law and social theory
The take home exam will consist of a number of short answer/mini-essay
questions spanning the entire unit and resembling the ‘discussion questions’ set out in the weekly schedule. I will post the topics below. Pick 3 qustions and make a 500 word mini essays on each. use the required readings that I will post after the topics as a back ground knowledge when forming your argument. the readings will be provided in the topics posted in form of the references. each question will be 10% of the grade so dot bit around the bush and go straight into it from the introduction as you have very limited number of words to waste on obvious information and definitions. this paper is due at 4pm 9th November, please send it as soon as possible so that I can review the work after the editor has gone through it.
HERE GOES THE TOPICS:
1. Using the work of at least ONE social theorist, assess the impact of globalization on both domestic and international law and legal institutions.
2. “We still have not cut off the head of the king”. With specific reference to the law, explain what Foucault meant by this.
3. Using the work of at least TWO social theorists, explore the idea that the law has and indeed should have a normative dimension.
4. What did Bourdieu have to say about the legal profession?
5. How has the use of language or ‘trial talk’ been examined to uncover the patriarchal logic of sexual rationality in rape cases?
6. Using examples, discuss the notion that civilization and barbarism are two sides of the same coin.
7. Is Selznick’s ‘Jurisprudence and Social Policy’ approach to legal education likely to strengthen or undermine the law and legal profession?
8. Explain how monopoly capitalism could be compatible with democratic principles. Use the example of Weimar to illustrate your answer.
9. Explain what Marx and Engels mean when in The Communist Manifesto they said:
“Your very ideas are but the outgrowth of the conditions of your bourgeois production and bourgeois property, your jurisprudence is but the will of your class made into a law for all, a will, whose essential character and direction are determined by the economical conditions of your class”.
10. Examine the relationship between Weber’s and Habermas’s approach to law.
11. Discuss the contemporary relevance and/or irrelevance of Durkheim’s sociology of law.
readings based in topics:
Week 4 – Closure and openness in the legal system: Niklas Luhmann
Niklas Luhmann’s work has also become a central reference point for many social scientific analyses of the legal system. This week we will begin by examining his approach to the question of law’s closure in relation to the rest of society. He addresses the idea that law might possess greater or lesser degrees of autonomy or closure in relation to the extra-legal world by focusing on the character of law as a system of communication. He sees law as an ‘autopoietic’ or self-reproducing system of meaning and communication rather than as a set of institutional forms, structures or practices, so we will explore exactly how this works and attempt to apply the analysis to particular case studies.
Niklas Luhmann, ‘Operational closure and structural coupling: the differentiation of the legal system’ (1992) 13 Cardozo Law Review 1419.
Klaus A. Ziegert, ‘The thick description of law: an introduction to Niklas Luhmann’s theory’, B&T Chapter 3 or Michael King ‘The radical sociology of Niklas Luhmann’L&ST chapter 3.
Week 5 – The force of the legal field: Pierre Bourdieu
The French sociologist Pierre Bourdieu works with a completely different vocabulary and conceptual apparatus, which produces a distinctive perspective on legal institutions and practice. Rather than dividing society into relatively autonomous ‘systems’ and ‘sub-systems’, he sees social life as made up of interdependent and competing fields comprising of a variety of ‘players’ or ‘actors’ pursuing their own particular strategies, drawing on differing degrees and types of ‘capital’, all of which interact which each other in relatively volatile ways. This week we will examine the way in which Bourdieu places more emphasis on the practices of legal actors and their material and institutional constitution, which draws our attention to different aspects of law, and we may discuss some examples of how current developments in international law can be analysed from this perspective.
Pierre Bourdieu, ‘The force of law: towards a sociology of the juridical field’ (1987) 38 (5) Hastings Law Journal 814.
Mikael R. Madsen & Yves Dezalay, ‘The power of the legal field’, B&T Chapter 10 or Mikael R. Madsen & Yves Dezalay, ‘Pierre Bourdieu’s sociology of law: From the genesis of the state to the globalization of law’, L&ST Chapter 6.
