Sociology and Law
Turkel, Chapter 1
The baby Jessica case illustrates a key insight stated by sociologist Robert Merton: Our beliefs, our
values, and our social institutions often lead to consequences that are unintended (1968). The belief
in the rule of law, the value of justice under law, and the legal institutions that fulfill these beliefs and
values often have consequences that are opposite to what these beliefs, values, and institutions stand
for. The reality of law and society is often different from what we think about law and society.
p. 3 First, it presents a variety of approaches to the study of law and society based on distinctions
among jurisprudence, morality, and sociology as distinctions for analyzing law. Then it presents
alternative approaches to the sociological study of law by distinguishing among strict science,
interpretive science, and critical science.
Some Directions from the U.S. Experience
p. 4 He observed that not only were virtually all politicians trained in the law, but also that legal
language and attitudes derived from the law saturate society and the consciousness of the people
(1835/1961: 330-331).
Yet Tocqueville also saw that this reliance on law had negative features. For one thing, it gave vast
powers to lawyers and the judiciary.
p. 5 Law, even in a constitutional democracy, may be a form of oppression for some and a source of
powers for others.
The Social Construction of Law
p. 6 The common meanings that enable us to cooperate with one another, to establish individual and
shared identities, and to justify our actions and social institutions are social constructions: they are
made through our interactions with one another under linguistic, economic, political, and legal
circumstances that we inherit from the past.
p. 7 Following these insights, this book’s basic approach to law and society is critical and social
constructionist: People create, implement, and take account of law in their actions under conditions
that include scarcity of material resources and inequalities of status, knowledge, financial resources,
power, and opportunities for participation. Once established, law reflects and generally supports the
social conditions that give rise to it. Legal institutions and legal knowledge create roles and
expectations that support underlying social conditions both by taking them for granted and by
providing reasons that make them appear necessary and just. At the same time, legal institutions,
language, and reasoning provide grounds for going beyond the social conditions that give rise to law.
Defining Laws by Approaches to the Study of Law
p. 7 Scholars have generally agreed that, in modern societies, law refers to a body of norms or rules
that regulate the actions of institutions and individuals through specialized legal institutions. Law
always involves both norms and specialized institutions that perform a variety of legal functions:…
Max Weber’s Typology of Approaches to the Study of Law
p. 8 Consistent with this book’s basic definition of law, Weber defined law in terms of both norms
and institutions that regulate action that is meaningful to actors, whether those actors are individuals
or associations of individuals such as corporations. Most importantly, he defined law as a body of
norms or rules that combine consensus and coercion: Law are “consensually valid in a group” and
are “guaranteed” through a “coercive apparatus” (1968: 312-313).
p. 9 Being subject to the laws of a legal community is based on the location and nature of activities
that one engages in rather than on a membership status.
Law is also different from more voluntary associations such as churches and universities because of
the guarantee of coercion that underlies law.
Indeed, Weber defines the modern state as the monopoly of control of society’s means of force and
violence under the control of law.
Public law refers to legal norms that directly regulate actions by the state, state officials, and people
acting as the agents of the state.
pp. 9-10 Private law is primarily focused on the legal norms that regulate the relations among
individuals and among associations of individuals in social and economic relationships.
The Moral Approach to Law
p. 10 The moral approach to law affirms that law is rooted in underlying beliefs about the nature of
human beings and beliefs about right and wrong.
p. 11 Whatever its sources, the moral approach to law always evaluates and analyzes law in terms of
nonlegal values.
Morality, however, exists outside of the law.
The Jurisprudential Approach to Law
p. 12 As indicated in Table 1-1, the jurisprudential approach to the study of law is based on the
premise that law can be and should be internally consistent, orderly, and logical.
While there are a variety of religious, political, and philosophical sources for the moral approach to
law, Weber saw the jurisprudential approach as part of the development of rationality in modern
society.
Jurisprudence represents the thinking of those in the legal profession who codify and explain the law
from a perspective that values the independence of law (Shklar 1986).
The Sociological Approach to Law
p. 13 Both the moral approach to law and the jurisprudential approach are concerned with how legal
norms make action meaningful and orderly. The moral approach includes law in a broad framework
of meaning by typing legal constructs to underlying beliefs and principles that are taken to be the true
sources of law; the jurisprudential approach seeks to define legal concepts and their relations
2
independent of nonlegal values and principles. Both of these approaches, despite their differences,
are overwhelmingly focused on the coherence and meaning of law.
The primary focus of the sociological approach, however, is on the effects that law has on social
action, on beliefs that people have about the social world, on the organization and development of
social and legal institutions, on how law is created, and on the social conditions that give rise to law.
p. 14 In keeping with the sociological approach, we must study laws not only in terms of their moral
or ethical intentions and their internal coherence, but in terms of how they work in practice.
Alternative Sociological Approaches to Law
p. 15 It is important to recognize, however, that sociologists of law often have different ways of
defining and studying issues.
p. 16 Habermas – 3 basic interests/capacities – survival, mutual understanding (communication or
cooperation), and freedom.
These basic human interests are the sources of our interests in knowing about the world or, in other
words, our cognitive interests.
First, there is a technical cognitive interest that underlies positivist or strict science practices in
making knowledge. A technical cognitive interest reflects the human need to exercise control over
the natural and social environment.
Positivist practices construct knowledge by exercising control over the conditions of behavior in
order to better predict how changing conditions lead to different outcomes.
p. 17 A strict positivist approach is difficult to apply to the scientific study of law and society because
of the inability to follow the experiment method.
