Transcript cc400locatinglawweek1introductiontotheory

Advanced Theory
Locating Law (E. Comack)
CC 400
• In order to understand the law/society
relation, we need to place law within the
nexus of race, class, and gender relations
in society.
• We should think of social theory as a “set
of answers to questions we ask of social
reality.”
• Theory then, rather than being avoided,
should be something that each of us
closely interrogates. By doing so we have
the potential to gain a clearer sense of not
only our own, but also other peoples’ ways
of making sense of the world.
• While poverty, inequality, social conflict,
and suffering are by no means new
phenomena, they can take on specific
forms under different social and historical
contexts.
• Theory is not static in one sense, it builds
on previous works; it is a cumulative
enterprise.
The Official Version of Law
• Impartiality, neutrality, and objectivity may
be viewed as the cornerstones of the
modern legal system.
• In both its form and method, law asserts
its claim to be impartial, neutral, and
objective.
• The form of law is partly reflected in its
adherence to the adversarial system. Law
is set up as a contest between two
parties, each representing its own version
of events.
• That judges are impartial in their decisions
is reflected in the doctrine of the
separation of powers: the legislature
(maker of law) is separated from the
judiciary (administrators of law).
• There is also a legal mode of reasoning
that is captured in the notion of legal
positivism that asserts that the focus of
legal players is on facts and not on values.
The result is a neutral, value-free, and
objective science of law.
• Perhaps the most central doctrine is the
rule of law which encompasses two
broad claims:
1. Everyone is subject to the law.
2. The law treats everyone the same, as
legal equals
• In both its habit and form, the law
promotes an image of itself as fair,
disinterested, just.
• In doing this, however, the law presumes
the existence of a particular kind of
individual and a particular form of society.
• The subject of law is a universal, abstract
individual.
• This concept is historically specific –
springing from Western societies.
• It has emerged out a particular set of
philosophical and theoretical ideas – a
combination of elements drawn from
conservative and liberal social philosophies
CONSERVATISM
• Finds its roots in 17th century writer Thomas
•
Hobbes.
Man is characterized by self-interest, egoism and
unlimited desire for personal gain.
• The state of nature is typified as ‘war of all
against all’.
• Man’s saving grace was that he possessed
reason, and reason told man that his
interests would be best served through
cooperation and through the formation of
a society.
• Men struck a social contract. This social
contract empowered the institutions of law
and government to arbitrate the conflicts
between individuals and to ensure and
orderly, organized society.
• The main function of the state was to
preserve the rights and freedoms of
individuals to pursue their material
interests with minimum interference from
the powers that be.
• In the process, social order was
maintained and upheld.
LIBERALISM
• Has its roots in 18th century – Jean
Jacques Rousseau and John Stewart Mill
• Liberalism places heavy emphasis on
rationality, that is, on the individual’s
ability to think abstractly and objectively.
• At the core of liberal thought is the belief
in the rights and freedoms of the
individual.
• Best exemplified in Mill’s dictum
“individuals should be free to pursue their
own happiness so long as they do not
infringe on the similar rights of others.”
• The purpose of law is to allow individuals
to realize these inherent rights and
freedoms.
• In the law’s view, individuals are separate,
autonomous beings – legal subjects – who
must be held accountable for their actions.
Traditional Approaches in the
Sociology of Law
1. Functionalism – takes the Official Version
of Law as a given.
2. Liberal Pluralism is more skeptical of its
claims.
3. Marxism rejects law’s claims altogether.
The Functional Approach
• Durkheim, Parsons, Merton, Albert Cohen
(subculture theory) and Travis Hirschi
(control theory).
• Like the Official Version of Law,
functionalism draws on elements of
conservative social philosophy in
formulating an image of human nature.
• Durkheim was an advocate of the
positivist method – understood as the
position that it is possible to adopt the
laws and methods devised to understand
the physical world and apply them to an
analysis of the social world in order to
arrive at the ‘truth’ about human
behaviour.
• Theories that aim to understand the
operations of different processes in society
– like the law-society relation – are each
premised on particular conceptions of
what ‘society’, at a fairly abstract or
general level, looks like.
• In formulating their conception or image
of society, functionalists utilize an organic
analogy.
• One implication of the conception of
society is that, for analytical purposes, a
particular institution, (like the legal
system) can be separated out and studied
in isolation from the others by looking at
its structures and its functions.
• Because the focus of the functionalist
approach is so heavily centered on the
sources of order in society, it is an
approach that can not handle conflict very
well.
• Conflict, when it is recognized, tends to be
viewed as either pathological (in the sense
of being temporary), or as functional.
