SOC323H5 Lecture Notes - Lecture 3: Instrumentalism, Collective Consciousness, Legal Positivism

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Published on 6 Oct 2012
School
UTM
Department
Sociology
Course
SOC323H5
Professor
Lecture 3
September 27, 2012
CLASSICAL LEGAL THEORY
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
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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
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Document Summary

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. Critique rule of law- nature of class rule. Video: mitt romney on obama voters (youtube) 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. 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.

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