Law is a subcategory of Weber’s notion of order. An order is when conduct is oriented to maxims, i.e., rules of conduct. In other words, people consciously or unconsciously take into consideration some stable set of commonly accepted assumptions and rules of behavior. Law is just one form of legitimate order, together with affectual, religious, value oriented, etc.
Law includes coercion as an added element. Subjects may orient their conducts because of coercive sanctions or because they feel the law is legitimate. There is no unique cause, but several forces together exerting an influence. Thus, the economic may be one of the important factors in the development of law, but law, once established, may then have an effect on the economic sphere of society.
Two dimensions:
The degree of rationality: rational (it follows general criteria applicable to all) and irrational (all similar cases are dealt with differently).
The degree of formality: Formal (the application of rules and procedures that are internal to any given legal system) or substantive (the application of rules and procedures that are outside of the formal system, it employs a external criteria).
· Formally irrational: decision making rests on magic, the oracle, or revelation.
Much tension exists between principles of substantive rationality and formal rationality. During revolutionary changes, e.g., previous external principles may now become the basis of dominant order and the vanquished will now be seen as the radical element.
Why do people orient their behavior to some order? What motivates subjects to be obedient?
Domination: the probability that certain specific commands will be obeyed by a given group of persons. The answer can range from habit to purely rational calculation. In all forms of domination, there is some minimal degree of voluntary compliance. But this does not tell us why people comply. The missing element is legitimacy of the order.
There are three pure types of legitimate domination:
· Traditional: validity of the order comes from habit, custom and tradition. Substantive rationality or formal irrationality.
· Charismatic: commands are followed because for some exceptional qualities of the leader. Substantive irrationality or formal irrationality.
· Legal: it stems from the belief in the legitimacy of rules themselves, laws are rationally constructed. The pure type of legal authority is the bureaucracy. Formal rationality. (the rule of law).
There is a close connection between the legal thought and legal form.
The rule of law, as an ideology, arose in the West because of unique conditions. Law evolved from a substantive rational to formal rational systems. Political, economic, ideological as well as legal factors were influential.
Rationalization in law and the continued development of bureaucracy go hand in hand. One supports the other. Weber sees this autonomous development in evolutionary terms.
Legitimate domination is tied to the evolution and acceptance of rules that are seen as autonomously developed by legal experts who objectively and logically construct a body of laws that have general applicability. Everything falls within this gapless system. Everything can be litigated. New laws can be deduced from old, which become the precedent.
Law serves facilitative, repressive and ideological functions. The rule of law –or formal rationality- assures predictability, calculability and stability.
In primitive societies the main form was the status contract.
Primitive societies Any transaction affected the individual’s entire status. These fraternal contracts, with their magic rituals, implied that the other would now become someone’s child, father, wife, etc.
Transactions with outsiders were marked by barter since magic had little relevance for enforcement.
Enforceability of the contract within the kinship structure revolved around arbitration by elders.
All members of the kinship were responsible for any contract made by one of them –collective responsibility.
Modern society:
All are endowed with formally equal rights. The legal system is perceived as autonomous from economic and political manipulation.
The juridic subject as an abstract bearer of rights now entered many transactions without committing his whole personality. Individual responsibility and obligation are now the dominant concepts. Transactions entered are now guaranteed by the state. The development of the purposive contract is connected to the rationalization of law.
In modern societies, the main form is the purposive contract.
Pure sociology was his main concern.
He insisted on the possibility of studying society scientifically. His first rule was consider social facts as things. Social facts can be characterized by their ability to resist change. They have a coercive quality, and their violation is met with some type of sanction, or at least some type of resistance. Law is the exemplary social fact. But law is also a visible symbol, an external index which reflects the nature of social solidarity in existence. Since much of sociological phenomena and the state of mind are inaccessible to an outsider, the best way to study society is by studying law.
Law is intimately connected with the nature of solidarity.
The evolution of society and social solidarity played an important part in Durkheim.
By simple he meant a society marked by little division of labor and by complex a society characterized by an extensive division of labor.
Society produces two forms of solidarity: mechanical and organic. Society develops form a primitive (mechanical) form to a higher (organic) form.
Mechanical solidarity was seen as the normal type in primitive societies where very little division of labor existed. The bond was sameness or similarity. Standing above all the members of this type of society was the collective conscience. It represents the collective identities, sentiments and thoughts of the group.
Organic solidarity exists in advanced societies. Mutual dependence is the bond. Collectivism is now replaced by individualism.
Knowing what law is most prevalent would tell us something about the kinds of bonds of solidarity in existence.
What form of law would indicate one type of solidarity as opposed to the other.
Since law reproduces the types principal forms of social solidarity we only have to classify the different types of law.
