criminal institutions which maintains and ensures the health of a society.  If crime/ other forms of deviant behaviour become too sever, society will start to break down and collapse. 4

 Death of society- where insitutions are unable to handle abnormal behaviour is called ANOMIE.  This is durkheims main idea. Different forms of society (have different ways social solidarity, social cohesion is maintained.) (Mechanical Solidarity; organic solidarity; division of labour).  Different forms of social solidarity have Different divisions of labour.In our society there is a very large division of labour & medieval- smaller- all used to work on the land. He says there are 2 diff forms social solidarity: MECHANICAL SOLIDARITY what we find in primitive/ feudal societies, low division of labour, people tend to do the same thing.  Durkheim said cos people tend to do the same thing, they tend to have broadly similar values. If low division of labour (people doing same thing), tend to be high levels moral homogeneity- people tend to agree on moral values.  People tend to conform, rather than have their own ideas about moral and political issues.  * Repressive law*- ideally suited to seriously punishing people that act abnormal against generally accepted moral codes ORGANIC SOLIDARITY Much more like our society.  Higher division of labour, diverse set of social roles.  People tend to have different moral beliefs, but they must recognise they are all mutually interdependent.  All dependant on each other. We tend to disagree more, but all recognise we are dependent on each other - cohesion of society is born from this recognition we are ALL mutually interdependent.  *Restitutive law* not concerned with punishment, more to do with reinforcing, associated more with damages in contract law etc. Durkheim’s view = this restitutive law is ideally suited to a society where there was little coherence on morality. Need a system to reinforce mutual interdependence we have on each other.  Durkheim’s theory is essentially as society becomes more complex, we have LESS moral homogeneity and as a result you have forms of law that reinforce interdependence rather than criminal law.

Durkheim’s concept of law (Mechanical society – repressive law; Organic society – restitutive law). PROBLEMS: 5

1. Historically problematic;  In ancient legal systems there is very little evidence of criminal law, e.g Roman law, most law is much like tort.  Most of primitive legal system is based on compensation. Rather than criminal law. As durkehim suggests.  Modern law is far more repressive than law found in many ancient societies. E.g. health and safety, subject people responsible to criminal sanctions. All kinds of aspects of our lives are subject to santions.  Doesn’t take into account the rise of the modern state. Ehlich- said there is brith of modern state- customary law is replaced by legi  Durkheim doesn’t recognise this move to autonomy and attempt to drive society to particular ends.  Modern societies tend to be v fragmented and morally diverse- high division of labour, but what states resopne to this is NOT to move to private law, where mutual independence can be enforced. The law becomes REPRESSIVE- and not restitutive. (habermas’ point.)  2. Very thin concept of law.  Durkheim doesn’t have a theory of law. He thinks law is simply an external reflection of morality. Durkheim says law, in order to operate adequately it must be functionally suited in the type of society it is designed to regulate. And law provides to be essentially a glue to hold society together.

Jürgen Habermas (1929-) (Read: Habermas, The Theory of Communicative Action (1984) vol. 2, pp. 48-62; 78-87; Habermas, Between Facts and Norms (1992) (translators introduction); Habermas, (1999) 76 Denver University Law Review 937) The discourse theory of law:  Starts with the claim Societies have become increasingly plusralistic and fragmented (AS WITH SYSTEMS THEORY).  Mean socieities have split into distinctive moral relglious and professional groups.  If its splintered in this way, by implication there are no common or shared values that hold society together.  IF THIS IS THE CASE legal system becomes fragmented and separate from society- we saw this in macualy’s work on business practices in Wisconsin- law becomes isolated.

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 This theory tries to reconcentialise law so that it can beomce REINTERGRATED IN SOCIEITY. Law then forms the primary role for which social intergration is possible ( in a fragmented and morally and religiously diverse society. Law is UNIQUE COS its caught between facticity and normativity  Between facts and norms  Facts are objective  Norms are generally understood as being subjective.people have diff values and diff sets of belifs. E.g other people are entitled to their own belief and have own set of norms  If you try IMPOSE your norms on others it can be seen as illegitimate.  This view of norms is central characteristic of what habermas calls the “post meta-physical world”, which we currently inhabit, world where there are no moral truths, norms are BLEIFIS  Not TRUE in the way that facts are.  PMW where we have SCIENTIFIC FACT(objective) AND MORAL BELIEF (subjective to individual).  Law is factual and exisit in a way morality doesn’t.  Law is unique cos its ALSO normative- tells you how you should be behaving. CAUGHT BETWEEN FACTS AND NORMS.  Habermas claims its this very special feature of law allows it to have a special role in integration of society (PMP world)  As morality and religion becomes essentially subjective, the facticity of law allows it to have a special role in holding society together. Law is the principal means of integration in modern pluralist society. (“Legal norms are what is left from a crumbled cement of society: if all other mechanisms of social integration are exhausted, law yet provides some means for keeping together complex and centrifugal societies that would otherwise fall into pieces.” (Habermas (1999)).  Habermas says law has to take a particular form to be the cement that holds society together What form must law take? Law is best understood as rooted in ‘communicative rationality’ and ‘deliberative democracy’ (strategic vs communicative rationality).  CR – attempt to reach compirmise through dialogue.exisits where individuals who are in dialogue respect eachother views and respect their rights as indivudals. Allow you to communicate with indivudals on equal terms.  ST – how you get people to do what you want them to do. E.g. organisations are set up so junior staff obey senior managers.

