Law and society
So far we have been preoccupied with normative legal theory, and its endeavours to explain the concept of law, as it were, from within.
That is to say, normative legal theory concentrates on legal doctrine and the relations between rules, concepts, principles, and other constructs employed by courts and lawyers engaged in the actual practice of the law. But there is another approach to legal analysis that attempts to understand the nature of these phenomena by reference to the social conditions in which they function. This sociological approach has exercised a considerable influence, often unacknowledged, on the philosophy of law. For example, Hart’s insistence that officials accept the rule of recognition ‘from the internal point of view’ and his claim that there should be a ‘critical reflective attitude’ to certain patterns of behaviour as a common standard echo Max Weber’s concept of internal legitimation.
A sociological account of law normally rests on three closely related claims: that law cannot be understood except as a ‘social phenomenon’, that an analysis of legal concepts provides only a partial explanation of ‘law in action’, and that law is merely one form of social control.
Though the genesis of sociological jurisprudence or the sociology of law may be traced back to the trail-blazing writings of Roscoe Pound and Eugen Ehrlich, this chapter focuses on the two giants of social theory-Émile Durkheim and Max Weber – whose impact on jurisprudence has been most profound. I shall also have something to say about the impact of Karl Marx on thinking about law and the legal system, as well as about two leading social theorists, Jürgen Habermas and Michel Foucault, whose writings continue to exert a considerable influence in certain quarters of contemporary legal theory.
Among the central preoccupations of Durkheim (1859–1917) is the question of what holds societies together. Why do they not drift apart? His answer points to the crucial role of law in promoting and maintaining this social cohesion. He shows how, as society advances from religion to secularism, and from collectivism to individualism, law becomes concerned less with punishment than compensation. But punishment performs a significant role in expressing the collective moral attitudes by which social solidarity is preserved. He distinguishes between what he calls mechanical solidarity and organic solidarity. The former exists in simple, homogeneous societies which have a uniformity of values and lack any significant division of labour. These uncomplicated communities tend to be collective in nature; there is very little individualism. In advanced societies, however, where there is division of labour, a high degree of interdependence exists. There is substantial differentiation, and collectivism is replaced by individualism. These forms of social solidarity are, he argues, reflected in the law: classify the different types of law and you will find the different types of social solidarity to which it corresponds.
Crime, according to Durkheim, is a perfectly normal aspect of social life. Moreover, he provocatively suggests, it is an integral part of all healthy societies. This is because crime is closely connected to the social values expressed in the ‘collective conscience’: an act becomes criminal when it offends deeply held aspects of this collective conscience. An action does not shock the common conscience because it is criminal, rather it is criminal because it shocks the common conscience.
Punishment is an essential element of his conception of crime: the state reinforces the collective conscience by punishing those who offend against the state itself. He defines punishment as ‘a passionate reaction of graduated intensity that society exercises through the medium of a body acting upon those of its members who have violated certain rules of conduct’.
He shows also how punishment as a form of social control is more intense in less developed societies. As societies progress, the form of punishment becomes less violent and less harsh. But because punishment results from crime, he identifies an important correlation between the evolution of crime and the forms of social solidarity.
The German sociologist Max Weber (1864–1920) trained as lawyer, and he assigns to the law a central role in his general sociological theory. Weber’s classification of the types of law is founded on the different kinds of legal thought, and ‘rationality’ is the key. On this basis, he distinguishes between ‘formal’ systems and ‘substantive’ systems. The crux of this distinction is the extent to which the system is ‘internally self-sufficient’, by which he means that the rules and procedures required for decision-making are accessible within the system.
His second critical distinction is between ‘rational’ and ‘irrational’: these terms describe the manner in which the materials (rules, procedures) are applied in the system. Thus the highest stage of rationality is reached where there is an integration of all analytically derived legal propositions in such a way that they constitute a logically clear, internally consistent, and, at least in theory, gapless system of rules, under which, it is implied, all conceivable fact situations must be capable of being logically subsumed.
Two principal, and related, elements of Weber’s complex theory will be considered briefly here: his concern to explain the development of capitalism in Western societies and his notion of legitimate domination.