Repressive law is characterized by punishment.
Crime can be defined as acts that shock the common or collective sentiments prevalent in most of the people consciences. In primitive societies it is the collective that reacts to acts that go against the common sentiment. Because of this it is not necessary to have written norms and lawyer.
Restitutive law is the return of things as they were, such as civil, commercial administrative, constitutional law and all types of procedural laws.
Two types of restitutive laws: negative relations revolve around the relationship between the individual and things. Property and tort law are primary examples. These simply dictate that the subject not harm another.
Positive relations are rooted in cooperation which develops out of the division of labor, such as contract, constitutional law and procedural law.
Restitutive laws are not rooted in the collective conscience and thus are not marked by strong punitive reactions.
Two principles: quantitative: The intensity of punishment is the greater the more closely societies approximate to a less developed type.
Qualitative: deprivation of liberty –and of liberty alone- varying in time according to the seriousness of the crime, tends to become more and more the normal means of social control.
The abnormal forms are pathological cases, i.e., they go against the movement toward cooperation, mutual fulfillment and happiness that inheres in the spontaneous forms.
Durkheim assumes that society will evolve from primitive to the complex form. The key is spontaneous development. When society evolves, all parts, all subjects, adjust themselves to the overall structure of society. Society runs smoothly and is in a state of equilibrium. But sometimes regulation or adjustment is not brought about. The elements (the organs) have not adjusted themselves in a rapidly advancing society. Such societies experience a state of anomie. This is one of the abnormal forms.
The second abnormal form focuses on the rules themselves as the cause of evil. This is the forced division of labor. If some external force coerces subjects or constrains them in a function or a role then a gap remains between individual natures and social functions. Happiness is realized when a person’s needs are in relation to his means. In a contract two individuals consent to a contract freely, but the objective consequences may favor one over the other.
The third abnormal form is where different functions of members of society are distributed in such a way that people are deprived of fulfilling activity. This lack of coordination produces waste.
For Durkheim, the contract is par excellence the legal expression of cooperation and is the symbol of exchange. The form of contract can be seen as an index of the type of solidarity in existence.
The development of contract is connected with the development of the division of labor. The progression of law can be characterized by its movement from status to contracts.
True contract did not appear until late age. Primitive societies depended on various forms to assure that agreements were fulfilled, such as the blood covenant.
Solemn contracts. The words themselves in the contract became sacred.
The bond was twofold: to the gods and to the other. So breaking a promise is offending the gods and the others.
The modern type of contract is the consensual contract. Today, the more important transactions still often have some characteristics of the earlier forms.
The consensual contract was a revolutionary innovation in the law. Its most important feature was that it invoked the will.
Durkheim’s ideal contracts was the just contract or contract of equity.
A freely entered contract in itself does not necessarily mean that the contract is just. The key element in defining a just contract is social value. Genuine consents occurs only where the services exchanged have an equivalent social value.
For Durkheim, the contract in the normal division of labor is a temporary truce in the competition among individuals. Subjects in a complex society seek things that they need. Ideally, for a just contract to exist, each should give free consent. It should not have forced one or the other to unwillingly agree to terms. Otherwise, an imbalance has been created.
The origins of property are to be found in the nature of certain religious beliefs. The right of property is the right of exclusion.
Sacred entities, which exist separately and distinctly from the profane, can only be touched by priests.
Primitive property markers of land of clans or families were also permeated with the sacred. Non members of the clan were excludes from this landed property’s use. Boundaries to cultivated fields were surrounded by stones, which represented the sacred.
The respect that we now have for property is the respect that we once had for the sacred.
Initially, the clan owned the sacred land in common. First, a member of the family is elevated in status. With the coming of patriarchal and paternal power this process was complete.
The second cause –which ran parallel- was the development of movable property. The weakening of the collective conscience finds its counterpart in the ascendance of individual rights to private property.
Contradictions in the concrete world must e the unit of analysis. So, studying law is subordinate to philosophy, history, and economics.
Law is simply class rule. The ruling class controls the formation of law. Law is an instrument used for maximizing ruling class interests in society and controlling the working classes.
It explains law by focusing on the overall dynamics of the capitalist system itself. Law is not a direct servant, or instrument, of a ruling class, rather law has a degree of independence from specific elites. This is known as relative autonomy. In other words, a number of historically contingent forces produce specific effects at any point in time I a society. Both bourgeois and the proletariat are subject to the effects of these forces.
Materialist conception of history: in the social production, people enter into relations of production, which 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. It is not the consciousness of the people that determines their existence, but their social existence that determines their consciousness.
Two general levels of society: the base and the superstructure.