Week 6 – The power of language: ethnomethodology & symbolic interactionism
Bourdieu’s work draws our attention to law as a realm of symbolic contestation and the importance of language in constituting its power relations, and it is useful to elaborate on this theme by examining an older set of traditions in social theory, symbolic interactionism and ethnomethodology, to see how they have been applying to legal practices and institutions. This week we will discuss both these strands of social theory, the kinds of research into legal practice they have generated, as well as focusing on the application of these perspectives in two case studies: a prominent rape trial and the work of judges.
Gregory M. Matoesian, ‘Language, law and society: policy implications of the Kennedy Smith rape trial’ (1995) 29 Law & Society Review 669.
Max Travers, ‘Symbolic interactionism and law’, B&T Chapter 11, or Max Travers, ‘Interpretive sociology and the law’, L&ST Chapter 9.
Week 7 – Processes of civilization and decivilization: Norbert Elias
Another body of social theory, which would usefully inform a theoretical analysis of the current state of law, is the work of the German sociologist Norbert Elias on state formation and its relationship to the structuring of subjectivity, and on what he referred to as processes of civilization and decivilization. Many of the political, social and economic concerns seen as amenable to a particularly legal ‘solution’ relate to the dominant concepts of how human beings ought to behave, what the principles governing interactions between human individuals and institutions are, and these are in turn related to our understanding and experience of what it means to be ‘civilized’, with the concept of ‘civilization’ being a reference point for much legal discourse. This week we will look at what Elias had to say about civilization and decivilization, how his analysis can inform our understanding of law, as well as some examples of the application of his analysis to the study of crime and crime control, e.g. anti-social behaviour.
Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations, Revised Edition (Oxford: Blackwell, 2000), 363.
Robert van Krieken, ‘Governance, law and civilisation’ in S. Kenny, R. van Krieken, J. Loza and M. Muetzelfeldt (eds), Civilising the State: Civil Society, Policy and State Transformation (Geelong: Centre for Citizenship & Human Rights, Deakin University, 2000) 239.
Week 8 – Moral community I: Phillip Selznick
Philip Selznick builds on the work of Weber to ask another set of questions arising from that analysis, concerning the essentially social character of the pursuit of individual rights and freedoms. In the process, Selznick pursues an integration of normative and ethical concerns with the pursuit of science, proposing a model of ‘responsive law’, which might conceivably achieve this integration. As such, it constitutes an important specifically sociological engagement with the normative concerns of law, which provides an alternative perspective to that offered by more philosophical approaches. This week we will examine Selznick’s arguments for the linkage of ethical and scientific concerns, his arguments for ‘responsive law’, whether his work suggests a transcendence of the dichotomy between formal and substantive justice, as well as looking at a case study dealing with the application of Selznick’s ideas to the work of judges.
Philip Selznick (1980) ‘Jurisprudence and social policy: aspirations and perspectives’ 1980 California Law Review 68(2) 206.
Martin Krygier (2005) ‘Humanist Social Science and Human Rights’, in Sajo, A (ed) Global Justice and the Bulwarks of Localism, Koninklijke Brill NV, The Nethelands, https://www.academia.edu/7717573/Human_Rights_and_Humanist_Social_Science
Week 9 – Capitalism, democracy & the rule of law: the Frankfurt School
Habermas’s work was preceded by two earlier Frankfurt School theorists, Franz
L. Neumann and Otto Kirchheimer, whose analysis of the Weimar Republic and the emergence of Nazism in Germany have important implications for the critical analysis of liberalism and capitalism. This week we will look at another approach to social which
draws on Marxism, but focuses more directly on the events of the 20th century which have so decisively shaped the world we live in today, engaging with questions more familiar to legal theorists, including the concepts of the rule of law and democracy. We will discuss Neumann and Kirchheimer’s more positive assessment of institutions of liberal democracy, such as the rule of law, despite the problems characterizing their operation under capitalism, and the connections between their analysis of Germany in the 1930s and our understanding of the current dynamics of globalization.
Franz L. Neumann, ‘The change in the function of law in modern society’ in The Democratic and the Authoritarian State (New York: Free Press, 1957).
Otto Kirchheimer, ‘Legality and legitimacy’ in W. E. Scheuerman (ed.) The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996) 44.