• Likewise, functionalist are not well-
equipped to handle an analysis of power.
To the extent that they incorporate power
into the analysis, they see it as a matter of
societal domination – or the power or
society over the individual.
• Functionalists are aware of social inequalities
– they understand inequality a both ‘natural’
and ‘functional’.
• Inequalities are natural in the sense that
they emerge out of inherent or innate
differences between individuals and groups
(like those based on sex or race).
• Inequalities are functional because in a
healthy and stable society, individuals
know their place, they have a duty to fit in
and perform their assigned tasks.
• Because functionalists see culture or the
normative system of society as the main
force of social integration or cohesion,
they necessarily see law as an important
integrating mechanism.
• For the functionalist, law both represents
and reinforces the collective conscience of
society.
• In applying the organic analogy, Durkheim
suggested that law plays a role analogous
to the central nervous system in an
organism
• Durkheim’s view on crime is also
instructive. Crime is defined as the
sanctions imposed.
• That is, crime is an action that elicits
punishment.
• Crime consists of acts that are universally
disapproved of by members of society.
• Punishment against crime, according to
Durkheim, takes the form of vengeance.
It avenges the moral outrage aroused by
the criminal.
• It is a means of defense for society and the
•
collective conscience.
This is where the role of the state enters.
Because crimes are behaviours thought to be so
serious as to threaten the entire society not just
the victim, it falls to the state, as the
representative of members of society, to take
action against the offender.
• In this respect, functionalism
conceptualizes the state as a neutral force
operating on the behalf of society as a
whole.
• The state’s primary function is that of
social control: ensuring individual
conformity to the normative system.
• Because functionalism locates law as the
institutional expression of the norms and
values of the majority, the approach does
not need to question the Official Version of
Law.
• For instance, with regard to criminal law,
functionalists make no attempt to question
the political nature of crime – to question
whether definitions of “what is criminal”
provide a means by which one segment of
a population controls or manages another.
• Instead their focus turns to the criminal
offender and questions the causes of an
individual’s inability to conform to the
norms and values that everyone else in
society deems acceptable.
• Over-riding the explanations for the
causes of crime is the assumption that
crime in a lower-class phenomenon.
• Since the structure of society goes
unexplained, social problems like crime
come to be viewed as the problems of
certain groups or individuals who fail to fit
the requirements of the social order.
• Solutions proposed tend to focus on
policies of re-socialization or rehabilitation,
increased social control (for example,
more police) and harsher penalties for
wrong-doing (such as lengthier prison
terms and capital punishment).
The Liberal-Pluralist Approach
• Finds its roots in the work of Max Weber, the
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Chicago School (Mead and Cooley), and in
criminology – Edward Sutherland’s differential
association theory and in labeling and group
conflict theory.
Liberal pluralism does not go as far as the
functionalist approach in its acceptance of the
Official Version of Law.
• However, though more skeptical, the
liberal pluralist approach is, in an overall
sense, compatible with the functionalist
approach.
• They view human as naturally competitive
and power-seeking: everyone wants the
most out of life and aspires to be number
one.
• At the same time, however, individuals are
possessed with certain innate human
rights and freedoms that can only be
realized through society.
• The task, therefore, is to ensure that the
competition between individuals is fair and
that society is organized in the way that is
most amendable to realizing these rights
and freedoms.
• In contrast to the functionalist
perspective, liberal pluralism does not
make the assumption of a consensus of
dominant norms and values in society.
• Instead they view society as consisting of
a plurality of competing interest groups,
each on intent on realizing their particular
interests or goals.
• Weber, for example, posited that the
competition for power occurs within the
stratified order of society.
• Weber conceptualized stratification along
three dimensions.
• Power in society derives from three
different sources and the amount of
power an individual possesses is related
to his/her standing along each of the
three orders.
1. An economic order: which features classes.
2. A social order: which features status groups.
3. A political order: which features parties.
• Since the sources of power are multi-
dimensional, no one variable is seen as
‘determining’.
• Liberal pluralism is better equipped than
the functionalist perspective approach to
handle an analysis of conflict and power.
• However, the liberal pluralist approach
sees conflict largely in cultural terms, as a
conflict of interest between competing
groups in society.
• It views power largely at the interpersonal
level.
• While the liberal view of society sees
power and conflicts as integral
components, consensus is also prominent.
• While functionalists are inclined to view
inequality as the product of ‘natural’
differences between individuals, and an
inevitable feature of modern society,
liberal pluralists hold a different view.
• They see the existence of a structure of
inequality – that certain positions in
society have more rewards and privileges
attached to them – as an inevitable
feature of modern society.