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 DD- embodies a political theory wheich articulares communicate rationality. It cannot be distinguished FROM representative democracy.  DD is a form of democracy which is rooted more generally in society, e.g. in social movements, the internet, it is THE WAY in which people within society in general are able to have their views heard and can voice their concerns to those in power.  DD is emobidies everywhere in society , “the life world” HABERMAS THEN ARGUES FOR:  A proceduralist paradigm of law-saying law should be based on this so it can respond effectively to the problems of the post metaphysical world.  This is where there is a few shared values but we must deliberate about what we should do as a society.  Law must articulate participation rights. The rights you need to contribute to public discourse. to have a say In how decisions are made.  The PP provides the grounding by which people are able to exercise their capacity to communicate with others at a societal level .  Says form law needs to take is a series of RIGHTS individals must have which are the preconditions an individual must have to paroticate in public discourse.

This ‘proceduralist paradigm’ (OF LAW) offers a third way between the liberal and welfare-state paradigms of law, also between natural law theory and legal positivism. (i) Basic negative liberties; e.g. rights to citizenship (ii) Rights to political participation- these allow citizens to ppt in PD- to have their say HEARD-to ensure law and political processes are responsive to citizens’ concerns (iii) Social and economic rights HABERMAS argues unless people have degree of social stablitity e.g. access to healthcare and housing, they are NOT in a position to be able to deliberate about their concerns. So HABERMAS reckons this procedural paradigm of law embodies these sorts of rights, law then provides the conditions of which public discourse is possible. He argues this offers a third way between the liberal and welfare-state paradigms of law, also between natural law theory and legal positivism Pp offers YES law should have a content in defending the 3 sorts of rights, but once these rights are in place, law can take whatever form the pubic discourse requires it to take.

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Law is not so much the product of debate, but the structure of debate, using a distinctive language (‘rights’).  HABERMAS sees problem as product of debate wouldn’t work in PMP world.  The way we understand law is traditionally is the OUTCOME of political contestation would tend to be illegitimate, for most people in society, given moral diversity of modern societies.  HABERMAS’ procedural paradigm tries to invert this way of thinking of law as the outcome of political contestation. Tries to say law is in essense the basis, privodies structure and language by which political contestation can take place, allows everyone to have a say and have their rights protected in the products of political contestations.  SO LAW PROVIDES A BACKGROUND TO POLITICAL CONTESTION, NOT THE END POINT OF POLITICAL CONTESTATION.  THE RIGHTS form the structure and language by which political conteestaition take place.  What is taken seriously within the political process- e.g. gay rights DEBATES proceeded in terms of RIGHTS, that there was in infringement of RIGHTS.  In the PMP world, where we disagree, the ONE THING WE AGREE UPON, and is embodied within a legal system IS RIGHTS.  RIGHTS FORM THE PRECONDITION TO WHICH WE CAN DELIBERATE FREELY AND THIS SOCIEITY CAN BE HELD TOGETHER

Teubner (1944-) SYSTEMS THEORY – advanced by (Luhmann (1927-1998); Teubner (1944-)) (Read: Luhmann, Law as a Social System (2004); Teubner and Patterson, ‘Changing Maps: Empirical Legal Autopoiesis’ (1998) 7 Social and Legal Studies 451; Teubner, ‘Regulatory Law: Chronicle of a Death Foretold’ (1992) Social and Legal Studies 1; Black, ‘Proceduralising Regulation’ (2000) 20 Oxford Journal of Legal Studies 597; Bankowski, ‘How Does It Feel to Be on Your Own? The Person in the Sight of Autopoiesis’ (1994) 7 Ratio Juris 254; Patterson, ‘Who Is Zenon Bankowski Talking To? The Person in the Sight of Autopoiesis’ (1995) 8 Ratio Juris 212; Capps and Olsen, ‘Legal Rationality in Complex Societies’ (2002) 11 Social and Legal Studies 547; Teubner, ‘Self-subversive Justice: Contingency or Transcendence Formula of Law?’ (2009) 72 Modern Law Review 1) Autopoiesis as a social theory- SYSTEMS theory is sometimes called this.  Originally devised as a term in evolutionary biological theory- it conceives of biological environment as being comprised as subsystems which go off on their own evolutionary path.e.g. galapogus islan...