In respect of the first problem, he attempts to show that law is affected only indirectly by economic circumstances. He conceives of law as being ‘relatively autonomous’, claiming that ‘generally it appears . . . that the development of the legal structure has by no means been predominantly determined by economic factors’. For Weber, law is fundamentally related to, but not determined by, economic factors. Rational economic conduct (‘profit-making activity’ and ‘budgetary management’) is at the heart of the capitalist system; this rationalism is facilitated by the certainty and predictability of logically formal rational law. The presence of this type of law assists, but does not cause, the advance of capitalism.
Weber regards formally rational law as one of the preconditions of capitalism because it provides the necessary certainty and predictability that is essential if entrepreneurs are to pursue their profit-making enterprises. The achievement of this formal rationality required, in Weber’s view, the systematization of the legal order, a systematization which he found remarkably absent from the English law.
How, then, could he explain the emergence of capitalism in England? This question has troubled many sociologists. Three possible explanations are offered for this apparent contradiction in Weber’s work. First, it is clear that, although English law lacked the systematic order of the Roman law, it was a highly formalistic legal system. Indeed, Weber characterized such formalism (which required, for example, civil actions to follow the precise and exacting procedures of specific writs for specific civil suits) as irrational. It was this very formalism, Weber says, that produced a stabilizing influence on the legal system; and it created a greater degree of security and predictability in the economic market-place.
Secondly, the English legal profession was, during the rise of capitalism, extremely centralized in London, close to the commercial district known as the City. Moreover, lawyers customarily served as advisers to businessmen and corporations. This encouraged them to adjust the law to suit the interests of their commercial clients.
Thirdly, unlike their Continental counterparts, English lawyers resembled craft guilds in their education, training, and specialization, which produced a formalistic treatment of the law, bound by precedent. This led to what Weber calls, following Roman law, ‘cautelary jurisprudence’: emphasis is laid on drafting instruments and devising new clauses to prevent future litigation.
This resulted in a close relationship between lawyers and their (mostly commercial) clients. In other words, this feature of legal practice compensated for the lack of systematization in the law itself.
It seems therefore that what Weber is really saying is that England developed a capitalist economic system, despite the absence of legal systematization, because other important components of the legal system engendered it, but that it may have developed even more rapidly and more efficiently if the common law had been less irrational and unsystematic.
Weber’s general thesis is that the formal rationalization of law in Western societies is a result of capitalism interested in strictly formal law and legal procedure and ‘the rationalism of officialdom in absolutist States [which] led to the interest in codified systems and in homogeneous law’. He is not seeking to provide an economic explanation for this phenomenon, but identifies several factors that account for the development, including, in particular, the growth of bureaucracy which established, as we saw above, the basis for the administration of a rational law conceptually systematized.
In explaining why people believe they are obliged to obey the law Weber draws his famous distinction between three types of legitimate domination: traditional (where ‘legitimacy is claimed for it and believed in by sanctity of age-old rules and powers’), charismatic (based on ‘devotion to the exceptional sanctity, heroism or exemplary character of an individual person’), and legal-rational domination (which rests on ‘a belief in the legality of enacted rules and the right of those elevated to authority under such rules to issue commands’). It is, of course, this third type that is a central feature of Weber’s account of law. And, though the concept of legal-rational authority is bound up with his theory of value (which argues for the sociologist of law adopting a detached view of his subject), the important link is between this form of domination and the modern bureaucratic state. Under the other forms of domination, authority resides in persons; under bureaucracy it is vested in rules. The hallmark of legal-rational authority is its so-called impartiality.
But it depends upon what Weber calls the principle of ‘formalistic impersonality’: officials exercise their responsibilities ‘without hatred or passion, and hence without affection or enthusiasm.
The dominant norms are concepts of straightforward duty without regard to personal considerations.’ The importance of Weber’s sociology of law lies in the correlation between the various typologies. For example, in a society with legal-rational domination, the form of legal thought is logical formal rationality: justice and the judicial process are both rational, obedience is owed to the legal order, and the form of administration is bureaucratic-professional.
On the other hand, in a society dominated by a charismatic leader, legal thought is formally and substantively irrational, justice is charismatic, and obedience is in response to the charismatic leader, and in a society that is genuinely dominated by a charismatic leader, there is no administration at all.
While Weber is widely regarded as the leading sociologist of law, his detractors have found numerous flaws in his analysis, particularly in respect of the two theories I have sketched above. It is claimed, for example, that his account of the process of domination is more complex than the formal, legal manifestation upon which Weber focuses. And some find his attempt to explain the rise of capitalism in England unconvincing.