Roger Cotterrell, ‘Social foundations of the rule of law: Franz Neumann and Otto Kirchheimer’ in Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) 160. (e-book: access via library)
Week 10 – Capitalism: Karl Marx
The work of theorists like Habermas, Neumann and Kirchheimer, and many others, is rooted in that of Karl Marx and his critique of the underlying mechanisms of capitalist political economies. This week we will examine Marx’s analysis of the connections between the commodity form, money and the accumulation of capital on the one hand, and the emergence of modern conceptions of rights, law and the state on the other. We’ll address questions such as the (im)possibility of ‘freedom of contract’ within fundamentally unequal economic relations, the relationship between the state and capital accumulation, and the possibility of developing a more differentiated Marxist approach to law which makes distinctions between its various component parts: corporations, constitutional, family, labour, property, etc. We might also discuss a critical debate dealing with how the Marxist approach to law was operationalised under communism, and what that example means for our understanding of the rule of law.
Paul Phillips, Marx and Engels on Law and Laws (Oxford: Martin Robertson, 1980) 40-109.
Robert Fine, ‘Marxism and the social theory of law’, B&T Chapter 5 or L&ST Chapter 5.
Week 11 – Rationalisation: Max Weber
Max Weber devoted much detailed attention to a sociological analysis of law, not least because he saw the expansion of law as a distinct social and political realm as a core element of a specifically ‘modern’ society. This week we will examine Weber’s analysis of the emergence of formal, ‘legal’ rationality and bureaucracy as an underlying principle of social and political organisation, the effects this has on the fabric of social relations, his account of differing forms of ‘authority’, and the implications of his analysis for more contemporary concerns with the relationship between individual freedom and increasingly globalized forms of interdependency and governance.
Max Weber, Economy and Society (Berkeley: University of California Press, 1978) 753-84; 880-900.
Roger Cotterrell, ‘Legality and Political Legitimacy in the Sociology of Max Weber’ in Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) 134.
• Explain Weber’s distinctions between traditional, charismatic and rational-legal authority; does it make sense of how contemporary Australian political life operates?
• Can one use Weber’s analysis of the ‘iron cage of modernity’, the fundamental contradiction between the efficiency and power of formal rationality and its evacuation of content and meaning, to improve our understanding of contemporary socio-legal questions, e.g. the tension between formal and substantive justice?
• What is the relationship between Weber’s and Habermas’s approaches to law?
• Weber argued that legal rules, institutions and practices operate to legitimate the exercise of political power (authority and domination); to what extent do you think this explains the operation of legal systems today, and what distinctions should we make between the application of the argument to different jurisdictions (e.g. Australia and China)?
Week 12 – Moral community II: Emile Durkheim
It is arguable that all of the themes found in social theoretical analyses of law relate in one way or another to the core question posed by Durkheim: how do modern societies retain social and moral coherence within the ever-growing multiplicity of cultural and normative positions generated by ever-increasing social, economic and political differentiation, and what is the specific role of law in addressing this problem? This week we will examine Durkheim’s own approach to this question, his account of the increasing division of labour, the transition from mechanical to organic solidarity together with developments in the associated forms of sanction and punishment, the relationship between internalised self-discipline and externally imposed social regulation, as well as the symbolic dimensions of legal processes and their role in social order.
Emile Durkheim, ‘Two Laws of Penal Evolution ’ (1973) 2(3) Economy & Society 285; (1969) 38 University of Cincinnati Law Review 32.
Joseph E. Kennedy, ‘Monstrous offenders and the search for solidarity through modern punishment’ (2000) 51 (5) Hastings Law Journal 829.
• How does Durkheim think social order is maintained in the face of divergent cultural and ethical orientations?
• What symbolic functions does the punishment of crime have? Would you agree that crime (and its punishment) can be seen as part of the normal functioning of society, rather than as in indication of its breakdown?
• Outline Durkheim’s understanding of the main developmental trajectory of modern law and society, and explain the extent to which this perception of the history of legal institutions might be applicable to some contemporary socio-legal developments.
• Do you agree that the forms taken by legal institutions and ideas are a kind of ‘index’ to the character of the society within which they are located? Can you think of current examples which would usefully illustrate this argument?