The base has two elements: (i) the forces of production, i.e., the available technology, general skills and knowledge, natural resources, etc., and (ii) the relations of production: the forces of production shape how people relate to each other in producing and exchanging goods and commodities. The productive forces are said to determine the socio economic relations.
In a capitalist mode of production, two people exchange commodities for profit (as exchange values),i.e., the commodity’s inherent usefulness is now transformed into a priced and exploitable entity –it takes on exchange value. Different modes of production produce different patterned relations –definite relations, which predate a person.
Within the base contradictions arise between productive elements and relations of production.
Dialectical materialism: at a certain stage of development the material productive forces of society come into conflict with existing relations of production. The changes in the economic foundations lead sooner or later to the transformation of the whole immense superstructure. The notion of dialectic states that the struggle of opposites –the new with the old- produces a new synthesis. This eventually leads to contradictions, new struggles and yet a new need for synthesis.
Economic determinism: a change in the base produces a change in the superstructure, (instrumental Marxism). For structural Marxism, a change in the economic base will have effects on the superstructure but other factors will come into play (relative autonomy or soft determinism, which is reminiscent of the Weberian multicausal perspective).
Instrumental perspective:
Formal rights given in the Constitution are mere props that mystify the basic repressive functions of law.
The formal and the instrumental models are rejected.
The unique position of the relatively autonomous legal form allows two simultaneous processes to take place: repression and legitimation. The core questions focus on certain processes: domination (legitimation), mystification, ideology, hegemony and reification.
According to Pashukanis, the legal form develops directly out of the exchange of commodities in a competitive capitalist marketplace. As commodity owners exchange their commodities something else is taking place, certain appearances (phenomenal forms) begin to materialize. The form of law, legal thought and the juridic subject –the abstract bearer of rights- are all derived from processes taking place in the economic sphere. Thus, there exists a close relationship between the economic and the legal sphere. What is expressed in law are ideas generated during commodity exchange. The form of law and legal thought develop somewhat independently from any wishes to simply control and repress. Law, consequently, has relative autonomy.
People enter socioeconomic relationships not because they have consciously chosen to do so, but because the conditions of production need it. Man is transformed into a legal subject in the same way that a natural product is transformed into a commodity with its mysterious quality of value.
The constant transfer of commodities –and as a logical extension rights- in the marketplace creates the appearance of a bearer of rights. Just as money became the universal equivalent for the purposes of commodity exchange so too does the juridic subject.
The notion of legitimate domination –or legitimation- is connected with the rule of law, which finds its determinant in commodity exchange relations. The legal form gains a relative autonomy from the political sphere. Its inherent logic merely reflects the inherent logic found in the mode of production.
Deviation provides the very opportunity to reinforce the dominant ideology and hence provides legitimation.
For the structuralists, the advanced form of capitalism is not longer characterized by its competitive laissez faire characteristics, but it now appears as state-regulated capitalism, where greater involvement of state comes about to offset different economic crises.
All this needs a new ideology justifying existing arrangements and obedience to them. The progression is from status, to contract and back to status. States is defined as the set of rights and duties attendant upon membership in a particular group, rather than contract, e.g. union member, prisoner, detainee, juvenile, non management worker, welfare recipient, etc.
For the structuralists, the contract –as the expression of wills- is central in law, it is the ultimate expression of commodity exchange. The contract disguises and denies the inherent inequalities existing between contracting parties.
A contract is just when it corresponds to the mode of production. For example, slavery is unjust because it contradicts the basis of capitalism. Fraud in commodities is another example.
The contract arose at a unique stage in the development of society. The capitalist mode of production demanded an instrument that would facilitate exchange. It serves not only a facilitative function but also a repressive and ideological one. Inequalities of members were disguised. Propertied classes dictate the terms of the contract, which workers must take them or leave them.
A society characterized by self-centered individuals in the anarchy of the marketplace where each individual strives to maximize profits can be stabilized by the existence of the contract. The state is present to enforce these arrangements. The result: calculability and predictability: stability.
Crimes of accommodation and resistance range from unconscious reactions to exploitation to conscious acts of survival within the capitalist system to politically conscious acts of rebellion. These criminal actions evolve from unconscious reaction to political rebellion.
With the change to communism the state will wither away and so will the law.
Under capitalism formal equality is the ideal. In socialism the equality principle would be more genuinely applied.
The functions of law are repressive, facilitative and ideological. In a Marxist perspective, all three are interrelated. Repressive functions include violence directed toward the working class. Facilitative functions include the promotion of laws that aid commodity exchange and the maximization of profits. Formal rationality, the contract and the contractual freedoms assure this. The ideological function includes how the law communicates a message to the exploited that they are free, equal and can gain unlimited property by abiding by the rule of law.