While Karl Marx (1818–83) and Friedrich Engels (1820–1895) do not provide a comprehensive or systematic account of law, their social theory bristles with observations about the relationship between law and economics (or material conditions). But the law is accorded an inferior position to economic factors: it is merely part of the superstructure – along with various cultural and political phenomena – determined by the material conditions of each society.
Marxist accounts of law adopt one of two standpoints in respect of the relationship between base and superstructure and the position of law. The first has been dubbed ‘crude materialism’ for it argues that the law simply ‘reflects’ the economic base: the form and content of legal rules correspond to the dominant mode of production. This is generally regarded as providing a simplistic and incoherent explanation of how the law does so. The second view is known as ‘class instrumentalism’ because it contends that the law is a direct expression of the will of the dominant class. Its implausibility resides in the claim that the dominant class actually has a cohesive ‘will’ of which it is conscious.
Marx’s theory is fundamentally historicist. That is to say social evolution is explained in terms of inexorable historical forces. Substituting Hegel’s dialectical theory of history, Marx and Engels expounded the celebrated concept of ‘dialectical materialism’. It is ‘materialist’ because it claims that the means of production are materially determined; it is ‘dialectical’, in part, because they predict an inevitable conflict between those two hostile classes, leading to a revolution, as the bourgeois mode of production, based on individual ownership and unplanned competition, stands in contradiction to the increasingly non-individualistic, social character of labour production in the factory. The proletariat, they claim, would seize the means of production and establish a ‘dictatorship of the proletariat’, to be replaced eventually by a classless, communist society in which law would ultimately be unnecessary.
The law plays an important ideological role. Individuals develop a consciousness of their predicament. Marx famously declared: ‘It is not the consciousness of men that determines their being, but, on the contrary, their social being that determines their consciousness.’
In other words, our ideas are not arbitrary or fortuitous, they are a result of economic conditions. We absorb our knowledge from our social experience of productive relations. This provides, in part, an explanation of the way in which the law maintains the social order that – as a matter of the ‘natural order of things’ rather than as a corporately willed desire – represents the interests of the dominant class.
This ‘dominant ideology’ is tacitly assumed to be the natural order of things through a variety of social institutions. They establish an ‘ideological hegemony’ which ensures that – educationally, culturally, politically, and legally – this dominant set of values prevails. This explanation first appears in the prison writings of the Italian Marxist Antonio Gramsci and is developed to a high level of sophistication by the French Marxist Louis Althusser.
The Marxist materialist account of law, however, runs into difficulties when governments enact reformist legislation that improves the lot of the working class. How can these laws represent the dominant ideology or interests? One answer given by Marxists is to describe the state as ‘relatively autonomous’. It maintains that the capitalist state is not entirely free to act as it pleases in the interests of the ruling class, but is constrained by certain social forces. But it will not permit any fundamental challenge to the capitalist mode of production; it is, at bottom, what Marx and Engels called ‘a committee for managing the common affairs of the whole bourgeoisie’.
Since the law is a vehicle of class oppression, it is unnecessary in a classless society. This is the essence of the argument first implied by Marx in his early writings, and reaffirmed by Lenin. In its more sophisticated version, the thesis claims that, following the proletarian revolution, the bourgeois state would be swept aside and replaced by the dictatorship of the proletariat. Society, after reactionary resistance has been overcome, would have no further need for law or state: they would ‘wither away’.
One problem with this prognosis is its rather bland equation of law with the coercive suppression of the proletariat. It neglects the facts that a considerable body of law serves other functions and that, even (or especially) a communist society requires laws to plan and regulate the economy. To assert that these are not ‘law’ is to induce skepticism.
It is important to note that in Marxist legal theory the law is not regarded as anything special. At the core of historical materialism is the proposition that law is ‘the result of one particular kind of society’ rather than that society is the result of the law.
‘Legal fetishism’ is the condition, in Balbus’s words, where 14. Marx and Engels, though they do not offer a comprehensive account of law, provide an analysis of the relationship between law and economics that has proved both influential and enduring.
‘individuals affirm that they owe their existence to the Law, rather than the reverse’. Just as there is a form of commodity fetishism, there is a form of legal fetishism which obscures from legal subjects the origins of the legal system’s powers and creates the impression that the legal system has a life of its own. Many Marxists spurn the legal fetishism which regards law as a distinct, special, or identifiable phenomenon with its own unique and autonomous form of reasoning and thought.
