Download Law, Society and Power

Law, Society and Power
2006/2007
Themes
It is commonly agreed that the three terms of this course – law, society, and
power – are interrelated. But the agreement stops about there. What are the relationships?
Here are a few that have been argued in the history of legal, social, and political thought:
 Law is often seen as an instrument of power, as a gun might be an instrument
of a gunman. If you ask, who is holding the gun, answers differ. For Marxists
it is the ruling class. For Hobbesians it is the Sovereign legal authority, on
behalf of us all. For feminists it is an instrument of patriarchy that oppresses
women. An older tradition had it that law was the instrument of divinely
appointed authorities, usually monarchs. Peoples were the subjects of law, not
in any way its source or even necessarily its beneficiaries.
 Others see law as an indispensable restraint on power, without which
despotism beckons. Thus theorists of the rule of law or the Rechtsstaat or
rządy prawa see the restraint of power by legal means as the signal service
law can do for us. Power can be exercised in all sorts of ways, better that it be
exercised under the restraints of the rule of law.
 More ambitiously, law is also called upon to do justice, as in the figure on so
many courts: of a woman blindfolded to particularity, and so unbiased, sword
in one hand and the scales of justice in the other. Without law, so it is
believed, power would be unjust.
 And where is society in all this? Common views have it as the mere object of
power and law. Law is seen as a top-down imposition, the command of states
to subjects, who are obliged to obey. Law is up there with władza; the rest of
us, the społeczeństwo, are down here. Marxists, on the other hand, also saw
law as top down, but they thought that law and state served some particular
social interests at the expense of others; feminists agree on that, but have
varied the interests allegedly involved.
 According to Durkheim, on the other hand, law is a crucial source of social
solidarity, like morals, and it serves us all. Its sources are social, so far from
coming to us from the top down, it arises from society. Eugen Ehrlich, a
leading (but not much known) founder of legal sociology agreed. For him,
‘the center of gravity of legal development lies not in legislation, nor in
juristic science, nor in judicial decision, but in society itself.’
 Wherever it is thought to come from, people divide on whether law is good or
bad for us, and again in what ways it might be good or bad.
 There are also large questions about how powerful law is and can be. Lawyers
often seem to imagine that it is enough to deal with a problem by passing a
law about it. But they are often disappointed, in ways that a social theory of
law might enlighten them. For one important thing to try to understand about
law is that it is one institutionalized force in society, but there are many others
which often compete with it, and can often win the competition.
This course will explore the relationships between these elements, and seek to
further our understanding of the complexity and variety of their interactions. It will do it
by way of an introduction to 1. some of the great traditions of thinking about law, society
and power, 2. contemporary sociological discussions of these relationships, 3. some of
the central practical, theoretical, empirical and normative issues that surround the
interactions of law, society and power in the contemporary world; 4. contemporary
accounts of large-scale shifts in the character of legal orders and their social and political
environments. The course will seek to encourage us to see the complex and varied
relations that exist in modern societies between law, society and power. More complex
and varied than is at first apparent.
A distinctive aspect of the course is that it will seek to blend empirical and
normative concerns, that is, ask not merely what the law does and for whom and to
whom, but what it does well and what it should do. Though most of contemporary
sociology is empirical, and much of contemporary political theory is normative, it is a
conviction underlying this course that our understanding benefits from a systematic
mixing of the two.
The concerns of the course are all general and the course will discuss examples
from many parts of the world (even Australia!), but there will also be an attempt to relate
certain parts of the course discussion to issues of special relevance to the post-communist
world. In particular, what have been and what might be the interrelationships between
law society and power in this region? What is involved in using law for purposes
different from those it has hitherto served? Can it be done?
Lawyers and philosophers have written about what they think that might involve.
But deciding what laws to pass is one, lawyers’, problem. A larger sociological problem,
however, is discovering how much law might actually count in a society. And more still,
count for good. And law only counts if it counts in people’s lives, that is in society. This
question, then – what makes law count socially and what makes it count for good? represents a key case study where many of the theories both empirical and normative, of
law, power and society, and law and power in society can be tested and appraised.
The course has ten sessions. The sessions will be led by me, by way of lecture and
encouragement of student discussion. Course readings will be available on line, and
students will be expected to read the relevant materials for each session and be prepared
to participate in discussion of them. The reading for some classes is more than students
will be expected to read for that class, but is included both for further reference and to
stimulate discussion among students who will be assigned particular readings from
among those assigned for the class.
SYLLABUS
Law is both an institution of central importance in modern societies and a focus of
normative demands. On the one hand, there are numerous empirical and theoretical
questions it raises about how it relates to other social institutions, how it affects them and
they it, what makes it change, what it facilitates what it blocks. There are also normative
questions the practice of law immediately calls forth. It is, or should be we commonly
think, associated with justice, and in many languages the association is built into the
word: Recht, droit, diritto, prawo. Sociology of law is clearly relevant to finding what
actually are the interrelations of law and other domains, practices and institutions in
society. Arguably it is equally relevant to assessing what such interrelations should be.