The second interest in Habermas’s theory that shapes the formation of knowledge is a practical
cognitive interest. This human interest in knowledge is rooted in the fact that human beings must
communicate with one another in a mutually understandable way through shared meaningfully
symbols.
p. 18 The third interest presented in Table 1-2, emancipatory interest, rooted in human capacities to
overcome forms of power and inequality that cannot be maintained on the basis of truth and justice.
Rather, they require using force, threats of force, or manipulation.
Conclusion
p. 21 While the purpose of this book is to provide knowledge about a variety of approaches to law
and society, the main approach is critical and constructionist.
3
Institution – simple definition but that emphasizes the social (vs. individualistic) and organized
aspects of the definition – the organized, usual, or standard ways by which society meets its basic
needs. Have some functions, values, roles, and rules and norms associated with it.
Groups – interact consciously and regularly with each other
Legal – maintain social order, specialized groups (police, courts, prisons), trial, etc.
Political – establish hierarchy of power and authority, political parties, separation of powers, roles,
one vote per person, etc.
Economic – produce and distribute goods and services, banks, efficient production, workers and
bosses, maximize profit, etc.
Social/Cultural (Multiple – Family) – reproduction, relatives, providing for your family, daughter,
faithful to your spouse, etc.
Defining Law
Law refers to:
- a set of rules or norms that are intended to regulate social interactions and, also, to
- the practices, institutions, specialized roles and positions that are somehow involved
with those norms (e.g., enforcement agencies, legal subjects).
Norms are prescriptions on how social interactions should be regulated (patterns of expected
behavior). Norms refer to an ideal state. Note that the legal system refers to both a set of norms and
to actions. That is, it entails “ought to” or “should” issues as well as matters of “is” and “does”. Or,
law comprises (ideal) rules as well as (material) practices and agencies. It entails ‘theory’ (systems of
knowledge) and ‘praxis’ (ways of being, becoming, and doing).
4
Critical, Practical, and Technical Knowledge
Basically, the tree of sociology has the following roots:
1. Marx: wants critique for change.
2. Weber: oriented to understanding of meaning.
3. Durkheim: seeks explanation of causes.
Habermas’s model (in Turkel, pp. 15-20): 3 human interests shape 3 systems of knowledge:
1. Emancipatory interest
2. Practical interest
3. Technical interest
Critical science
Interpretive science
Positivist science
(Marx)
(Weber)
(Durkheim)
Three Approaches to the Study of Law (as specified by Max Weber)
1). The Moral Approach, basically equated with the philosophy of law. This perspective
searches for the ultimate grounding of the legal system in a particular principle (religious or
secular) and/or criticizes existing systems by reference to such a principle as being somehow
bad, unjust, or immoral. Evaluation-oriented.
2). The Internal Perspective, which refers to jurisprudence, or legal theory. This approach
seeks to contribute to the internal consistency of the legal system and endeavors to maintain
its operation by training experts. Efficiency-oriented.
3). The External Perspective, which is the sociology of law, or socio-legal studies. These
perspectives study the effects, causes, motives, and changes, or, in other words, any
characteristics that empirically mark the legal system. Analysis-oriented.
COMPARISON OF SOCIOLOGICAL THEORIES AND METHODS
__________________________________________________________________
Society
Economy
Politics
Culture
Conflict
Rationalization
Individualism
Law
Goal
Means
Oppression
Universalization
Regulation
Procedure
Integration
Values
Research
Historical
Unstructured
Structured
Critique
Interpretation
Explanation
Conflict
Meaning
Cause + Function
__________________________________________________________________
5
Functionalist Conception of Society (from Parsons)
Adaptation
ECONOMY
1
Goal-Attainment
POLITICS
2
________________________________________________________________________
3
CULTURE
Latency
4
SOCIETAL COMMUNITY
Integration
1) Society adopts to its natural environment: the economy (production, consumption,
and distribution of goods and services).
2) Society sets particular goals for itself; it attempts to achieve certain things:
Hence, policy is set: that institution which specializes in this we call Politics.
3) Society is guided by certain values, certain conceptions of things people believe in;
A value is a conviction of how you should live.
Culture is the whole of values that people hold and defend.
4) Society is organized in a particular way (in relation to the values):
Norms are convictions of how we should interact with one another.
Norms guide interaction between people, so that things are held together.
Social integration is society from the viewpoint of its normative organization.
Dual function of law:
* Law Internal Function: to regulate action, social integration. Law regulates
interactions. Legal norms guide interactions between people. So law is part of the
integration component of society.
* Law in relation to other domains of society, societal integration. Law also relates to
other domains of society, in two-fold sense: law influences other domains, and other
domains influence law.
6
Law, Solidarity, and Social Order
Turkel, Chapter 2
p. 24 Law is often different from the moral views of the people that it confronts. Especially in
modern societies, there can be a gulf of what people understand to be right and what is legally
required of them. For this reason, we cannot adequately study law and its development solely in
terms of the moral and ethical views of any particular individual or group.
We must study how society is organized and how social organization is related to culture in order to
comprehend the forces that shape legal norms and institutions.
Positivist Approaches
Positivist approaches to law and society analyze law by studying the independent effects of objective
social conditions, such as social organization and culture, on legal norms and institutions. They seek
to establish scientific laws for explaining as precisely as possible how changing social conditions
cause changes in legal norms and institutions.
As “one kind of social control,” law is best viewed as a “quantitative variable” that “increases and
decreases” depending on its social “setting” (2-3).
p. 25 Rather, he seeks to explain law by social causes, which he presents as five variables: (1)
stratification, which is based on inequalities of wealth; (2) morphology, which includes the division of
labor and other patterns of social differentiation; (3) culture, which is the “symbolic aspect of social
life” that “has an existence of its own, apart from the way people experience it” (61); (4)
organization, which is a “capacity for collective action” (85) that varies in quantity and complexity;
and (5) social control, which is “the normative aspect of social life” that “defines and responds to
deviant behavior” (105).
