Essay: Theories of law

Question One
Galanter provides a “model” of modern legal systems that distinguishes them from those predating the 19th century and those of developing and third world countries. Galanter says that modern law consists of uniform rules, applied uniformly. He also says that modern law is transactional, in that rights and obligations are assigned based on the roles we play in our interactions. Modern legal norms are universalistic in that regulations are to be applied generally and in ways that are reproducible and predictable. The institutions and techniques for administering modern legal rules comprise a hierarchical, bureaucratic, rational system run by professionals, who are themselves divided by their specializations. The system is also amendable and political. When Galanter refers to modernization, he refers to how these features have come to be expressed in the legal systems of present day industrialized nations. He notes that the foundations of modern legal systems exist even in developing and third world nations.
Galanter says that modern law has retained the gap or tension between official law and popular or local law that existed in traditional legal systems. He uses India as an example, since the Indian legal system is as influenced by local law and Hindu law as it is governed by a central power. However, modern law deals with this multilayered legal situation in a different way. It replaces traditional local law with official law over time, sometimes absorbing bits of traditional local law like in the United States. Local courts implement laws promulgated at the national level, and the hierarchy of the legal system is maintained in this way. But people still find a way to engage in local law, despite the modernization of the law, like when local populations vote for their representatives in national legislatures with the intent that these representatives will serve as expressions of local interests at the national level.
Giddens uses the term modern to refer to the institutions and conduct established after the fall of he feudal system. Like Galanter, he thinks modernity refers to the industrialized world, although he notes that industrialization isn’t modernity’s only component. Giddens says that modernity is uniquely dynamic and its dynamism can be explained by looking at three concepts: the separation of time and space, disembedding of social systems, and reflexive ordering and reordering of social relations. Time and space are no longer connected through the situatedness of place as they were in traditional societies. Space used to be closely connected with place, so for example the act of going to work meant traveling to the office. In the current age technology has enabled us to disjoin space and place. One way to visualize this is by looking at telecommunications. Video conferencing allows us to be physically in one place while our minds are within the realm of the televised communication.
Giddens builds the concept of disembedding of social systems on his theory of time and space in the modern world. Two types of disembedded systems are proposed: symbolic tokens (media of exchange) and expert systems (modes of technical knowledge or ways to organize social environments or large amounts of material). These systems depend on trust. An example of tokens is money because money in its developed form is defined in terms of credit and debt, where these concern a plurality of widely scattered interchanges. It is a means of bracketing time and of lifting transactions out of particular exchanges, and thus it is a means of time-space distanciation. The expert systems remove social relations from the immediacies of context, by providing guarantees of expectations across distanciated time-space. For instance, we perceive a lawyer as a legal professional regardless of their seniority or our relationship. Giddens argues that reflexive appropriation of knowledge is characteristic of modernity. Reflexivity is the practice of examining, reflecting, and reforming oneself. In other words, reflexivity means self reflection. The reflexivity of modern social life consists in the fact that social practices are constantly examined and reformed in the light of incoming information about those very practices, thus constitutively altering their character.
This claim of modern reflexivity by Giddens reminds me of the work we read by Foucault. The context for Foucault’s critique of modernity is the particular power/knowledge regimes that govern. One of the techniques/regulatory modes of power/knowledge that Foucault cites is the panopticon. Constant observation acts as a control mechanism in the panoptic, which can be a metaphor for modern state surveillance. A consciousness of constant surveillance is internalized; the observed internalize the expectation’s of the observers and act accordingly over time. They do so in their self-interest to avoid punishment. Thus internalization turns the supervisor’s expectations into the supervisee’s interest, and power is asserted in this manner. A key transition for modernity was one from legalistic subjugation, relying on example and rational-legalistic justifications such as the social contract, to one of power as disciplinary. In Foucault’s conception of discipline, power is not exercised through the punishment of the physical body, but is instead aimed at the mind of the subject. The discipline enacted by modern forms of power is qualitatively different in this instance by operating internally to individuals. Modernity has progressed from limited symbolic and coercive processes of exerting power to maintaining social order by regulating behavior and expectations. Social relations in the modern world are governed as much by expectations that have been internalized as by external authoritative powers.
