Law and Sociology Flashcards
What is meant by the social?
How law works in society itself=
- Deterrent
- Confirms power and relationships to power
- How justice actually operates
5 important academics on sociology
MARX WEBER DUKHEIM FOUCOULT HABBERMAS
How does MARX use law?
To understand and clarify the critique of capitalism -> it reproduces itself through law so indirectly influences all of society
What did MARX mean when he said the law has a capacity for ‘violence’
Not necessarily just physical violence:
- Ability to silence individuals who disagree with system by prison etc
- Has a monopoly on physical violence through institution such as the police
What did MARX think about the idea of human rights?
They were a hollow/imagined concept as under a capitalist system they only go as far as man as an individual, ‘egotistical man’
-> Can never offer true human emancipation whilst underpinned by capitalism
How did WEBER approach capitalism?
- In order for system to work it relies on a working class, likely to reject?
- Raises questions of AUTHORITY
What is the transition in authority in modern times?
- Previous reliance on charismatic leaders to legitimise ideologies
- Now we have the rational bureaucracy of a legal system, that regulates even those in power
WEBER’s 3 key providers of stability in society
i) Independent professional judiciary
ii) Separation of powers = checks and balance
iii) Legal legitimacy of democracy
What does DURKHEIM focus on in his sociological approach to the law?
Issues of individualism and its consequences = fragmentation of society
What does DURKHEIM mean by ‘fragmentation of society’?
- Rise of individualism as a response to constraints on working class
- Class divide and question of how societal bonds can be maintained when there is such a divide
What is DURHEIM’s only option to achieve social cohesion
Only can be done through secular morality
What other forms of social control does DURHEIM acknowledge?
Families, institutions, schools, workplaces
How does he compare law to reliogion?
Law is the new god, society as a whole no longer worships a god so worships itself instead
= the cult of the individual
How does FOUCOULT address law and power?
How society treats the law reflects how society perceives power
How does FOUCOULT suggest institutions are able to influence society?
- Institutions have influence over those in power, and those in power influence the law
- Institutions can indirectly influence law
4 key tools to understanding sociology as suggested by FOUCOULT
1) Archaeology
2) Genealogy
3) Discourse
4) Power/knowledge
How does FOUCOULT explain relationship of power and knowledge
- Those in power fundamentally influence knowledge
- Those with the most power are able to dictate knowledge by regulation of public institutions
- Power can exist without knowledge, but knowledge cannot exist without power
What is meant by law as a negative power?
- It is only the negative aspects of law that can be enforced to regulate society
- Law provides discipline and the power to enforce this via institutions
What are the consequences of a post-modern interpretations of the law?
- Law becomes increasingly subjective and individualism grows
What are potential dangerous of rampant individualism? (as caused by fragmentation of society due to power imbalances of capitalism)
- Rise of populism, sadly tends to go one of two ways, normally right = can be dangerous
- Loss of identities of belonging
HABBERMAS’s 3 spheres of law?
1) PUBLIC SPHERE = public institutions
2) PRIVATE SPHERE = the economy and the family
3) POLITICAL PUBLIC SPHERE = power
What does HABBERMAS mean by refeudalisation?
Increased merging of private and public spheres as well as the merging of state and society
-> Return to less democratic times
School of philosophy known for left wing thinkers?
Frankfurt School
How does HABBERMAS explain conflicts between theory and reality ?
‘life world’ vs ‘the system’
Why does HABBERMAS consider over-moralising law to be dangerous?
- Could result in rejection of secularism (the only way for social cohesion - DURKHEIM)
- Stresses law should still come from a moral standpoint, only that it should not be taken too far
What is communicative action?
Communication plus activism
How did FOUCOULT (sligty ridiculously) regard the law?
‘the great transformer’
- Out of touch with reality as this would only work in a truly rational society
- Similar to MARX but less aware of the flawed nature of society