His approach to causality is not concerned with how law functions or how it relates to any underlying
human purposes or capacities. Rather, he has a technical notion of causality.
p. 26 Even in modern societies, law involves more than direct governmental social control.
This is especially true when positivist approaches provide causal explanations of how law and its
underlying sources in society are related.
Emile Durkheim: Law, Social Organization, and Morality
Rather than focusing on technical relationships that link social factors with law, Durkheim’s positivist
approach seeks to determine the social and moral functions of law along with the sources of law in
underlying patterns of social connectedness or solidarity.
Durkheim’s Method
p. 26 Rather than focusing on technical relationships that link social factors with law, Durkheim’s
positivist approach seeks to determine the social and moral functions of law along with the sources
of law in underlying patterns of social connectedness or solidarity.
7
p. 27 More importantly, Durkheim argues that law becomes both more independent from its social
conditions and more differentiated as society changes from relatively simple forms of association and
organization to more complex patterns of association and organization.
Indeed, the development of the modern individual is rooted in the development of complex patterns
of social organization and an ever more pervasive and refined legal order.
Central to Durkheim’s approach to law and society is the maxim that “social facts are things” (60).
Social facts are defined by their generality throughout society, their coercive nature, and their
externality to individual will and consciousness.
Social facts are reproduced through institutions such as government, courts, legal education, family,
and religion. They make an objective, historical reality that outlives any single generation of people.
p. 27 In order to explain how social facts such as crime rates and economic organization are related
to one another, Durkheim maintains that the sociology of law requires a comparative method.
Law and Solidarity: Simple and Complex Societies
p. 28 Law develops beyond repressive criminal sanctions for violations of deeply shared moral beliefs
to cover more differentiated and less emotionally charged and pervasively shared experiences.
p. 29 The term social solidarity means the persistent and ongoing expectations that people establish
with one another. These deeply shared expectations enable people to take their social worlds for
granted, to interact normally with one another, and to have stable lives.
p. 31 The high level of community participation affirms the shared beliefs and identities that define
mechanical solidarity.
The thorough dependence of the individual on the community is the condition for a repressive form
of punishment that is collectively shared, collectively enacted by the victim and the victim and the
group.
The beliefs through which people interact are focused much more on competency in practical
activities than on shared beliefs about common ancestry, ultimate philosophy, politics, or religion.
p. 32 Organic solidarity is rooted in complex, functional relations among specialized institutions and
individuals.
p. 33 Restitutive law places a high value on individualism and on avoiding disruptions to ongoing
social activities.
The role of law in maintaining social order, securing private and individual rights, and compensating
people for their private losses becomes more compelling than affirming shared morality through legal
means. (PURPOSE OF THE LAW CHANGES)
Law, Social Solidarity, and Moral Boundaries
p. 34 Viewed in this way, these findings refute Durkheim’s claims about the relationship between
social development and legal development; societies appear to become more highly punitive, and
therefore repressive, as they become more complex rather becoming more lenient and therapeutic,
and therefore more restitutive.
8
To adequately understand these issues, we must have an approach that goes beyond positivist
explanations by including interpretive methods.
Repression and Solidarity
Nonlegal and Legal Dispute Resolution
p. 38 At the heart of nonlegal dispute settlement was church organization and shared belief.
Moral Righteousness and Legal Symbolism
p. 40 Specifically, status politics is the effort to use law to criminalize, punish, and more generally,
repress actions that are deemed immoral by people who share values, ethnicity, and affiliations over
others who do not consider these actions to be morally wrong.
p. 42 Under conditions of legal and social complexity, the institutional and procedural locations for
the moralistic use of law by one group against one another increase.
Legal institutions were features of wider social conflicts.
Conclusion
p. 43 Yet Durkheim’s notion of causal explanation, because of its focus on the relationship of law to
social solidarity and morality, opens questions about law and society that require interpretive case
studies.
9
Sociology is study of social facts. Social facts are defined as:
1) ways of being, including (ideal) representations and (material) actions, which
2) have a coercive power over the individual; they are accompanied by sanctions and control the
individual; and this is because
3) social facts are general, or external to the individual. Social facts are social and cannot be
reduced to individual manifestations. Therefore, they are not collective (shared by everyone) but
general. In sum, society is a reality sui generis (anti-psychological).
To explain a fact, study its cause and its function separately. The rules to find function and cause are:
a). the cause of a social fact lies in antecedent social facts, and b).the function of a social fact lies in
the end it fulfills. Since there can be no experiment in sociology, causes of social facts are
investigated by the comparative method, i.e. comparing the cases where two social facts are
simultaneously absent or present, so we can discover the variations displayed in these combinations
which provides evidence that one fact (cause) leads to another fact (effect). This method is guided by
the rule that one cause leads to one effect.
Economic developments have brought about a division of labor and this growing specialization and
individualization has spread over many domains of society. This evolution can be seen in the
following terms:
from mechanical society
to
organic society
similar replicated parts (clans)
individual differentiation
solidarity because of similarity
solidarity through (functional) difference
strong common belief systems
plurality of different value systems
The latter type is manifested more and more in the course of history. But the issue is not that there is
less solidarity but that modern solidarity is different. It is not about less society and more individual,
but about a different relationship between them.
Law for Durkheim is about maintaining social solidarity or integration, a body of rules and practices
with the explicit purpose of keeping society together. Law, as manifestation of the collective
consciousness, is a measure for the aforementioned development.
from
Repressive law
to
Restitutive law
represents the unity of society
reflects contracts
typically religious law
typically secularized
not specified (everybody knows)
codified (written down)
criminal is removed, banishment
criminal is re-integrated, prison.