Durkheim claims that mechanical solidarity and a relatively limited division of labor held pre-modern societies together. However, modern societies are held together by organic solidarity, or mutual dependency between people engaged in specialized work. Durkheim views the division of labor as a central point in his study of modernity; modern societies function thanks to people performing highly specific jobs and depending each other’s specializations. Durkheim views the mechanical solidarity of pre-modernity as something that kept society stagnant. He instead sees organic modernization not as the loss of community but rather a change from a community based on bonds of likeness to a community based on economic interdependence.
 
Question 2
Goodin and Mitchell provide a stylized narrative for understanding the proliferation of welfare policies in England. Welfare was traditionally, and predominantly remains, the duty of individuals themselves. Self-reliance is and has always been the rule; relying on public assistance as a principal source of support has always been the exception. Poor laws date back to Elizabethan times, when providing relief to the needy was the duty of local parishes. But as society grew increasingly mobile with the fall of the feudal system, questions arose over who was to be in charge of aiding the poor. With severed feudal ties, more people were itinerant workers without ties to particular places. The initial response was the Poor Law of 1601, which required the poor to settle in some particular parish in order to receive aide. Obviously, the price of this law was the restriction of labor mobility. This problem was complicated by the fact that able-bodied people were starting to receive public assistance, even though assistance had previously been reserved to the impotent. Then there was categorical relief to people who were members of targeted groups like children, women, and the infirm. This helped to keep able-bodied individuals from gaming the system. Mutual insurance schemes came about after it became clear that sometimes able-bodied workers qualified for assistance, such as in the case of workplace accidents resulting in bodily harm. But these schemes conditioned benefits on working, so the next step in the process was to universalize benefits making them contingent on being a member of the community.
Esping-Andersen discusses numerous theories that have contributed to the rise of the welfare state in the developed world. One theory is that industrialization makes social policy both necessary and possible. It’s necessary because the forces of modernization, like social mobility and individualism, destroy pre-industrial modes of social reproduction, like the family and church. The issue is that the market can’t make up for this because it only serves those who can perform in it. Thus the welfare function is taken up by the state. Another theory posits that the economy can’t be isolated from social and political institutions, and social policy is a way to reintegrate the economy. One idea is that in a democracy, the majority will favor social distribution of market failures. Another theory argues that welfare states emerge more readily in small, open economies that are vulnerable to international markets. Lastly, a class-mobilization theory emphasizes social classes as the main agents of change, and asserts that parliaments are effective institutions for the translation of mobilized power into desired policies and reforms. Accordingly, parliamentary politics is capable of overriding hegemony.
Teubner looks at the ways the law has been influenced by the welfare state. One of the results of the welfare state is that the law is intrumentalized as a guidance mechanism for interventions and compensations. In other words, the welfare state promotes an idea of the law as a tool for bringing about social change. Some suggest that legal instrumentalism results in an alteration of the law’s internal, self-contained structure, which affects its ability to perform as a system capable of reproducing and maintaining itself. Others contest this claim. They say that the deep structure of law permits the modern interventionist welfare state to exist without upsetting the law’s structural formulation.
Teubner’s text also describes some of the ways that the welfare state highlights the limits of the law as a political instrument. The law isn’t always effective as a control mechanism because it sometimes runs aground on the internal dynamics of a given social area. Law in the welfare state also runs the risk of destroying organic social structures. Instrumental legal programs follow a logic that does not always fit the regulated spheres of life. There is also a question of whether the legal system has the resources to respond to the many issues targeted by the welfare state. There is also an argument that instrumental law deflects its own rationale by its interaction with other systems. Critics have called attention to the contradiction between the law’s independence and its social responsiveness, and the clash between the goals of the interventionist state and the rule of law as an ideal.
Friednam describes the welfare state as a machine of social control conducted through the law. He notes how the welfare state uses responsive law, which is different from an autonomous legal system. An autonomous system runs by its own logic and is under its own control. One of the downsides of an autonomous system is its formalism, and one of the upsides is that it is self-contained and maintained despite outside forces. A responsive system on the other hand responds to social forces, and these forces control the law. The downside of this system is helplessness against the power of the state, the upside is that it is sensitive to social needs. The welfare state thus has to balance the rule of law with law’s ability to function. Friedman points out the welfare state’s snowball effect: the more the state provides in terms of assistance, the more it creates a social climate that leads to further increases in demand. As people receive more and more benefits from the government, their expectation for future benefits increases. This has led to some suggesting that the welfare state is a crisis in which the state becomes ungovernable because demands exceed resources and control. This snowball effect is another example of how the welfare state has become prominent in many developed countries. It also shows us one of the weaknesses of the welfare state: its inability to sustain itself and meet all demands.
