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Lecture 3

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University of Toronto Mississauga
Nicole Myers

Lecture 3 September 27, 2012 C LASSICAL LEGAL T HEORY Karl Marx 1818-1883  Brought idea of social class and inequality in society  Mostly wrote about class and economics; used by others on criminology and sociology issues  Society consists of conflict, antagonism and exploitation  Functionalist  Social class inequalities  Critique rule of law- nature of class rule  Video: Mitt Romney on Obama Voters (youtube)  Argued that legal systems reflect the interests of the dominant class o Huge wealth in the hands of only 5% of the population o Concealed form of domination over the worker o The role of law is to disguise this^ (conceal capitalist domination)  Owners of means of production  Capitalism- domination over worker  Argues to understand the legal system, you have to look at the economic systems  Founds that laws were created to protect ownership (the elite) rather than the common good of society  Law as a tool of oppression used by capitalists to control proletariat  Law how it appears vs law how it is- may appear to be fair in writing (written in neutral terms) but the experience of law are geared towards the interests of the upper class Classical (orthodox) Marxism  Instrumentalism o Identified law as a tool being manipulated by the bourgeoisie o All state and legal systems structured in way to be beneficial to the bourgeoisie o Law is the creation of ruling class o Purposely used in a way to control the lower class o Courts and govt actually have little autonomy and independence and are controlled by the bourgeoisie o How would instrumentalist Marxists account for the high number of working class persons who are imprisoned?  Crimes of the wealthy not punished to the same extent and not pursued in the same way  Maintaining the distinction between the working class and the owners  Structuralism o 1970s o Investigating complexity of capitalism o Rejects idea that state is an instrument of the ruling class o State/legal systems not tools; they are acting on behalf of the upper class o Law is relatively autonomous ; but law is a product of a capitalist system so it works to support capitalist interests o Creation of law: political, ideological and economics work together to create law  They are part of the sphere of capitalism/ modes of production o Law also limits the actions of bourgeoisie o Sometimes law operates in favour of the working class o State does pass legislation that help the general society (i.e. workplace safety laws); designed to protect lower class  have to keep the workers happy (concession); encourage people to continue working which in turn helps the capitalist system o legitimate capitalism by:  accumulation- role of state/legal system have in perpetuating capitalist system; structured in a way that aids in accumulating capital  role of state is to maintain these structures  legitimation- state has to do things in order to maintain social harmony in order to not disrupt capitalist system What is the ideological nature of law?  Law in capitalist societies claims to protect and promote equality o Everyone said to be subject to law o Everyone is treated equally under the law  (fundamental premises for our legal system)  This is not necessarily how it is; the elite tend to get away with more than the average person  Equality doesn’t extend to economical equality; if we are all supposed to be equal, then economic equality should also exist  By narrowing the range of what does and doesn’t count as equality, the process denies the role social class plays (experience of inequality due to social class)  The only substantive, guaranteed right is the freedom to own/dispose of property in a capitalist system o Suggests that law is working to legitimize exploitation of lower class  Class and inequality is an important factor in making of law and enforcing law Emile Durkheim  ‘founding father’ of modern sociology; establishing what sociology was and what to look at (establishing sociology as an individual subject)  Collectivist perspective- looking at influence of collection of people rather than individual actions o Collectivity can be used to describe how society functions  Pursuit of self-interest leads to social instability o Belief in collective consciousness  Morality, religion and law o Saw law as being manifestations of religious or moral preferences  Law as reflection of moral beliefs (law and morality intertwined)  Society itself is a moral phenomenon  Evolutionary logic s Central Concepts  From repressive to restitutive law o Gauge level of integration  Collective consciousness o Totality of the beliefs and sentiments common to the average member o Collective consciousness of people that serves as regulating moral force  Mechanical solidarity o Refers to situation (generally in primitive societies) in which members of society share same beliefs, sentiments, beliefs (same morality) o Moral outrage if someone goes against the group values; response of society often severe and public o Criminal offence seen as offence against collective consciousness o Laws reflective of this collective consciousness o Similar consciousness  Organic solidarity o Bigger and more diverse groups; not a sense of collective consciousness; not shared across all people o Extensive and highly differentiated division of labour o Laws created in way that encourage people to cooperate; law becomes the “social glue” that holds society together o A little more tolerant of deviant acts because people are aware that everyone has different ideas o Interdependence  Repressive and restitutive law o Repressive- penal law; encompasses all criminal law (punishments) o Restitutive- civil, commercial, administrative and procedural laws  Not meant to punish  Facilitate and repair relationships  Encourage r
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