In modern law, there is also non-criminal, civil law (in ancient society, it is all criminal). So this
corresponds kind of to the separation of civil and criminal law.
10
Lukes and Scull (1983)
p. 5 In short, Durkheim’s distinctive view of law focused upon its links with morality, deriving from
it, and expressing it, upon its constraining or negative aspects and upon its organized character, but
without examining the independent explanatory role of the actors and institutions that combine to
influence, create, interpret, and apply it.
p. 6 Thus, as Vogt has well said, the Durkheimians ‘slighted the importance of conflict: between
moral principles, between laws, and…between legal and moral rules.’ This was an underlying feature
of Durkheim’s thought as a whole: he assumed that ‘normally’ the elements of social order were
integrated and ‘solidary’ and he saw conflict as pathological and transitory. (Ignored how law and
morality can come into conflict).
DID NOT LOOK AT THE POSITIVE OR ENABLING ASPECTS OF LAW
BLIND TO THE SIGNIFIANCE OF HOW LAW IS ORAGNIZED
Overstated role of repressive law in pre-industrial societies, ignored intermediate stages, classified all
pre-industrial societies as the same,
Ignored power – p. 24 Law, after all, is one of the focal points of conflict and struggle in modern
societies, a major means by which power is legitimized, and the form in which coercion is most
routinely exercised.
Moral conflicts underplayed, law and morality cannot be equated
11
Rationalization, Law, and Liberalism
Turkel, Chapter 3
p. 46 First, the policy aims at controlling the exercise of power by those in positions of authority.
Second, the policy is implemented through universal procedures.
Third, the policy affords equality to all students to challenge grades that they deem unfair.
Fourth, the policy provides specific grounds for complaining against grades: the student must
demonstrate that there has been discrimination and/or a violation of course procedure by the
instructor.
Fifth, the last stage of the process is for appeals on the administration of the policy and the rules
through which it is implemented.
As our example suggests, the rule of law means that our relationships and actions are governed by
codified, impersonal, and impartial procedures and rules that are applied equally and fairly to all
people.
Under the rule of law, people share the belief that their relationships and actions are constrained bye
legal codes and legal institutions, and institutions are shaped through similar expectations. The rule of
law means that law is the ultimate source of social control.
p. 47 This chapter goes on to discuss some of the implications of the rule of law. It focuses on social
change by analyzing how the rule of law has shaped the change from classical liberalism and
competitive capitalism to corporate liberalism and corporate capitalism in the United States.
Classical Liberalism and the Rule of Law
p. 47 The rule of law is most fully associated with social movements and patterns of social life that
take the liberty of the individual as a basic principle of social organization.
Thus, the rule of law is rooted in the recognition that individual freedom and security are
accomplished through a society governed on the basis of legal limitations on state power, legal
equality, and economic rights.
These scholars agree that a competitive market economy is both a condition for the rule of law and a
partial outcome of the rule of law.
p. 48 Scholars maintain that competitive capitalism is best served by a legal order based on the rule of
law: the law is impartial; it treats people making claims about contractual obligations and property
relations with detachment and equality; and has institutional, procedural, and intellectual distance
from specific economic interests.
Classical liberalism understands society as relations among persons who interact on the basis of the
power of their possessions for their individual gain. This view blends with and supports the logic of
the competitive market and legal concepts such as individual ownership and contracts.
p. 49 Under these conditions, law becomes an increasingly dominant way of settling disputes and
controlling the actions of individuals.
12
This pattern of social life enhances tendencies toward the weakening of neighborhoods and
communities. It supports the split between the public worlds of law and politics and the more private
spheres of market relations, family life, and patterns of association-religious, political, and
intellectual-based in the liberties of the individual as the basic actor in society (Unger 1976).
While the rule of law is rooted in principles of individual liberty and the political and moral equality
of all individuals, it is also a rich cultural value that serves to support the legal order.
Beliefs about the rule of law also support the political order.
The Rule of Law and Rational Social Life
pp. 49-50 The law provides a set of meanings about such things as property, responsibility,
obligation, and rules of interaction that are the background for people making commitments to one
another and planning activities together.
p. 50 Weber’s approach to law and society also enables us to understand the rule of law as an
important feature of social development and culture.
Modern culture, social organization, social action, and individualism are rooted in shared meanings
that focus on successfully coordinating and accomplishing instrumentally defined goals. As our
relationships become more anonymous and goal-oriented, we tend to understand one another and
our activities through standardized meanings that hold across all situations rather than just in our
personal lives.
These features of modern rationality have two very important dimensions for social action. On the
one hand, rationality is a way in which people understand their actions. Rational calculation forms
our common sense interpretation of ourselves and our actions. On the other hand, rationality is a
feature or property of a social order. For example, capitalism is a form of rational economic action:
individuals understand and coordinate their everyday economic activities by calculating investments,
profit, and income. At the same time, capitalism is a social order that is based, among other things,
expressing values in terms of money and modern accounting practices (Colignon and Covaleski
1991).
Moreover, both the everyday rationality of individuals and the accounting practices of business
enterprises tend to complement and reinforce each other.
p. 51 In modern society, more and more spheres of life become rationalized as they become
increasingly based on impersonal rules, calculation, and predictions of outcomes.
Economic efficiency, that is, the allocation of scare resources to achieve individual and group ends,
becomes the most important way of interpreting economic organization, production, and
consumption.
Bureaucracy, the modern form of social organization, is also based on rationality. Bureaucracy is
essentially a way of organizing specialized scientific and technical knowledge for accomplishing
technically defined goals (Weber 1968:972-975).
