3 Main Assumptions of Marxist Theory of Law
- Law is a product of evolving economic forces;
- Law is a tool used by a ruling class to maintain its power over the lower classes; and
- In the communist society of the future, law as an instrument of social control will “wither away” and finally disappear.
Weber’s 2 fundamental Distinctions
- Legal procedures are rational or irrational, and
- Legal procedures can proceed, rationally or irrationally, with respect to formal or substantive law.
Rational procedures: involve the use of logic and scientific methods to attain specific objectives.
Irrational procedures: rely on ethical or mystical considerations such as magic or faith in the supernatural.
Formal Law: making decisions based on established rules, regardless of the notion of fairness.
Substantive Law: takes into account the circumstances of individual cases into consideration, along with the prevailing notion of justice.
Weber’s 4 Ideal Types of Societies
1.Substantive Irrationality:
a case is decided on some unique religious, ethical, emotional or political basis instead of by general rules.
E.g. religious judge making a decision without any recourse to explicit rules or legal principles.
2.Formal Irrationality:
rules based on supernatural forces.
It is irrational because no one tries to understand or clarify why it works.
It is formal because strict adherence to procedures is required.
E.g. The Ten Commandments: Moses said, “This is the Law”
3.Substantive Rationality:
The application of rules from nonlegal sources such as religion, ideology and science. It is rational because rules are derived from a specific and accepted source and substantive because there is a concern for justness of outcomes in individual cases.
E.g. decisions of Ayatollah Khomeini in Iran to make decisions based on the Koran.
4.Formal Rationality:
Involves the use of consistent, logical rules independent of moral, religious or other normative criteria that are applied equally to all cases.
E.g. modern Canadian or Western law.
Emile Durkheim 2 Types of Solidarity
- law is a measure of the type of solidarity in a society
- The grounds for solidarity are the interdependence of widely different persons and groups performing a variety of functions in society.
Mechanical Solidarity: prevails in relatively simple and homogenous societies where unity is ensured by close interpersonal ties and similarity of habits, ideas and attitudes.
Organic Solidarity: characteristic of modern societies that are heterogeneously and differentiated by a complex division of labour.
2 Types of Laws that Correspond to Durkheim’s 2 Types of Solidarity
1.Repressive and Penal Law: corresponds to mechanical solidarity. In homogenous, undifferentiated society a criminal act offends the collective conscience (i.e. the “totality of social likeness [Durkheim, 1965:80]).
- Punishment is meant to preserve and protect social solidarity.
- It is a mechanical reaction. - The wrongdoer is punished as an example to the community that deviance is not tolerated. Rehabilitation of the offender is of no concern.
- Restitutive Law: found in modern, heterogeneous societies. Repressive law tends to give way to an emphasis on compensation.
- Punishment deals with restitution and reparations for harm done to the victim.
- Crimes are considered acts that offend others and not the collective conscience of the community.
- Punishment is evaluated in terms of what is beneficial for the offender and is used for rehabilitation.
Dicey Rule Of Law (3)
- No one is punishable except for a distinct breach of law, and therefore the rule of law is not arbitrary or consistent with wide discretionary authority;
- The rule of law means total subjection of all classes to the law of the land, as administered by the courts; and
- Individual rights derive from court precedents rather than constitutional codes.
Functionalist approach
- society as a living organism that must maintain a stable arrangement of relationships between its different systems
- 2 basic functions
Manifest: those built into a social system by design and are well-understood by group members.
Latent: unintentional and often unrecognized, unanticipated consequences of a system set up for different ends.
7 Basic tenets of functionalism
- Societies must be analyzed “holistically as systems of interrelated parts”.
- Cause and effect relations are “multiple and reciprocal”.
- Social systems are in a state of “dynamic equilibrium”, so that adjustment to forces affecting the system is made with minimal change within the system.
- Perfect integration is never attained, so that every social system has strains and deviations, but the later tend to be neutralized through institutionalization.
- Change is a fundamentally slow adaptive process, rather than a revolutionary shift.
- Change is the consequence of: the adjustment of changes outside the system, growth by differentiation, and internal innovations.
- The system is integrated through shared values.
Conflict Approach
According to Marx, the law and legal systems are designed to regulate and preserve capitalist relations.
Law is a method of domination and social control used by the ruling classes.
Law protects the interests of those in power and serves to maintain distinctions between the dominated and domineering classes.
Thus, law is seen as a set of rules resulting from the struggle between the ruling class and those who are ruled. The state, the organized reflection of that class, passes laws to serve their interests
According to conflict theorist, laws have their origin, not in general ideas about right and wrong, but in relation to perceived threats to groups with the power to protected their interests through law.
Critical Legal studies movement
Crits say nothing is distinctive about legal reasoning. It cannot be separate from personal biases of lawyers and judges or the social context in which they are acting.
law is contradictory because the context of a case can determine its outcome.
The law does not cover all situations – this is a shortcoming of it.
It has many inconsistencies and contradictions: called indeterminacy.
They reject law as being value-free and above political, economic and social considerations.
aw legitimizes the status quo.
They say law is part of the systems of power in society.
The law is often seen as neutral and independent, but Crits say this is only illusory because laws legitimize those values that predominate in society.
Feminist Legal theory
Emerged from the backdrop of mass political movements organized around such issues as equality rights, abortion, sexual subordination, exploitation in the profession of law, general prevalence of sexism in most walks of life.
Belief that male-dominated jurisprudence perpetuates women as objects.
Society is viewed as basically patriarchal, organized and dominated by men.
3 Main Themes in Feminist Legal Literature
- Women’s struggle for equality in male-dominated professions, and society.
- They say that men have endeavored, directly or indirectly, to maintain their power over women to “keep women in their place”.
- Believe many structural constraints perpetuate inequality. - Law is andocentric
- This theory says that the law is a reflection of a typical male culture, a masculine way of doing things.
- Feminists must therefore come up with whole new set of laws, which should be devoid of norms and characteristics that reinforce male prerogatives and female powerlessness about gender roles and private intentions.
- Male culture trivializes many problems facing women. - The contention that law is just and fair
- Feminists believe that contrary to professed notions, law is not value-neutral, objective, rational, dispassionate and consistent.
- law defines those concepts in a typically masculine way, ignoring or devaluing the qualities associated with the experiences of women.
Feminist Theory: 3 methods for a law to be perceived as legitimate or correct
- The Woman Question
- Designed to probe into the gender implications of a social practice or rule.
- Designed to probe into the gender implications of a social practice or rule. - Feminist Practical Reasoning
- Underlying assumption is that women approach the reasoning process differently than men: i.e. Women are said to be more sensitive to situation and context, resist universal generalizations and principles.
- Challenges the legitimacy of the norms of those who claim to speak on behave of the community.
- Identifies perspectives not taken by dominant male culture. - Consciousness-raising:
- Provides the opportunity to test the validity of legal principles through personal experiences of those who have been so affected.
- Explores common experiences and patterns from a shared recollection of life events.
- Use those newly formed insights to challenge dominant views of social reality.
- The purpose is to alter public perception of the meaning to women of practices that the dominant male culture considers acceptable or innocuous.
Critical Race Theory
- Concerned with the questions of discrimination, oppression, difference, equality, lack of diversity in the legal profession.
- Acknowledges that racism is an inherent part of modern society, imbedded in the system.
- attempts to rectify the wrongs of racism.
- seeks to examine how law and legal education and the practices of legal institutions support and maintain a system of oppression and non-equal relations.
- recognize the urgency of racial problems and look for permanent and structural solutions
- They would say that because of oppression, racialized minorities see the world differently than those who haven’t had such experiences.
