SOCIAL THEORY OF LAW

SECOND LECTURE

I. Both anthropology and sociology have strong roots in the law.

n Marx and Weber trained as lawyers

n Marx and Engels’ mature views on the evolution of society indebted to the US lawyer Lewis Henry Morgan (Ancient Society, 1877):

o savagery, barbarism and civilization – all based on the mode of production

n Henry Stuart Maine, a UK lawyer, is responsible for the founding sociological transition from ‘ancient’ to ‘modern’ law as from ‘status’ to ‘contract’ (Ancient Law, 1861).

II. Why is social science rooted in law?

n Origins of entitlements, especially when complex but unformalized social systems pre-date a nation-state that wishes to claim overall jurisdiction

o Morgan influenced by the Iroquois Indians of NY and Maine by Hindu India (‘Indian’ = indigenous)

n The point of these exercises is to show that society can function without formal rules but may be improved through the formal systems represented by the nation-state, especially by resolving persistent internal conflicts.

o Progress in the law consists of removing arbitrariness of personal judgement

III. A standard 19^th century story of how the law develops:

n Originally entitlements descend through the mother because paternity cannot be established, but paternity emerges as society passes from the hunter-gathering stage of savagery to the fixed propertied agricultural stage of barbarism

o Marx & Engels liked Morgan because the shift to patriarchy associated with a shift in the mode of production

o They got from him the idea that law plays an increasingly important role in unequal societies as a means of sublimating or buffering recurrent class conflicts, which are themselves the result of property ownership becoming formally marked

n Morgan and Maine largely agree that the “modern” or “civilized” period (both use the word “Aryan”) covers the transition from law as reinforcing and perhaps adding to kinship norms to law as cutting across and perhaps undermining kinship norms.

n Lasting legacy of Morgan’s approach: Laws tend to reinforce group identity at the expense of outsiders (‘legislated racialism’)

o Morgan believed that law’s legitimacy rested on self-legislation: thus, the Iroquois law is legitimate but not the slavery laws against Blacks (Morgan also believed Blacks should be sent back to Africa to set up their own laws because they wouldn’t survive as free in the US).

n Sociological approaches to the law, such as Weber's, have tended to privilege formal legal systems as 'rational', and more generally focus on the spoken or written word as providing the binding force of law beyond a society's 'implicit norms'.

o E.g. Weber's 'charismatic' law is similar to the old Hobbesian/positivist idea of law as whatever is said by the recognized law-giver.

IV. What is the relationship between sociology and law?

A. The key difference between ‘traditional’ and ‘modern’ societies for the classical sociologists was that modern societies have formal legal systems that govern a nation-state

1. France and Germany :: Durkheim and Weber.

i. Britain is not really part of the story because the law played a relatively small role in nation-building; hence, the marginal impact of the utilitarian movement (Bentham, Mill)

2. This distinction was canonized as Gemein/Gesellschaft by Ferdinand Toennies (1887), based on a translation of Hobbes’ Leviathan, in which Gesellschaft is governed by the social contract.

3. It is clear that the classical sociologists regarded law as something added to, and transformative of, some ‘natural’ sense of social order.

i. Of the three classical founders of sociology, Marx had the weakest conception of law, which he saw as merely mediating and buffering capitalist relations to delay the worst possible effects of the system without any fundamental alteration.

ii. Durkheim saw the law as a rallying point for collective solidarity by both disciplining and expanding the capacities of individuals. This is why treason is often treated as the highest capital crime, even though the acts involved may have done or would likely do minimal damage to society.

iii. Weber, himself a trained lawyer, focused on the Hobbesian dimension of law as the disguised coercion of individuals, which is justified by the size and complexity of modern states.

	LAW CHANGES THE SOCIAL ORDER	LAW DOES NOT CHANGE THE SOCIAL ORDER
LAW EXPANDS INDIVIDUAL EXPRESSION	Law turns society into a whole greater than the sum of its parts (e.g. redistribution, standardization, conscription)	Law gives voice to what society already does and thinks (e.g. natural law, common law)
LAW CONTAINS INDIVIDUAL EXPRESSION	Law corrects socially unacceptable behaviour (e.g. criminal and tort law)	Law covers up the exercise of power (e.g. decisionism, justificationism)

POSSIBLE RELATIONSHIPS BETWEEN LAW AND SOCIETY

V. Fundamental Sociological Problem about the Law: How do you identify the Laws of the Land?

A. Marcel Mauss Paradox: Named for Durkheim’s main student, who was interested in cross-cultural understandings of personhood.

a. What strikes the observer as most distinctive about another society’s laws is what distinguishes that society from the observer’s own.

b. However, that distinction may be quite marginal to the society’s operation, and indeed the society may govern itself pretty much like the observer’s own.

c. Thus, empirical inquiry may artificially amplify differences in legal systems.

B. Notice the different methods that would be used to gain knowledge of ‘social laws’ in each of the four senses below:

	FIRST PERSON JUDGEMENT (EMIC)	THIRD PERSON JUDGEMENT (ETIC)
LAWS APPLIED TO ONESELF	Laws stated on demand	Regular conduct
LAWS APPLIED TO OTHERS	Laws as inferred from hypothetical cases	Regularly applied sanctions

VI. Reasons for promoting a sociological or anthropological approach to the law:

n Defend the integrity of native cultures from external intrusion: Malinowski on law as ‘reciprocal obligations’, which implies that native societies are functional, so that imperialists can turn a blind eye to internal inequalities for purposes of keeping the peace.

n Provide an implicit critique of formal systems of law in one’s own society, perhaps upholding a judicial activism that the laws formally disallow: e.g. Karl Llewellyn in the US, whose ‘legal realism’ runs together common law, natural law, and policy-directed jurisprudence

n Encourage a systematic study of the consequences of applying the law in specific cases, and hence provides input for future legislation, especially in terms of enabling the law to realize what it is trying to accomplish (e.g. equal protection)