Just as the economy and social organization become more rationalized, so too does the modern state.
The modern state increases the rationality of political action, the exercise of governmental power,
and the concentration of the means of violence.
13
pp. 51-52 It is important to recognize that there are different principles of rationality within the
major arenas of social action discussed here. Economic, bureaucratic, and political institutions and
patterns of action are based on different principles of rationality.
p. 52 Economic rationality is concerned with economic efficiency and the allocation of resources for
alternative uses. It is based on the need to rationally distribute scarce resources. Bureaucratic
rationality focuses on organizing knowledge and defining and realizing goals. It is based on the need
to develop and coordinate specialized knowledge, from accounting to chemical engineering, in order
to accomplish goals. The state focuses on accumulating and concentrating power in order to make
territory and social life secure.
Law regulates the tensions and conflicts among all of these arenas of modern society.
Rationalities and Types of Legal Decision Making
Weber’s typology of law focuses on the ways legal rules are used to decide particular cases.
p.53 While Weber considers law in relation to an array of social structures, institutions, and
meanings, he is most concerned with the jurisprudence approach: law is essentially about judges
making legal decisions on particular cases.
These two dimensions are formality and rationality. Formality is the independence of legal
institutions and procedures from all other social institutions and procedures, including the family,
politics, economics, and religion. Rationality is the reliance on specifically legal principles and rules
for making decisions that are logically applied to particular cases. These legal principles and rules are
independent of principles and rules from other bodies of knowledge and rules including religion,
politics, and economics. Thus, rational law requires the highest degree of institutional, procedural,
and intellectual independence of law from society.
Legal decision making that is substantively irrational is the least rational because it does not have
independent institutions, procedures, or knowledge. Law is not differentiated from other institutions
and patterns of knowledge.
p. 54 Formal irrationality has procedures that are specifically used to make legal decisions. It has a
higher level of procedural integrity than does substantive irrationality.
Substantive rationality combines an absence of legal institutions and procedures with reasoned
decision making. The reasons that are provided, however, are not specifically legal.
p. 55 Formal rationality is the ideal type of rational law.
The Rule of Law and Formal Rationality
p. 56 Rather, it is a construction based on the interpretation of legal decision making that serves
analytical purposes: it enables us to think about the world and observe law and society with greater
precision and clarity.
p. 57 One intriguing line of interpretive inquiry that comes out of concerns with the rule of law and
formal rationality is the study of how people actually establish facts and form rational grounds for
their actions in different legal institutions and contexts.
14
Based on the concepts that we have presented and our concern with analyzing the rule of law as
structural and cultural condition of action, a society is characterized by the rule of law to the degree
that it fulfills two conditions: Law is the most pervasive source of social order and formal rationalitry
is dominant over other types of law.
p. 58 Beyond the role of law as a foundation for social order, however, law must be fully independent
of other institutions and procedures in order to secure its impartiality and objectivity.
The Rule of Law and the Rise of Corporate Capitalism
p. 59 While classical liberal society and competitive capitalism have the best fit with the rule of law,
neither liberal society, economic organization, nor law stay frozen in particular forms.
Rule of Law facilitated change from classical liberalism and competitive capitalism to corporation
capitalism and corporate liberalism.
Constructing Corporate Capitalism Through the Rule of Law in the United States
p. 60 Basic to this social transformation was the creation of new legal forms of property and market
relations that enabled the deployment of vast amounts of investment capital and outlets for massproduced goods.
The issue of market power-the organization and control of markets-became a central point of
political and legal conflict.
p. 61 The corporate liberal approach sought to allow corporations to determine market relations
under a state system of regulative law, enforced through the courts on a case-by-case basis.
This corporate liberal approach combined economic and bureaucratic rationalities much more fully
than either the highly individualized market approach or the statist approach.
Indeed, it was the formal rationality of law as acted out by the Supreme Court that authoritatively
defined the boundaries of corporate power and governmental regulation.
Conclusion
15
Max Weber was interested in the formulation of general principles of social action and held that
sociology should seek to understand human action inasmuch as it is meaningful.
Social interaction is subjective: it is guided by the motivations and intentions of the actors involved.
Sociology seeks to understand those motives and meanings from an emphatic attitude. Motives make
interaction meaningful. The techniques to grasp meaning in interpretive sociology include: a) direct
observation of emotive action (e.g. anger), and b) identifying an intervening motivational link
between intention and action (e.g. chop wood). This implies the identification of a particular motive
which is always linked to a broader frame of normativity (in which framework it makes sense). This
perspective is called interpretive sociology.
An ideal-type is a methodological construction with the purpose of interpreting and explaining a
historical event. It is constructed by abstracting and combining a limited number of elements which
are seldom found, in purity, in reality. However, the ideal-type is not an ideal, it is, rather, an
idealization with a purpose: the ideal-type is not description nor hypothesis, but it is a methodological
device that aids in describing and explaining, it makes reality describable and explainable at all. For
example, Weber distinguished four ideal-types of social relationships:
1) Traditional action is carried out under the influence of a custom or habit.
2) Affective action is also carried out for its own sake, yet it rests on an emotive state;
3) Value-rational action is directed towards an ideal, carried out for its own sake;
4) Purposive-rational action is directed by a calculation of means towards a given end;
The identification of several influencing factors rests on certain assumptions. The identification is
selective, made by the sociologist (subjective), but also verifiable by others (objective). Weber stresses
the need to break through materialist and idealist models of explanation to indicate the elective
affinity of different social conditions.