 
Question 7
Foucault discusses this juridico-discursive conception of power in The History of Sexuality. Foucault is interested in understanding the emphasis we place on sexuality; we tend to think of sex in terms of something hidden or secretive and also as something that hides our true selves. By exploring our sexuality, we believe we gain a deeper understanding of our true selves. Foucault’s main intention is to criticize the repressive hypothesis of sexuality, which is the idea that western society suppressed sexuality from the 17th to the mid 20th century due to the rise of capitalism and bourgeois society. In his critique, he looks at the way desire is shaped by repressive forces, and does not exist when there isn’t a repressive power keeping one from what one wants. Foucault puts forth the psychoanalytic position that construes desire as law. This position is in disagreement with the claim of the repressive hypothesis, which holds that desire is independent of repressive power and we seek our liberation through it. Foucault instead sees desire as a part of repressive power. Desire implies a lack in that we desire only things we don’t have. If we were to realize all of our desires, there would be no such thing as desire. Desire, then, only exists because there is a force (power) that keeps us from realizing our wishes. According to Foucault’s model, power is not restrictive of our desires; it creates our desires in the first place. Foucault argues that the juridico-discursive conception of power sees power as something negative that constrains us, and he is critical of this conception of power that underlies the psychoanalytical position that law constitutes desire as well as the repressive hypothesis.
Foucault lists five characteristics of the juridico-discursive conception of power. Sex and power are negatively related; power always constrains sex. Power acts as a law that determines how sex should be treated. Power acts only to prohibit and suppress sex. Power does not permit sex or permit it to be spoken of, and power asserts that sex doesn’t exist. Power is seen as working in the same manner at all levels: everywhere, there is a uniform repression. Foucault notes that the way we think about power is always one-sided. We believe power to be incapable of doing anything other than dominating and restricting. Power takes the form of law and requires obedience. Seeing power in this way allows us to conceptualize it as an external force, something that acts upon us so we think of ourselves as distinct from it and free to resist it. Seeing power not just in domination but also in our resistance to domination might undermine the way we think about ourselves as free, independent beings.
Foucault takes issue with the juridico-discursive conception of power because of how it describes power as a negative force, as only law-enforcing. He argues that power is not something that is outside of and exerting pressure on us. Power is also comes from within us, and our reaction to outside powers is a crucial component of the larger dynamic of power relations. The juridico-discursive conception portrays power in the form of law; power tells us what we can and can’t, must and mustn’t do. To the extent we disobey the law, we are resisting it and we are free. Liberation is construed as resisting the repressive power that controls our desires.
Foucault suggests that in modern times, power isn’t like the way it used to be. It used to be that a sovereign exerted power over its subjects; the sovereign commanded life and death. The right of life was effectively a right of death in that the sovereign granted you life by deciding not to have you killed. People weren’t expected to do anything really, but there were plenty of things they couldn’t do and limits on their freedom. The power of the sovereign took the form of “thou shalt not.” Foucault argues that in the present power is no longer asserted as a right of death. Power is primarily interested in life and how to improve it. War still exists but wars are not conducted on behalf of some sovereign’s right of death but rather are waged in order to secure a better life for people. The death penalty was once a an act of destruction and vengeance, and now it is seen as a safeguard against menaces. Power is exercised exclusively over life, and is exercised either to foster life or disallow it. With the rise of the bourgeois and capitalism came increases in the power over life. The emphasis is no longer what one can’t do; instead the emphasis is on what people should do. “Thou shalt not” has been replaced with “thou shalt.”
Foucault sees power over life exercised as “bio-power.” This takes two forms. The first is the discipline of the body, where the body is mechanized to be productive and economically useful. Examples of this power include the military and education. This power seeks to create a more effective and disciplined population. The second form is the regulation of the population. This form of power exists in demography, wealth analysis, and ideology. It seeks to control the population on a statistical level. Foucault thinks that the rise of capitalism is due to bio-power. Over time, we started seeing the value of human life. We started using the law less to forbid and condemn and more to normalize and optimize the conditions of life. Power over life made human life a political concept.