Equally, they reject not only the concept of justice which, in Marxist terms, is largely dependent upon material conditions, but also the ideal of the rule of law – the notion of law as a neutral body of rules safeguarding freedom. To champion the rule of law would be to accept the image of law as a dispassionate arbiter which is above political conflict and remote from the domination of particular groups or classes. Marxists repudiate this ‘consensus’ model of society.
The choice between a ‘consensus’ and ‘conflict’ model of society is important to our conception of society. Most theories of law, as we have seen, implicitly adopt a consensus view that perceives society as essentially unitary: the legislature represents the common will, the executive acts in the common interest, and the law is a neutral referee that is administered ‘without fear or favour’ for the common good. There are no fundamental conflicts of values or interests. Any conflicts that arise do so at the personal level: Victoria sues David for damages for breach of contract, and so on.
At the other end of the spectrum is the ‘conflict’ model which sees society divided between two opposing camps: those who have property and power and those who do not. Conflict is inevitable. The situation of individuals is defined by the very structure of the society: they exist as components of one or other of the two sides. Law in this representation, far from being a neutral referee, is actually the means by which the dominant group maintains its control.
What about human rights?. Socialists generally find the very idea of individual rights (and their connotations of selfishness and egoism) incompatible with the communitarian philosophy of Marxism. They therefore explicitly reject the concept and language of rights – except perhaps when their use advances short-term tactical objectives. Their argument is that social change does not occur as a consequence of our moralizing about rights.
Yet in his early writings, Marx maintained that political revolution would end the separation between civil society and the state. Only democratic participation would terminate the alienation of the people from the state. His own vision of socialist rights, or rights under socialism, seems therefore to spring from his denunciation of the distinctive characteristics of a capitalist society: the exploitation and alienation it creates.
Marx distinguishes between ‘rights of citizens’ and ‘rights of man’.
The former are political rights exercised in common with others and entail involvement in the community. The latter, on the other hand, are private rights exercised in isolation from others and involve withdrawal from the community. ‘Not one of the so-called rights of man’, he declares, ‘goes beyond egoistic man . . . an individual withdrawn into himself, his private interests and his private desires’. And, most tellingly, he adds: ‘The practical application of the right of man to freedom is the right of man to private property’. It has been suggested that Marx should not be taken to mean here that these ‘rights of man’ (equality before the law, security, property, liberty) are not important; but rather that the very concept of such rights is endemic to a society based on capitalist relations of production. This is an awkward contention to sustain, for Marx sought to show that these rights had no independent significance.
Marxists frequently maintain that capitalism is destructive of genuine individual liberty. Private property, according to Marx, represents the dominance of the material world over the human element, while communism represents the triumph of the human element over the material world. He employed the concept of ‘reification’ to describe the process under which social relations assume the form of relations between things. In a capitalist society, he saw this reification as the result of the alienation of workers from the product of their work: the ‘general social form of labour appears as the property of a thing’; it is reified through the ‘fetishism of commodities’. Capitalist relations appear to protect individual freedom, but equality before the law is merely a formal proper of exchange relations between private property owners:
Revolutionary Marxists reject individual rights mainly because they are an expression of a capitalist economy and will not be required in a classless, socialist society. This rejection rests on four objections to rights: Their legalism. Rights subject human behaviour to the governance of rules.
Their coerciveness. Law is a coercive device. Rights are tainted for they protect the interests of capital.
Their individualism. They protect self-interested atomized individuals.
Their moralism. They are essentially moral and utopian, and hence irrelevant to the economic base.
But some Marxists regard the view that rights are necessarily individualistic as too crude. The Marxist historian, E. P. Thompson (1924–1993), repudiates both the Marxist dismissal of all law as merely an instrument of class rule, and the conception of civil liberties as no more than an illusion which obscures the realities of class rule. He argues that law is not simply an instrument of class domination, but also a ‘form of mediation’ between and within the classes. Its function is not only to serve power and wealth, but also to impose ‘effective inhibitions upon power’ and to subject ‘the ruling class to its own rules’:
[T]he rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger.
Several Marxist writers have, not surprisingly, condemned this wholesale acceptance of the rule of law. Some have argued that to champion restraints on authoritarian rule does not commit Marxists to a comprehensive exaltation of the rule of law.
The collapse of the Soviet Union and its satellite states of Eastern Europe, along with the eclipse of Chinese socialism by state capitalism, has gravely wounded both Marxist legal theory and practice.