Weber observed that nearly all spheres of social life had become more and more rationalized in the
purposive-rational sense. Examples include a).Science (disenchantment of the world, over and against
religion); b).The state and bureaucracy (more efficient government); and 3). Capitalist economy.
These developments help one another in the sense indicated by the notion of elective affinity, i.e. as
mutually reinforcing influencing factors.
In capitalist conduct, a calculation of capital in terms of money is made; it is the desire to use the
most efficient means to accumulate wealth. To acquire more and more money, and at the same time
the avoidance of pleasure, there is employed a very rational procedure.
The spirit of ascetic Protestantism gave birth to capitalist economic rationalism because of its
emphasis on the ascetic rational motives with a denouncement of pleasure. Then, once capitalism is
established, this religious core does not have to be there anymore. The economic rational conduct of
life becomes a power independent of religion. The idea of the calling is a support for capitalism that,
in the end, it no longer needs.
Weber states that there is an elective affinity between certain sorts of Calvinism and the ethics of
capitalism. He adds that it is necessary “to investigate how Protestant Asceticism was in turn
influenced by its character by the totality of social conditions, especially economic”.
Law as the basis of modern political authority; That is why law is so important in a modern society,
because politics is based on a system of laws. Political legitimacy (for power to be authoritative) can
be of three kinds: 1). Traditional authority, based on the belief in some traditional source of power;
2). Charismatic domination, based on the belief in the extraordinary qualities of a person; and
3). Legal domination, typical for the modern state, based on a system of law, rules that guarantee
obedience.
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Law is defined as external guarantee through a specialized staff. Weber writes, “An order will be
called law if it is externally guaranteed by the probability that coercion (physical or psychological), to
bring about conformity or avenge violation, will be applied by a staff of people holding themselves
specially ready for that purpose”. The element of staff, the organized enforcement apparatus includes
“judges, prosecutors, policemen, or sheriffs.”
Modern law takes on the specific form of formal rationalization (rational = makes sense), that is the
key development to Weber: the fact that law is formally applied, resting on certain procedures, not
what these laws refer to, what principles they imbed. The formal rationalization of law came about
under influence of three tendencies:
1) Secularization of law:
Sacred laws became separated from secular ones, which eliminated the substantive
irrationality. Religious charisma and mystery was discarded from law.
2) Laymen involvement in adjudication:
Secular officials entered the courts (cf. also a deliberating jury).
3) Bureaucratic Government develops and expands:
Officialdom expanded and it is generally interested in clarity and orderliness.
17
Weber (1954)
p. 1 In our context it shall mean that science which aims at the interpretative understanding of social
conduct and thus at the explanation of its causes, its course, and its effects. Human behavior shall be
called ‘conduct” (Handlen) when, and in so far as, the person or persons acting combine with their
behavior some subjective meaning. The behavior may be mental or external; it may consist in action
or in omission to act. Conduct will be called “social conduct” where its intention is related by actor
or actors to the conduct of others and oriented accordingly in its course.
This case will be called purpose-rational conduct (expectations of objects and human beings behave
in a certain and use these expectations as means to meet own ends).
This case will be called value-rational conduct (conduct determined by faith and/or measured by
standard, ethic, or religion).
p. 2 Or, third, social conduct may be determined affectually, especially emotionally, by actual
constellations of feelings and emotions.
Or, it may, fourth, be determined traditionalistically.
p. 3 Conduct, especially social conduct, and quite particularly a social relationship, can be oriented on
the part of actors toward their idea (Vorstellung) of the existence of a legitimate order. The
probability of such an orientation shall be called the validity of the order in question.
p. 5 The legitimacy of an order may, however, be guaranteed also by the expectation of certain
external effects, i.e., by interest situations.
p. 6 In our context the concept of law will be defined as an order which depends upon an
enforcement staff.
p. 7 An ‘externally’ guaranteed order may also be guaranteed “internally.”
External guarantees will be usually be lacking where the violation of the standard does not
appreciably affect the interests of others.
p. 9 Today the most common form of legitimacy is the belief in legality, i.e., the acquiescence in
enactments which are formally correct and which have been made in the accustomed manner.
p. 10 The peaceful struggle will be called competition if it is carried on as formally peaceful endeavor
to obtain the power of disposition over opportunities which are coveted also by others.
p. 303 Mainly two causes are responsible for the emergence of these particularistic laws. In the first
place, they have been a result of the occupational differentiation and the increasing attention which
commercial and industrial pressure groups have obtained for themselves.
The second cause, which has played an increasingly important role in most recent times, has been the
desire to eliminate the formalities of normal legal procedure for the sake of a settlement that would
be expeditious and better adapted to the concrete case.
p. 306 Also, outside of the sphere of commodity exchange, the rationalization of the law has
substituted attitude-evaluation as the significant element for assessment of events according to
external criteria.
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p. 307 To a large extent such conflicts rather are the inevitable consequence of the incompatibility
that exists between the intrinsic necessities of logically consistent formal legal thinking and the fact
that legally relevant agreements and activities of private parties are aimed at economic results and
oriented towards economically determined expectations.
p. 316 Indeed, we may say that legal systems under which modern capitalism has been prospering
differ profoundly from each other in their ultimate principles of formal structure.
p. 318 For the development of capitalism two features have been relevant and both have helped to
support the capitalistic system. Legal training has primarily been in the hands of lawyers from among
whom also the judges are recruited, i.e., in the hands of a group which is active in the service of
propertied, and particularly capitalistic, private interests and which has to gain its livelihood from
them. Furthermore and in close connection with this, the concentration of the administration of
justice at the central courts in London and its extreme costliness have amounted almost to a denial of
access to the courts for those with inadequate means.
p. 319 Primarily they are rather consequences of the insoluble conflict between the formal and the
substantive principles of justice, which may clash with one another even where their respective
protagonists belong to one and the same social class.
p. 321 The law is drawn into antiformal directions, moreover, by all those powers which demand that
it be more than a mere means of pacifying conflicts of interests.
