Classical Theory and Law

Chapter 6- Classical Theory and Law

  • Cotterrell
  • If there was a new law that was fully ratified it doesn’t necessarily mean that it will reach the courts (issue with regard to it may never arise). Even if it does judges may not apply it by ruling it irrelevant or interpreting it removing its effect. Often the social effects of the law are unknown by judges and lawyers. This has provided scope for the social scientific study of the law.
  • Another justification for such study is that the law is too imp a social phenomenon. It is a skeleton of society; it provides an outline of the nature of a social system.
  • Just looking at the internal logic of law isn’t enough. Considerations of policy cannot be excluded from the analysis since the social purposes of law is referred to in the court and in interpretation
  • To say law should be studies empirically as a social phenomenon is one thing. But question is how should this be done. Diff kinds of social theory will portray law in diff ways. Law thus has diff social realities constructed from diff vantage points.
  • Actually describing and analyzing the social reality of law is the possibility of science. It remains only a possibility but is still imp. In the most general sense scientific method involves 2 elements:

o       A clear and explicit recognition that all perspectives on experience are necessarily partial and incomplete

o       The attempt to overcome the limitations of partial perspectives through systematic collection, analysis and interpretation of the empirical data of experience.

  • Law and sociology do have differences, such as the former being prescriptive and technical and the latter explanatory and descriptive, but both are concerned with the whole range of significant forms of social relationships. Law is about systematic control of social relations and institutions and sociology is the scientific enterprise that seeks systematic knowledge of them.
  • Both are concerned with norms, the nature of legitimate authority and the mechanisms of social control.
  • sociology of law seeks detailed knowledge of law in a wider social context approaching such matters systematically.
  • Classical theorists of Marx, Durkheim and Weber understood the analysis of social phenomena in a broad sense. They sought answers to questions about the nature and direction of social change, conditions of social order and the relationship b/w the individual and society. It doesn’t offer ‘finished’ knowledge but a continual broadening effort to explore the challenges presented by empirical data of social life.
  • Legal Positivism – problems arise when considering to study law as an empirical social phenomenon. Law consists of prescriptions- ‘ought’ propositions yet at the same time constitutes a social phenomenon which only ‘exists’ if the prescriptions of conduct actually have some effect on the way people think/behave. Law is thus both prescriptive norm and descriptive fact. Logically these 2 exclude each other. This is positivism.
  • positivism says that scientific knowledge comes from observation of the data of experience and not from speculation that ‘looks behind’ observed facts for ultimate causes. They observe what really is. Facts and values are rigidly separated.
  • Science should be value-free in 2 senses:

o       Should not make value judgments  about what it observes

o       Shouldn’t seek to inquire into the meaning or significance of the values held by those it observers

  • Limitations of positivism- to treat the data of law merely as legal rules may be a static representation of a dynamic phenomenon: it is actually continually changing.
  • What is justice or injustice, wisdom or judicial values is not seen as essential as long as the rules of law can be clearly ascertained. Only when ‘data of law’ is unclear (rules not clear) are ‘non-legal elements’ considered. Since they are, by definition, external to law they aren’t considered systematically but used selectively as ammunition in debates on legal interpretation.
  • It ignores the role of values in law and way in which law is established in interpretation
  • It assumes clarity and certainty in rules that isn’t apparent. It cant cope with the complex relationship b/w rules and discretionary powers of officials and cannot provide an adequate basis for understanding processes of legal change.
  • Sociological positivism v. Interpretative Sociology’
  • Positivist method also used in certain types of sociology. But it doesn’t represent a universal conception of the nature of sociological knowledge and the means of getting it.
  • Sociology positivism hasn’t had the success of legal positivism. Competing approaches have stressed the need for interpretative ‘understanding’ of social phenomenon in terms of the motivations of social actors
  • Social positivism can be seen in Durkheim: ‘treat social facts as things.’ So social phenomena should  be measured and analyzed in  the same manner as natural scientist would measure processes in labs. Some may be too intangible to do this but changes in indicators may help this.
  • Flaw: society isn’t a ‘thing’ external to the observer. Just as social facts can influence the attitudes of members of a society they can also be shaped by the interactions and beliefs of those in the same society. As a member of human society a social scientist is part of what he studies. Therefore concept of total objectivity is problematic.
  • Social science does have one adv methodologically- in social science the observer observes other human beings. Observer has chance to understand the motivations of the social actors being studied.
  • From this view sociology’s concern is to understand social phenomena in terms of the subj meaning of actors.
  • Hart says rules are to be understand in terms of their ‘internal aspect’ which is the subj meaning that rules have for those who understand concepts of legal obligation
  • Objective of sociology of law is to contribute to an understanding of the meaning and the conditions of justice in society.
  • Marx
  • Marxism, Law and Economy
  • 3 broad theoretical perspectives of Marxism can be distinguished (each having different implications for the analysis of law):