• But while such structural inequalities are
inevitable, liberal pluralists assert that a
just society is one in which the
competition for power and privilege is fair.
• In other words, a just society is where
people should have equal opportunity to
compete for unequal rewards.
• In this regard, liberal pluralists are inclined
to view the state as an impartial umpire
whose job it is to channel and adjudicate
social conflicts.
• Different individuals and groups will
compete with one another to use the state
to their advantage in the realization of
their own interests.
• A primary role of the state then, is to
provide the rules of the game by which
this competition is played out.
• Liberal pluralists see law as an
autonomous sphere in society.
• Law can be (but necessarily) influenced by
economic factors and it can also influence
economic activity.
• In what is similar to the view of the state
as an arena in which political power is
contested, modern liberal pluralists view
the law as one more form or dimension of
power.
• In contrast to the consensus-oriented view
of the functionalists, liberal pluralists posit
law as a reflection of power differentials in
society.
• Accordingly, crime is not an inherent
property of individuals, but a status
conferred on the individual by those who
make and enforce rule (ie Howard
Becker’s labeling theory).
• For liberal pluralist, then, crime and
deviance are social creations.
• As a result, the emphasis within liberal
pluralism is shifted away from the etiology
(or causes of criminal behaviour) as in the
functionalist approach, and towards the
processes by which particular acts come
then to be defined as criminal.
• By attending to the concepts of power
and conflict, a liberal pluralist analysis of
the law-society relation offers a number
of advantages over the functionalist
approach.
1. It directs attention towards the question of
the origins of law.
2. By attending to the political nature of crime,
liberal pluralists have been led to
investigations of how those who enforce and
administer the law (police and judges)
exercise their discretionary power.
3. By shifting the focus away from the criminal
offender towards the question of the social
creation of crime, liberal pluralism helps to
mitigate the lower-class bias found within
the traditional functionalist accounts.
• For example: Edward Sutherland (1961)
was instrumental in directing
criminologists to ‘look up’ the class ladder
to examine the actions of white-collar
offenders.
• Despite the advantages, the liberal
pluralist approach has a limited
explanatory power because of how it
treats power and conflict.
• Despite the advantages, the liberal
pluralist approach has a limited
explanatory power because of how it
treats power and conflict.
1. It fails to adequately clarify the source of
power (they deem how authority becomes
authority is irrelevant).
2. While liberal pluralists have generated research
on the operation of the criminal justice system
- the use of police discretion, sentencing
practices – their tendency to remain a the
interpersonal level has led to a failure to
consider how the working of the various
agents of social control are influenced by the
overall structure and operation of the state in
modern society.
3. The reluctance of liberal pluralists to
single out any one variable as
determining or primary leads to
eclecticism in addressing questions about
the relation between law and other
structures in society – especially the
economic sphere.
• Liberal pluralists open the way for a
critique of the rule of law doctrine.
• If laws originate from the moral
inclinations of the more powerful in
society, and if agents of law (police and
judges) utilize their discretionary powers
in ways that might disadvantage those
with whom they come into contact, then is
justice really blind?
• Liberal pluralism simply asserts that
consensus exists, it does not question the
basis on which it rests. Where does
consensus come from? Why does
everyone agree with the rules?
• Similarly, although liberal pluralists begin
to question blind justice, they frame the
analysis at the interpersonal level (as
competition between individuals and
groups) and do not extend that analysis to
the structure or framework of society.
• In response to the perceived shortcomings
of the liberal pluralist approach theorists
studying the law-society relationship
where increasingly drawn towards a
Marxist analysis.
• Until the 1970s much of the work on the
law-society relationship had centered
around the study of crime.
• The shift towards a Marxist perspective led
to a different orientation.
• Because Marxism is a theoretical approach
that directs attention to the broader
structural features of society, it became
increasingly evident that a more
comprehensive understanding of the
phenomena of crime required an
investigation of the wider social, political,
and economic factors impinging on it.
• Consequently, the focus was no longer on
crime per se, but on situating law – both
civil and criminal – within the context of
the role of the state in a capitalist society.
• In their examination of the law-society
relationship, Marxist raised the issue of
the class character of law under
capitalism.
The Marxist Approach
• Dates back to the 19th century – roots in
the work of Karl Marx and extends into the
20th century with the works of the NeoMarxists and the emergence of the new
left in the 1960s.
• In criminology the 1970s saw the
development of a radical or critical
criminology that, in its initial stages,
consisted of a critique of liberal pluralism
(labeling and group conflict theories) for
not going far enough in their assessment
of the functionalist approach.
• While functionalist approaches can be
characterized by the acceptance of the
Official Version of Law and liberal
pluralism by its more skeptical stance, the
Marxist approach is notable for its
rejection of law’s claims.