Whatever form law and legal practice may come to assume under the impact of these various
influences, it will be inevitable that, as a result of technical and economic developments, the legal
ignorance of the layperson will increase.
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Law, Conflict, and Capitalism
Turkel, Chapter 4
p. 67 For some scholars, the rule of law represents a high point of human and social development.
For Zinn, the rule of law is a kind of conspiracy. Along with other features of modern society and
rational social organization, such as representative government and bureaucracy, the rule of law
masks the true sources of power in society, making it difficult to identify those individuals and
groups who exercise power.
p. 68 Marx’s analysis is rooted in concerns with the emancipation of people from the burdens of
socially unnecessary labor, insecure and poor material conditions of life, and patterns of actions and
though that block their understanding of, and participation in, shaping their lives.
By studying Marx’s approach, we uncover five core contributions to the critical analysis of law: the
dialectical analysis of the logic of capitalism, alienated labor, the essential legal relations of capitalism,
law and the political relations of capitalism, and the critique of law as ideology.
Karl Marx: The Rule of Capital and the Rule of Law
p. 68 Dialectically related means that law and society are necessary and opposing aspects of the ways
in which people go about maintaining their material lives.
p. 69 In understanding Marx’s approach to law, it is important to focus on the double-edged
relationship that law has to domination and freedom.
By making it possible to organize society for greater production of material goods, capitalism creates
the historical possibilities for eliminating poverty and toil as features of the human condition.
The Logic of Capitalism
p. 67 The roles that social classes play in history depends primarily on their relations to society’s
capacities to produce wealth.
p. 70 The forces of production are the material bases of production, such as machinery, factories,
technological knowledge, education, a skilled and healthy labor force, and raw materials. The social
relations of production are the patterns of social life and institutions through which the forces of
production are allocated, controlled, and employed.
These contradictions lead to economic crises of overproduction and severe social dislocations
p. 71 Capitalist forms of organization and social action increasingly block rather than support the
growth of forces of production.
Alienated Labor
p. 72 Under capitalist social relations, exploitation takes the form of a contract: workers and
employers are free to enter into legally binding wage contracts that determine their mutual
responsibilities.
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Basic to capitalism’s historical uniqueness is its dependence on conditions that make labor into a
commodity: labor is bought by capitalists who use that labor that they purchase to produce goods.
Alienated labor divorces the work that people do from democratic decision making since their jobs
are defined by employers as tasks that they must perform.
Instead of enabling them to express themselves through their activity, labor is an externally imposed
necessity.
In their laboring activity, Marx argues that workers become alienated along four dimensions. First,
workers become alienated from the products that they produce.
p. 73 Second, in selling their labor for wages and in producing according to the orders of the
employer and the way in which the factory or plant is organized, workers become alienated from
their own activity.
Third, in addition to becoming alienated from the products that they produce and their laboring
activity, people become alienated from one another.
This supports the fourth dimension of alienation: an inability of people to act collectively in ways that
secure and enhance the conditions of human life as a whole.
This enhances the need for law as communal bonds weaken.
Essential Legal Relations of Capitalism
p. 73 These legal relations of alienated labor are established through legal categories and institutions.
These writings stress the ways in which law constructs social relationships that separate people from
one another and that enable the exercise of power by people who own and control resources over
working people.
p. 74 At the same that people are detached and unconcerned about one another, law supports and
defines social classes on the basis of property, contracts, and the dynamic of capitalist production.
For Marx, law shapes and defines the economic alienation that people are caught up in as producers
and consumers. This is accomplished primarily through the role that legal ideas and concepts play in
establishing and maintaining labor as an alienating activity that people perform in producing the
goods that are bought and sold on the market. These legal and economic forms, moreover, are also
related to the organization of politics and the state.
Most centrally for capitalism, the contract between the capitalist and the worker is enforceable
through the state because it represents a freely made, voluntary agreement.
Most importantly, property comes to constitute the resources and powers that individuals control in
making contracts with one another.
p. 75 The essential legal definitions of contracts and property, then, are affirmed by the highest Court
through its commitment to precedent: contracts and property are held to be less subject to change
through judicial interpretation than constitutional principles.
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p. 76 Vagrancy laws, in effect, became less important for ensuring a supply of cheap agricultural labor
and more essential for securing the conditions of trade and the movement of persons and property
during the formation of commercial capitalism.
Law and the Political Relations of Capitalism
p. 77 One obvious way in which law shares in economic logic is the fact that politics and lawmaking
are, in fundamental respects, produced and consumed as commodities.
Just as money and the legal definitions of exchange and private property construct the individual and
products in ways that conform to alienated labor and the domination of people by the products that
they produce, so legal definitions of equality, rights, and citizenship alienate them from their political
capacities to act collectively rather than as individuals.
Through the rule of law under capitalism, the social relations that people engage in are presented as
actions of distinct individuals who appear to be equivalent through the legal categories of wills and
rights. Just as money makes the values of commodities to be equivalent for purposes of exchange, so
the “abstract legal person” (Balbus 1977:577) substitutes for the actual individual who is located in
specific social and family relations. Just as money and the legal definitions of exchange and private
property construct the individual and products in ways that conform to alienated labor and the
domination of people by the products that they produce, so legal definitions of equality, rights, and
citizenship alienate them from their political capacities to act collectively rather than as individuals.
p. 78 While the rule of law, constitutionalism, and political emancipation are an advance over
monarchy and political regimes that claim a religious basis, people can be fully liberated only through
social emancipation.
