Law and Social Theory
Order Description
Please choose ONE question from the 9 questions I have provided below to answer. Whatever you think you will do the best in and have the most knowledge on is fine. I have also provided an outline of what we did for each week to help you in answering whatever question you choose.
Research essay questions:
Research and write a 2000 word research paper on ONE of the following questions.
The research paper is worth 50% of your final mark in Law and Social Theory. The research essay is a vehicle for you to undertake independent research and to develop the skills of critical analysis, the development of an argument and written communication. In some cases you might also be required to use case study examples.
Questions:
1. Drawing on the work of more than one social theorist, show how processes of globalization might transform traditional conceptions of law.
2. Using the example of the ‘surveillance society’ or any other example you care to choose, assess the contemporary relevance of Foucault’s approach to law.
3. Critically evaluate Habermas’ contribution to the study of law and social theory. How can it be applied to contemporary society?
4. Compare and contrast Luhmann and Bourdieu’s approach to the operation of law.
5. Show how symbolic interactionism and/or ethnomethodology have been used to examine the workings of legal institutions.
6. What is the relevance of the theories of Elias to the Stolen Generations and
Indigenous people’s struggle for land rights in Australia or indeed any other example you might wish to examine?
7. According to Selznick, what’s wrong with traditional legal education? How does he propose the situation might be rectified? Do you agree?
8. Discuss Neumann and Kirchheimer’s analysis of the institutions of liberal democracy, such as the state and the rule of law, and show how they relate to individual freedom.
9. Select two of the following classical sociologists: Marx, Weber, Durkheim.
Outline their approaches to a social theory of law and discuss some of the similarities and differences between them.
What we did each week and the readings required for that week-
Week 2 – Power, discipline and government: Michel Foucault
The social theorists most commonly referred to in current legal research include
Foucault, Habermas and Luhmann, so we will begin by looking at the work of
Foucault. In a sense it is remarkable that his ideas have been taken up to the
extent that they have in legal studies, since he wrote very little directly about
law. The implications of his work for the study of law emerge more from his
more general analysis of the operation of power and knowledge, both central to
legal institutions. This week we will examine his approach to these two
questions, as well as his analysis of modernity as a ‘disciplinary society’, the
concept of ‘governing through freedom’, and we will look at a case study, which
attempts to draw on Foucault’s work to explain a particular example of
contemporary mechanisms of governance.
Reading:
• Gary Wickham, ‘Foucault and law’, B&T Chapter 13.
• Michel Foucault, ‘Two lectures’ (Lecture Two) Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (Brighton: Harvester, 1980) 92.
• Robert van Krieken, ‘Legal informalism, power and liberal governance’ (2001) 10 (1) Social & Legal Studies 5.
Week 3 – Between facts and norms: Jürgen Habermas
Jürgen Habermas provides a completely different conceptual apparatus for a
social theoretical analysis to law, and this week we will examine some of its
core elements. He understood modern society, for example, as characterised
by a distinction between two spheres or realms: the social ‘system’ and the
‘lifeworld’. The concept of the ‘system’ refers to mechanisms of abstraction and
formalization, the demands arising from the need to coordinate human action.
The lifeworld refers to something more familiar, the world of cultural production,
communication, social solidarity, community and identity. The general line of
development which Habermas sees as characterizing the modern world is the
increasing ‘colonization’ of the lifeworld by monetarisation and
bureaucratisation. Part of this process is a growing ‘juridification’ of social
institutions and social interaction, in which legal norms and ideas come to
dominate other sources of ethical and conceptual orientation. We will also
examine his analysis of the public sphere, the importance of rational public
discourse, and the role which law can play in mediating the relationship
between system and lifeworld, rather than merely facilitating the colonization of
the lifeworld through juridification. We will also explore the idea that shows like
the Jerry Springer show function as a contemporary form of the public sphere.
Reading:
• Bo Carlsson, ‘Jurgen Habermas and the sociology of law’ B&T Chapter 4.
• Jürgen Habermas, ‘Paradigms of Law’ (1996) 17 Cardozo Law Review 771.
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.
Reading:
• Klaus A. Ziegert, ‘The thick description of law: an introduction to Niklas Luhmann’s theory’, B&T Chapter 3.
• Niklas Luhmann, ‘Operational closure and structural coupling: the differentiation
of the legal system’ (1992) 13 Cardozo Law Review 1419.
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.
Reading:
• Mikael R. Madsen & Yves Dezalay, ‘The power of the legal field’, B&T Chapter 10.
• Pierre Bourdieu, ‘The force of law: towards a sociology of the juridical field’ (1987) 38 (5) Hastings Law Journal 814.
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.
Reading:
• Max Travers, ‘Symbolic interactionism and law’, B&T Chapter 11.
• Robert Dingwall, ‘Ethnomethodology and law’, B&T Chapter 12.
• Gregory M. Matoesian, ‘Language, law and society: policy implications of the Kennedy Smith rape trial’ (1995) 29 Law & Society Review 669.
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.
Reading:
• 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.
Reading:
• Philip Selznick (1980) ‘Jurisprudence and social policy: aspirations and perspectives’ 1980 California Law Review 68(2) 206.
• Martin Krygier (2003) ‘Humanist Social Science and Human Rights’, paper delivered at the Universalism and Local Knowledge in Human Rights Conference, Woodrow Wilson School, Princeton University, 24-25 October, 2003.
Week 9 – 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.
Reading:
• Robert Fine, ‘Marxism and the social theory of law’, B&T Chapter 5.
• Paul Phillips, Marx and Engels on Law and Laws (Oxford: Martin Robertson, 1980) 40-109.
Week 10 – 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.
Reading:
• 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.
Week 11 – 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.
Reading:
• Emile Durkheim, ‘Two Laws of Penal Evolution [1900]’ (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.
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