1.
Central questions about law, society, and power.
In this first class, we will introduce ourselves, and tease out some of the central questions
that need to be asked about law, society and power. A few of them are listed below, and
students are asked to think about how to answer them, and also to think about what other
questions need to be asked if this three-level scheme of connections and distinctions –
law, society, power – is to be explored.
Questions to ponder:
A. LAW
What is law?
What are its most distinctive elements?
Where do you find it?
What are the most important things it does in society?
Who/what does it do these things for?
Who/what does it do these things to?
What is its relationship to justice?
B. SOCIETY
What is society?
What are its most important law-related components?
What does it get from law?
What are some of the fundamental ways in which societies differ from each other? In
particular, what are some of the most significant differences between modern and premodern societies; capitalist and communist societies; communist and post-communist
societies?
How do these differences affect the role(s) that law plays? Does law play the same role(s)
in each of these societies or is it called upon to do different things in different types of
society?
C. POWER
What is it?
Who has it?
How is it exercised?
What is the relationship between law and the exercise of power?
2. Law and State Power: Hobbes; Foucault
Lawyers, legal philosophers and social and political theorists, not to mention ordinary
folk, typically consider links between law and the state to be intimate, unseverable, and
uncontroversial. Lively questions remain about the point of law, whether these are
descriptive questions – what does law do? or normative ones – what should it do? but
rarely about its proper location or source. These, it is assumed, are in institutionalized,
centralized, and legally co-ordinated offices of state. This class will examine the sources
of this apparently obvious, but deeply arguable, identification, exemplified particularly in
the writings of Thomas Hobbes. It will also explore Michel Foucault’s challenge to
identifying power with law and state.
Reading:
Thomas Hobbes, Leviathan, extracts from chapters 13, 17, 18, and 26
Extracts from Michel Foucault, Power/Knowledge
extracts from Michel Foucault, Discipline and Punish
3. Law as a servant of Social Power: Marxism and Feminism.
On many views, while law is associated with the state, it serves interests behind the state
that dominate it. Most famously (and influentially in this part of the world) is the ‘vulgar
Marxist’ view that law is just an instrument of class power. More recently that view has
been challenged by feminist writers, perhaps most prominently Catharine MacKinnon,
that law is a servant, but not of class domination, rather of male domination. Many other
views share this basic conception of what law does, even if the groups said to benefit
from law are rearranged, to include race and other sources of social division
.
Karl Marx, preface to A Contribution to the Critique of Political Economy
Ralf Dahrendorf, Class and Class Conflict in Industrial Society
Catharine A. MacKinnon, ‘Law in the Everyday Life of Women’, in Women’s Lives.
Men’s Laws
4. Law as a source of social solidarity: Emile Durkheim
A quite different view of law sees it as emanating from society itself and as a whole,
rather than from particular groups. This is a ‘bottom-up’ view rather than Hobbes’s topdown account. Its most influential representative is the French sociologist, Emile
Durkheim.
Emile Durkheim, The Rules of Sociological Method
Emile Durkheim, The Division of Labor in Society
5. Law in Society: precursors of the law and society movement
The major contribution of modern law and society studies to the discussion of where the
legal action is might be called cartographic. They have cast doubt on the common
assumption that law and state need always be thought of as fused, like Siamese twins, as
in the Communist theoretical couplet, ‘theory of state and law’. Attempts have been
made, for at least a century, to de-couple the apparently obvious and necessary
connections between state and law and to produce accounts of the nature, place, and
functions of law in society, from which the state is not eliminated, but de-centered. Not
everyone believes this detachment of law and state is a good idea, but it is a
paradigmatically sociological idea.
Reading:
Reza Banakar, ‘Sociological Jurisprudence’ in Reza Banakar and Max Travers, eds., An
Introduction to Law and Social Theory, 33-50.
Klaus A. Ziegert, ‘The Sociology behind Eugen Ehrlich’s Sociology of Law’, in (1979) 7
International Journal of the Sociology of Law, 225-73
David Nelken, ‘Law in action or living law? Back to the beginning in sociology of law’
(1984) 4 Legal Studies 157-174
6. State, Law and Society. What’s the Interaction?
Neither ‘legal centralists’, who find law only in the state, nor ‘legal pluralists’, who see it
everywhere but the state, have a monopoly of wisdom. There is clearly a special
association between law and state, and still a lot that is most important about law is
transacted elsewhere. It has been the work of legal sociologists, many of them deriving
from anthropology, to fill in some of the gaps and connections between state and society
in an understanding of law.
Reading:
Sally Falk Moore, ‘Law and Social Change: the semi-autonomous social field as an
appropriate subject of study’ in Law as Process. An Anthropological Approach,
Routledge & Kegan Paul, London, 1978, 54-81.
Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Law’
(1981) 19 Journal of Legal Pluralism and Unofficial Law, 1-47
7. Law as Restraint on Power. The Rule of Law
One of the oldest overarching ideals for law is ‘the rule of law’, not the same as but
similar to the Rechtsstaat, etat de droit, etc. In the hands of lawyers and legal
philosophers, a lot has been made of this ideal, but what it is understood to be, and what
it is understood to be worth, are both matters of great controversy. This class examines
the ideal, and introduces some of the controversy.
Reading:
Lon L. Fuller, The Morality of Law, Yale University Press, 1961, chapter 2.
Blandine Kriegel, The State and the Rule of Law, Princeton University Press, 1995, 3-10,
Joseph Raz, ‘The Rule of Law and its Virtue’ in The Authority of Law Oxford UP, 1979,
210-29.
8. Society and the Rule of Law
Discussion of the rule of law is commonly the province of lawyers and philosophers of
law. Rarely have legal sociologists explored it. But quite obviously if law is to rule it must
count in society, and if it is to rule well it must count for good. But what are the
conditions for such good things? Lawyers and philosophers have little to tell us on these
matters, because all they speak about is the character of the official law. If no one is
listening, however, it may not matter too much what the law is saying. So what makes
them listen? The answer to such questions can only come from sociological investigations
yet to be done.
Reading:
Antal Örkény and Kim Scheppele, ‘Rules of Law: the Complexity of Legality in
Hungary’ in Martin Krygier, Adam Czarnota (eds.) The Rule of Law after
Communism, Ashgate/Dartmouth, Aldershot, 55-76.
Martin Krygier, ‘Teleology, Sociology, and the Rule of Law’
9. Law: Power or Constraint? Modern Controversies
According to many of its advocates, the rule of law is a great, some say universal good.
Some critics deny that it is a great good, while others deny that it is good at all. Marxists
denied both, Michel Foucault denied that it added up to much, and many feminists have
considered that whatever good it might do for men was not shared with women, and that
this was no accident..
Reading:
E. P. Thompson, Whigs and Hunters, Penguin, Harmondsworth, 1975, 258-79.
Morton Horwitz, ‘The Rule of Law: an unqualified human good?’ (1977) 86 Yale Law
Journal, 561ff.
Philip Selznick, ‘Culture and the Rule of Law’, in Martin Krygier and Adam Czarnota,
eds., Law after Communism, Ashgate, Aldershot, 1999, 21-38.
10. Communism, Post-Communism; Law and the Rule of Law
Communism represented one of the most comprehensive and radical challenges to the
rule of law, both in theory and practice. Post-communist states are, at least in their press
releases and commitments to the European Union, dedicated to achieving it. But doing so
is no small matter, in large part because the distance between legal decrees and socially
significant changes in the roles law plays in society are substantial. What accounts for
this distance? What occupies the terrain between the one and the other?
Reading:
Denis Galligan, ‘Legal Failure: Law and Social Norms in Post-Communist Europe’, in
Galligan and Kurkchiyan, eds., Law and Informal Practices. The Post-Communist
Experience, Oxford University Press, 2003, 1-24
Marina Kurkchiyan, ‘The Illegitimacy of Law in Post-Communist Societies’, in Galligan
and Kurkchiyan, eds., Law and Informal Practices. The Post-Communist Experience,
Oxford University Press, 2003, 25-46.
K. Hendley, S. Holmes, A. Åslund A. Sajo K. Pistor, ‘Demand for Law’, in (1999) 8, 4
East European Constitutional Review 88-108.
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Instructor: Professor Martin Krygier, Law School, University of New South Wales,
Australia.
Assessment:
Assessment will be by way of one term essay (ca. 3000 words; 70%). In addition students
will write reading summaries of at least one of the readings for each but the first class,
and be prepared to discuss what they have read in class (summaries should not be longer
than 1 standard page, single-space 12 font maximum). Summaries and class participation
will be worth up to 30% of the assessment in this subject.
Academic objectives: The principal aims of this course are to:
1. Furnish students with an awareness of some of the central and continuing
traditions of thought about law/society/power interactions;
2. Enable them to think both within the paradigms of such traditions, as well as
critically about them;
3. Encourage them to step beyond narrow disciplinary boundaries to take in the
variety of sources that focus on common problems, among them from sociology,
law, history, political science and philosophy;
4. Focus the general themes on the course on contrasts between characterizations of
law that emphasize its role as the servant of power, and those that see it as a force
that constrains it;
5. Focus them also on those who see society as an inert recipient of law and those
that emphasize it as an active source of law;
6. Examine the ways these different conceptions play out in the context of
communist and post-communist societies;
7. Acquaint students with major shifts and changes in the character of law and its
social and political environment in the West and in the world.
Learning outcomes: By the end of this course, students should be able to:
1. identify the sociological, political and legal assumptions underlying contemporary
writings about law, society and power;
2. evaluate the strengths and weaknesses of different perspectives on these matters;
3. participate in discourses on these matters versed in empirical, theoretical and
normative material relevant to them;
4. apply what they have learnt to their own societies and legal orders.