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Lecture 3

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Department
Sociology
Course
SOC323H5
Professor
Nicole Myers
Semester
Summer

Description
Soc323 Lecture 3 – Classical Legal (continued) & Contemporary Legal Theories Classical Karl Marx 1818-1883 Focus of analysis was social inequalities (class and equality), didn’t actually talk about law but others used his ideas and applied them to law Critiqued industrious society – society is full of conflict, antagonism, and exploitation; didn’t comprise of stability Mitt Romney asked about his tax policies: didn’t want to increase on middle income which he thought was 200-250k/year but actually is 150 (Canada is 69) (family income)  his own is 2million (family) - Powerful make laws to reflect interests of their own, not those of average people Legal sys is much like economic sys – reflect interests of dominant who are the elite, upper class (bourgeoisie), those who own  5% of pop own economy Marx rejected capitalism b/c it concealed domination of higher class & workers believe they are “free” when they are not and are actually being dominated To understand legal sys must understand economic sys – critique of economic sys known as capitalism Although objective of law is to protect public, it actually is a tool of the powerful – function of law is to subordinate worker’s interests & protects interests of bourgeoisie Law as it appears (in books) vs. law in practice Two diff. streams: instrumental and structuralism Instrumentalism - Law is a tool manipulated and created by upper class & state institutions are tools to help capitalist class to control working class and maintain them in their lower position - Courts/government are not independent from elite, but tools of the elite class - Q: legal bodies work with elite to keep working class where they are & prevent an uproar – elite is a small % so it is a way of controlling the masses Structuralism - Rejects notion that law is a tool of the ruling class but instead act on behalf of capital and law is a product of capitalist sys and thus ends up working for the upper class - Political, ideological and economic spheres work together – although work for upper class, also set limits for what they can do  laws that are set to help working class (welfare, increase minimum wage)  prevent uproar; see powerful DO get in trouble (not immune to law) Accumulation: legal sys and state aid (gain and maintain) in accumulating capital Legitimation: maintain and create harmony so capital accumulation can continue by preventing uproar Structuralism extends analysis and explains ideological nature of law and legal order Marx: law is a coercive force & ideological domination Nobody is above the law & it is to be applied in the same way to everybody – guarantee rights and liberties of everyone – formal equality does not extend to economic sphere: exploitation of working class is rarely brought up Law serves to legitimize domination of one class over another – right about property and who owns it Emile Durkheim 1858-1917 Attempted to define subject matter of sociology (founding father of it) His POV made him diff. – away from individualism; need to look at whole not just individual – if all we did was pursue our own self-interest, we would be surr. By instability; society is comprised of common beliefs and consensus = collective consciousness Focused on 3 things: morality, religion, and law Saw law is a legal phenomenon built on a religious foundation; society was then a moral phenomenon & society’s commitment to these morals Development of law; shifting morals Move from repressive law to restitutive law; primitive or advanced society Common morality tells people what is right and wrong according to comm. Standard Higher consensus, stronger collective conscious society Non-conformity was regarded with moral outrage – very quickly and severely sanctioned  act was considered criminal b/c it offended collective conscious Moving from mechanic to organic society Larger modern, industrious society; no shared collective conscious, or is very weakened Need to get along b/c interdependent: need each other’s work; social glue that holds society together is based on interdependence Higher acceptance of deviance b/c no strong collective conscious; more tolerant of deviance  see diff. b/w repressive and resitituve (penal vs. repairing, civil law, commercial law, administrative law; resolving disputes, achieving reconciliation, restoring things) More restorative law = shift to organic solidarity Criticisms: no characterized by repressive law – government actions were repressive, not law; increase in division of labor actually led to more repression – modern legal sys is always repressive Weber Thought law was better understood as matrix of forces; no one dictated how it was being used  complex sys influenced by many forces Individuals must be free to work for their wages; standards must be put in place; law should facilitate economy – goods, services, etc. are exchanged in a smooth fashion Acknowledged that capitalist pushed for legal formalism historically; those in power indeed do look to protect economic interest and laws come to protect them since they have the money to advocate their interests to represented Effects were not obviously clear/direct Feminism attempting to achieve equality b/w men and women; diff. types but this is the commonality b/w these POVs as well as law is a key factor producing gender inequality – legal sys reflects male and patriarchal: male acts as primary figure in org. and fathers are authority figure of women and children and hails female subordination Tries to infuse feminist POV on law and sense of justice – feminist jurisprudence has been most influential  is equality achieved by treating same or recognizing differences (differential levels of power) Issues under Charter; achieved to get equality rights for women & other minorities have pulled on these arg.s to achieve equality rights too Tend to draw from experiences as women; pull on POVs developed elsewhere; focus on how male dom has come to be embodied in law; argue jurisprudence rests deeply in a masculine POV Critical POV 1. Liberal: has seen thru greatest level of success on changes to Charter; long roots/history; 19 th century marked great legislative activity & law was an obstacle, tool for oppression of women & a vehicle for extended rights to other groups of men – all men could now vote, regardless of owning property or not; resurgence in 60s/70s – argument was you got right to vote, don’t need anything else BUT now political rest caused
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