 
Question 3
Karl Marx developed the concepts of the base and superstructure in order to describe the structure of human society. The base refers to the forces and relations of production. The base includes all the people, relationships between them, the roles they play, and the materials and resources involved in producing things for society. The superstructure refers to all other aspects of society. The superstructure includes culture, ideology, norms and expectations, identities, social institutions, the political structure, and the state. The base serves as the foundation for the superstructure; the superstructure rises up from the base. The superstructure reflects the interests of the ruling class or bourgeoisie, and it is this class that controls the base. The superstructure thus provides the justification for how the base operates, as well as the power of the ruling class.
As the forces of production change, changes in the base lead to changes in society. Marx seems to suggest this sort of deterministic conception of social change in the letters and extracts collected by Cain and Hunt. One way to read this is that political and ideological struggle plays no role in social change. In other words, people are products of their circumstances and social change is the inevitable result of advances in the forces of production. Orthodox materialism asserts that socialism only becomes possible when capitalism has exhausted its capacity for development of the forces of production, when it is a “fetter” on the future development of society’s productive capacity.
But Engels perhaps wasn’t fully committed to a deterministic approach to social change. In his letter to Bloch he concedes, “the economic situation is the basis, but the various elements of the superstructure…also exercise their influence upon the course of the historical struggles and in many cases preponderate in determining their form….” Engels concedes that social change can be affected other than by changes in the forces of production. There seems to be a tension between the language that suggests a legal expression is synonymous with part of the economic structure and language that suggests that all elements of the superstructure are separate from and caused or influenced by the economic structure.
Stone discusses the role of law and the legal system in Marxism. As a preliminary matter, he notes that a Marxist theory of law can’t yield specific predictions about the content of legal rules or whether specific laws will be enacted. However, Marxism can provide a better understanding of the legal system. Stone looks at Renner’s Marxist theory of law and Renner believed that law can’t cause economic development or change, but can be gradually modified to meet changed economic conditions. For example, the contract came about as a response to the employer-employee relationship. Renner concluded that fundamental social changes occur without changing the legal system. But Renner failed to fully take into account Marx’s connection between economic structure and superstructure, and his theory that there is only a weak relationship between the economic system and the legal system also failed to fully grasp the way that laws change while essential legal relations are at the same time durable and adaptable.
Stone references Pashukanis’s theory of law. Pashukanis believed that law was associated with a class society. He concluded that in a classless society, there would be no law or state. Unlike Renner, Pashukanis noted the connection between the capitalist economic structure and its legal superstructure. He held that the latter reflects and corresponds to the former. In other words, the conceptions of base and superstructure that Marx developed to shed light on function of the capitalist economic system have conceptual similarities in the capitalist legal system.
Pashukanis looked at the dynamics of competition and bargaining in the capitalist society in order to explain the role of law. The capitalist society is driven by competition and bargaining, and these in turn are rooted in the conflicting interests of people engaged in social relationships. Since conflict is the key motivating force, people are inevitably drawn into disputes with others. The legal action is the result of these disputes. In this way, the legal system is just another forum for pursuing economic interests, but it isn’t the economic system. Its central actor is not the man of the market, but the judicial man.
Stone discusses Collins’s critique of Pashukanis. Collins says that Pashukanis attempts to explain all legal rules as mere reflections of commodity exchange and he argues that this is overly simplistic. For instance, in criminal actions where a victim has been physically harmed by another, Pashukanis’s theory falls apart because it is not the victim who is the plaintiff in the criminal case against the defendant, but the state who commences the legal dispute.
Stone offers his own approach to understanding the role of law that focuses on the structure-superstructure put forth by Marx and Engels. Stone points to texts by Marx and Engels that distinguish essential legal relations from the law. While the law may be concrete things like the Uniform Commercial Code, the essential legal relations, like the notion of credit, that underlie the law are different. Essential legal relations are the relations that mirror and legally define the fundamental economic relations in a society. He says that essential legal relations are integrally connected with the economic system. These relations then result in particular legal and political rules and institutions. Lawyers and politicians try to make the law in a manner that conforms to these essential legal relations; thus the law is an expression of production relations under Stone’s Marxist theory of the law.