• The Marxist approach starts from an
assumption opposite to that of
functionalism, instead of stability and
consensus, society is characterized by
conflict, antagonism, and exploitation.
• Moreover, in contrast to the liberal pluralist
approach, conflict is rooted not in cultural
factors like ‘interests’ but in the very
structure of society.
• Key to the Marxist conception of society is
the idea that the economic variable is the
‘determinant in the last instance’.
• In the Marxist conception, society consists
of an economic base, or infrastructure, out
of which arises the superstructure – or
other institutions and social processes of
society (such as the legal, political,
familial, and religious spheres).
• For Marx, the relationship between the
base and superstructure is dialectical: the
superstructure arises out of the economic
base but once created acts back to
reproduce it.
• Given the position of dominance of one
class over another in the economic sphere,
the other spheres and processes in society
will be organized to serve the interests of
the dominant class.
• In other words, within the superstructure,
the kind of legal system, the form of the
family, the nature of education will operate
in accordance with the interests of the
dominant class.
• In a Marxist approach, because the
economic variable is viewed as primary, it
becomes impossible to study other
segments of society – like law – in
isolation from the economic
• Rather, law must be understood in relation
to the economic sphere.
• The Marxist approach also sees inequality,
conflict and power in structural terms, as
class inequality, class conflict, and class
domination.
• Accordingly, consensus is not a ‘natural’
condition: it has to be continually
manufactured or created.
• Marx’s own writings did not include a
coherent theory of the state, so that
became the task of later Marxist theorists.
• Generally speaking, these writers started
from the fundamental observation that the
state in a capitalist society broadly serves
the interest of the capitalist (ruling) class.
• From this similar starting point came two
different theories of the state:
• Instrumental Marxism
• Structural Marxism
• While studying the law-society
relationship, theorists used instrumental
and structuralism to address the class
character of law under capitalism
Instrumental Marxism
• Instrumental Marxism posits that the state
acts at the behest or command of the
capitalist class.
• This interpretation is based on the idea
that the processes of the superstructure
are determined by the economic base.
• As such, institutions within the state are
tools that can be manipulated by the
capitalist class as a whole.
• In essence, instrumentalist posited a
direct correlation between class power
(ownership of the means of production)
and state power.
• Within this perspective the instrumentalist
would argue that law itself is a weapon of
class rule.
• The focus was on the coercive nature of
law, whereby they say law and legal order
as a direct expression of the economic
interests of the ruling class – a means of
protecting property and consolidating
political power. Some writers even went
so far as to claim that capitalist class
member were immune from criminal
sanction (Quinney 1975, Chambliss 1975).
• By directing attention to the linkages
between class power and state power,
instrumental Marxists called attention to
the actions and behaviours of ruling-class
members.
• In particular, the legal definition of crime
came under close scrutiny, especially in
the context to which the criminal law
excluded a range of behaviours harmful
and threatening to members of society.
• This led to an examination of crimes of
the powerful, including price-fixing,
production of faulty consumer products,
environmental pollution, and governments
corruption (see Goff and Reasons (1978);
Snider (1978); Pearce (1976)).
• Instrumental Marxism was not without
its shortcomings
1. Viewing the state as an instrument or
tool of the ruling class does not allow for
systematic analysis of how actions and
strategies of various ruling-class groups
are limited by constraints inherent in the
structure of society.
2. To say the law is a weapon of the ruling
class implies not only that the ruling
class is a united whole, but also that it is
so powerful that it will be able to ensure
that the state will always legislate in its
favour.
3. Instrumental Marxism display an
insensitivity to the conditions and
processes that legitimate democratic
capitalist societies.
Structural Marxism
• By the late 1970’s, Marxist theorists were
moving away from the conspiratorial account of
the capitalist state.
• In rejecting the notion of the state as an
instrument or toll of the ruling class,
structural Marxists put forward the view
that institutions within the state provide a
means of reproducing class relations and
class domination under capitalism.
• Structural Marxists do not agree that the
state acts on the behest of the capitalist
class, but instead on behalf of capital
• The role of the state, in carrying out its
role as mediator and organizer, as
performing particular functions, which
were broadly subsumed under the
headings of accumulation and
legitimation.
• Accumulation includes activities in which
the state is involved, either actively or
passively, in aiding the process of capital
accumulation (or wealth generation). In
short, the state must try to create and
maintain the conditions under which
profitable accumulation or capital is
possible.
• Legitimate refers to state activities that
are designed to create and maintain
conditions of social harmony.