o       instrumentalism

o       structuralism

o       humanism

  • Instrumental Marxism- politics and culture are the instruments of ruling class. Law may purport to represent justice but this is an ideological disguise serving as a tool of r/c, advancing their interests and controlling w/c. this work rarely found in Marxist theoretical work. Is implicit in man empirical studies of social origins and position of political and legal elites.
  • Structural Marxism- social phenomena cant be seen straightforwardly as the outcome of human action or the interests of particular groups. Capitalism has dynamics that structure the actions of actors and institutions. The state and the law are structures that cant be understood separately from their place in the overall reproduction of capitalism. Law isn’t the tool of r/c, has ‘relative autonomy’. It functions to reproduce the conditions of existence of capitalism as  a system, not the particular interests of specific groups.
  • Humanist Marxism- found in Marx’s early writing. ‘Men make their own history, but not under the conditions of their own choosing.’ People have a degree of autonomy as historical agents, not just as bearers of structural forces. But are constrained by limits determined by their past and present circumstances. This not only gives scope for human autonomy but also for cultural values to have some independent force.
  • Materialist Conception of History
  • The space for these clashing interpretations is created by ambiguities in Marx’s own perspective. Can be seen when he tried to sum up the methodology of his own researches for Capital where he claimed that ‘relations of production’ that are ‘independent of the will constitute the economic structure of society, the real foundations, on which arises a legal and political superstructure, and to which correspond definite forms of social consciousness. The mode of production of material life conditions the general process of social and intellectual life. It is not the consciousness of people that determines their existence, but their social existence that determines their consciousness.’
  • This is presented as the essence of historical materialism that Marx thought of his contribution to social analysis. It rests on the contrast between economic base and political and ideological superstructure. The base is the mode of production,a type of economic system, which has specific forces (technology, materials) and relations of production (ways of organizing the labour process). Concrete societies correspond to a pure model of a particular mode of production. In mid C19th US was primarily capitalist but also had elements of slave and feudal modes of production, such as class struggle b/w capital and labour in capitalism.
  • The base/superstructure metaphor has led to many interpretations that underlie the conflicting 3 views.
  • Do those with economic power (r/c) completely control the superstructure in their interests (instrumentalism), does the superstructure have some autonomy to grow whilst ultimately being determined by the conditions of existence of the base (structuralism), do actors have real autonomy to develop diff strategies to find their own values, but constrained by their historical and material circumstances (humanism)
  • Marx’s own critique of law is found in Chap 10 of Capital where he provides an analysis of the Factory Acts in early C19th England. This critique has elements of all 3 views.
  • Marx’s Analysis of the Factory Acts
  • He argued that a distinctive feature of capitalism is the generalized production of commodities (goods intended primarily for exchange rather than immediate use). Marx accepts that labour was the basic source of the creation of value. In capitalism the worker produces more value than he is paid for, and it is capitalism that gets the surplus.
  • Unique feature of capitalism is the inherent pressure to maximize the exploitation built in to capitalist relations of production.