Moreover, Marx maintains that the domination and inequality that shapes everyday life are partially
created by rule of law definitions of people as legally and politically equal.
The Separation of Market and Families
p. 78 Olsen shows that in separating the public arenas of work and market from the household in the
early nineteenth century, capitalism created an ethical separation between men and women.
In the family, however, there was very little in the way of individualism and legal obligation.
No access to law by women.
Law and Ideology
p. 79 In addition to this narrow instrumental view of legal ideology, law can be analyzed as part of a
broader set of beliefs-individualism, the justice of private property and contracts, the legitimacy of
unequal distributions of wealth and income-that is created and disseminated through legal
institutions, religion, education and popular culture.
p. 80 These legal ideas go beyond arguments for specific class interests.
Most significantly, they do not fully recognize that law has some independence from powerful classes
because it is partially a result of conflicts within powerful classes.
Law reflects the complexity of social conflicts while maintaining the general form of capitalism.
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p. 81 In his later writings, Marx often uses the concept of ideology differently. Especially in his
analysis of laws regulating the working day, he formulates legal ideology more as a feature of a
historical situation.
p. 83 Marx’s study of changes in laws regulating the working day maintains that working people, the
leaders of the working class movements, and people supportive of bettering the conditions of
workers’ lives must be actively engaged in creating progressive legal change.
Political participation and legal recognition.
Conclusion
p. 85 As we shall see, changing the form of property in the means of production has occurred,
although not always in the direction Marx expected.
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Marx defended a perspective known as dialectical or historical materialism i.e. study society as an
historical process conceived of as the result of two opposing forces (thesis, antithesis, synthesis), and
social phenomena are determined by economic conditions (economic determinism).
Gradually, evolving from feudal societies (agricultural, landowners), the means of production are
concentrated in factories, and the owner of the means of production appropriates the products and
sells them on the market. Then the means of production and its products are in the hands of the
capitalists, while the producers (laborers) possess nothing. The accumulation of capital corresponds
to an accumulation of misery. Among the important changes that take place is the development of
technology. The worker does not operate the machine like a tool, rather “it is the machine which
possesses skill and strength in place of the worker.” The worker is subjected to the machine to
perform but fragments of work. The worker is an appendix to the machine. As a result, capitalism
brings about various forms of alienation.1) from labor; 2) from the product of labor; 3) from others;
and 4) from oneself.
The material core of a society is the capitalist free-market economy. Everything else in society is
determined by and built on top of this: economic infrastructure

social superstructure.
Capitalist production also leads to class antagonisms: the contradictions of capitalism are socially
translated into an antagonism between two different classes: Bourgeoisie, which owns the means of
production, and Proletariat, which is propertyless. The classes have opposing interests, and the
Bourgeoisie controls the Proletariat.
Marx asserts that the material economic conditions of society determine what type of state will
develop. The state first and foremost fulfills an instrumental function in trying to moderate the
conflicts of class-societies. The state exercises its power by dividing its subjects according to territory,
by the exercise of public power (means of coercion), by demanding contributions from the citizens
(taxes) which become inadequate (public debts).
As the state arises to master class conflicts, the state represents and secures the power of the
dominant economic class, which now also becomes the politically dominant class. The democratic
republic is the most developed form of state development, for it totally disregards the property
distinctions which have arisen out of the division of labor, the production of commodities for
exchange, and the development of markets regulated by the blind laws of capitalism. In the end, the
state will fall and production will be collective.
Marx’s concept of the state is instrumentalist: “The modern state is only an executive committee for
administering the common business of the bourgeois class” (Manifesto). The state has nothing
whatsoever to do with principles of justice or ethics. The democratic republic, for instance, is the
highest form of state development, because it totally disregards the property distinctions which have
arisen out of the division of labor and the development of markets regulated by the laws of
capitalism. In the end, with the fall of the capitalist mode of production, the bourgeois state will be
overthrown.
In the end, Marx contends, since the contradictions of capitalism and the opposition between the
classes are inherent to the capitalist system and cannot be overcome within the system itself, modern
industry will compel society to do away with the division of labor and private property. This may be
achieved mechanistically (it will happen) or actively (stir the masses), but in any case, after capital is
liquidated, a communist mode of production will be introduced. The division of classes loses its
historical validity, and men can truly make their own history.
Marx sought to unmask the rule of law, the principle that it would be just that the law will be
exercised equally to all and would so contribute to enhance social justice. Specifically, Marx held that
capitalism created a legal system that 1). contributes to, and 2). legitimates the inequalities created by
economic conditions. With regard to (1) – legal system contributes to inequality (legal practice), Marx
noticed that law and justice benefit the bourgeoisie. Law is an instrument to further exploit the
working classes. Capitalist legislation and legal practice in general establish individual rights of
freedom which benefit those that have. For instance, the parties in a contract are equal before the
law, but in (economic) reality they are not equal. Or, the protection of private property benefits those
with much property. E.g., property laws benefit the owners. With regard to (2) – legal system justifies
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inequality (law as ideology). An ideology is a system of ideas with a very specific purpose, namely to
legitimate or justify existing conditions (or to criticize them). Thus, law is conservative, a bourgeois
ideology that justifies why things are socially organized as they are and make it accepted as right and
fair. For example, bourgeois ideas that justify the legalization of freedom rights or that conceive of
guilt as a relevant attribute of singular criminals are ideas from, and to the benefit of, the ruling
classes. Worse still, the working classes come to accept these ideas, think they are general ideas,
believe them to be right, and conceive them to contribute to the justice and happiness of all (ideology
is like opium).
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