• “It must try to win the loyalty of
economically and socially oppressed
classes and strata of the population to its
programs and its policies it must attempt
to legitimate the social order” (O’Connor
1973:79).
• The relationship between accumulation
and legitimation are dialectical; nearly
every agency or institution within the state
is (often simultaneously) involved in both
activities.
• To carry out its role the state needs a
certain degree of autonomy, not from the
structural requirements of the economic
sphere, but from the direct manipulation,
of its activities by the dominant class.
• In this way the state is able to transcend
the parochial interests of particular
capitalist class members and thus ensure
the protection of the long term interest of
capitalism (Poulantzas 1975).
• The relative autonomy of the state can
therefore account for the presence of laws
that favour workers (i.e. minimum wage
laws). And those laws designed to control
the actions of capitalists (i.e. restrictions
on environmental pollution or anticombine legislation).
• The structural Marxist emphasis on the
role of the state as organizer and mediator
– framed in terms of the dialectical
interplay between the economic base and
political and legal superstructure – led to
more sophisticated analyses of law-making
than those offered by instrumental
Marxist.
• William Chambliss (1986) suggested that
the basic conflict between capital and
labour creates, in different historical
periods, particular conflicts and dilemmas
to which the state has to respond.
• One response is to create legislation.
According to Chambliss, however, the laws
that are created are not designed to
resolve the basic contradiction, but only
the conflicts and dilemmas that emerge
from it. Law is only a “symptom-solving
mechanism.”
• Far from resolving the basic problems in
the system, it creates the conditions for
the emergence of new conflicts and
dilemmas later on down the road. (see
Comack 1991, Smandych 1991)
• Whereas instrumental Marxist
concentrated on the coercive nature of
law, structuralists extended the analysis to
include an examination of the ideological
nature of law and legal order.
• In essence then, structural Marxist
suggest that law legitimizes the
dominance of one class over the other by
appealing to the very democratic
principles that are thought to guide
against such bias.
• Structuralist Marxist recognize the
existence of “class fractions” within the
dominant class. The state, as such, was
not simply an instrument or tool, but an
organizer.
• Because consent was not an automatic
condition, but had to be continually
constructed, structuralists focused
attention on the processes by which
hegemony was realized.
• The attention to the ideological role of law
enabled the structuralists to better
reconcile the class-based with the
existence of democratic ideals and
principles (like equality and justice) that
the legal order claims to uphold.
• Yet structured Marxism also had its
limitation.
1. While instrumentalism was criticized for its
overemphasis on capitalist class input into
and control over the state, it could be
argued that the structuralist account went
too far in the other direction: it is the
constraints and limitations of the structure
– not human agency – that determine the
direction of society.
2. In a similar vein, the concept of relative
autonomy has been criticized, in that the
theory does not convincingly explain the
specific factors that determine the states
degree of autonomy from economic
relations.
3. As it stands, the focus on the
accumulation and legitimation functions
of the state leads to a kind of circular
reasoning; any concessions made to
workers are indicative of the legitimation
function, while gains made by capitalists
are attributed to the state’s concern with
maintaining capital accumulation.
• The Marxist approach, then, is intensely
critical of the law’s claims to impartiality,
fairness, and objectivity.
• From the Marxist perspective the Official
Version of Law is a form of ideology; a
particular valve-laden position that has the
effect of legitimating a system of unequal
social positions.
• Marxist also call into question the
autonomy of law.
• The Marxist critique of the Official version
of Law stimulated debate over the
potential for law as an agent of social
transformation.
• Highlighting the contradictions and
inconsistencies – the inherent tensions –
built into the Official Version of Law offers
the possibility of developing a
“jurisprudence of insurgency” to
undermine the social relations of
capitalism (Brickey and Comack 1987).
• During the 1980’s Marxist theorizing on
law continued to be altered and
reformulated (see for example: Mondel
1986; Ratner and McMullen 1987;
Glasbeek 1989; Snider 1989).
• What was the noteworthy about much of
his work was that it framed the
fundamental question, or problematic, in
terms of class relations.
• By rooting inequality in the economic
sphere, and by defining power in terms of
relations between dominant and
subordinate classes, the Marxist
formulation went beyond the functionalist
and liberal-pluralist accounts in clarifying
the systemic nature of inequality and how
it is reproduced at the superstructural
level.
• In doing so, it effectively made other
dimensions of inequality – specifically
gender and race – into contingent
variables.
• This feature was not lost on many of the
Marxist analysts and as the 1980’s drew to
a close an increasing consensus developed
among those working in the tradition that
their fundamental question was in need of
re-working.
• The primary stimulus for the rethinking of
the Marxist approach came from the
challenge of the feminist movement.