1. Advanced Theory Locating Law (E. Comack)
CC 400

2. In order to understand the law/society relation, we need to place law within the nexus of race, class, and gender relations in society.
We should think of social theory as a “set of answers to questions we ask of social reality.”

3. Theory then, rather than being avoided, should be something that each of us closely interrogates. By doing so we have the potential to gain a clearer sense of not only our own, but also other peoples’ ways of making sense of the world.

4. While poverty, inequality, social conflict, and suffering are by no means new phenomena, they can take on specific forms under different social and historical contexts.
Theory is not static in one sense, it builds on previous works; it is a cumulative enterprise.

5. The Official Version of Law
Impartiality, neutrality, and objectivity may be viewed as the cornerstones of the modern legal system.
In both its form and method, law asserts its claim to be impartial, neutral, and objective.

6. The form of law is partly reflected in its adherence to the adversarial system. Law is set up as a contest between two parties, each representing its own version of events.

7. That judges are impartial in their decisions is reflected in the doctrine of the separation of powers: the legislature (maker of law) is separated from the judiciary (administrators of law).

8. There is also a legal mode of reasoning that is captured in the notion of legal positivism that asserts that the focus of legal players is on facts and not on values. The result is a neutral, value-free, and objective science of law.

9. Perhaps the most central doctrine is the rule of law which encompasses two broad claims:
Everyone is subject to the law.
The law treats everyone the same, as legal equals

10. In both its habit and form, the law promotes an image of itself as fair, disinterested, just.
In doing this, however, the law presumes the existence of a particular kind of individual and a particular form of society.

11. The subject of law is a universal, abstract individual.
This concept is historically specific – springing from Western societies.

12. It has emerged out a particular set of philosophical and theoretical ideas – a combination of elements drawn from conservative and liberal social philosophies

13. CONSERVATISM Finds its roots in 17th century writer Thomas Hobbes.
Man is characterized by self-interest, egoism and unlimited desire for personal gain.

14. The state of nature is typified as ‘war of all against all’.

15. Man’s saving grace was that he possessed reason, and reason told man that his interests would be best served through cooperation and through the formation of a society.

16. Men struck a social contract
Men struck a social contract. This social contract empowered the institutions of law and government to arbitrate the conflicts between individuals and to ensure and orderly, organized society.

17. The main function of the state was to preserve the rights and freedoms of individuals to pursue their material interests with minimum interference from the powers that be.
In the process, social order was maintained and upheld.

18. LIBERALISM
Has its roots in 18th century – Jean Jacques Rousseau and John Stewart Mill
Liberalism places heavy emphasis on rationality, that is, on the individual’s ability to think abstractly and objectively.

19. At the core of liberal thought is the belief in the rights and freedoms of the individual.

20. Best exemplified in Mill’s dictum “individuals should be free to pursue their own happiness so long as they do not infringe on the similar rights of others.”

21. The purpose of law is to allow individuals to realize these inherent rights and freedoms.

22. In the law’s view, individuals are separate, autonomous beings – legal subjects – who must be held accountable for their actions.

23. Traditional Approaches in the Sociology of Law
Functionalism – takes the Official Version of Law as a given.
Liberal Pluralism is more skeptical of its claims.
Marxism rejects law’s claims altogether.

24. The Functional Approach
Durkheim, Parsons, Merton, Albert Cohen (subculture theory) and Travis Hirschi (control theory).
Like the Official Version of Law, functionalism draws on elements of conservative social philosophy in formulating an image of human nature.

25. Durkheim was an advocate of the positivist method – understood as the position that it is possible to adopt the laws and methods devised to understand the physical world and apply them to an analysis of the social world in order to arrive at the ‘truth’ about human behaviour.

26. Theories that aim to understand the operations of different processes in society – like the law-society relation – are each premised on particular conceptions of what ‘society’, at a fairly abstract or general level, looks like.

27. In formulating their conception or image of society, functionalists utilize an organic analogy.

28. One implication of the conception of society is that, for analytical purposes, a particular institution, (like the legal system) can be separated out and studied in isolation from the others by looking at its structures and its functions.

29. Because the focus of the functionalist approach is so heavily centered on the sources of order in society, it is an approach that can not handle conflict very well.
Conflict, when it is recognized, tends to be viewed as either pathological (in the sense of being temporary), or as functional.

30. Likewise, functionalist are not well-equipped to handle an analysis of power. To the extent that they incorporate power into the analysis, they see it as a matter of societal domination – or the power or society over the individual.

31. Functionalists are aware of social inequalities – they understand inequality a both ‘natural’ and ‘functional’.
Inequalities are natural in the sense that they emerge out of inherent or innate differences between individuals and groups (like those based on sex or race).

32. Inequalities are functional because in a healthy and stable society, individuals know their place, they have a duty to fit in and perform their assigned tasks.

33. Because functionalists see culture or the normative system of society as the main force of social integration or cohesion, they necessarily see law as an important integrating mechanism.
For the functionalist, law both represents and reinforces the collective conscience of society.

34. In applying the organic analogy, Durkheim suggested that law plays a role analogous to the central nervous system in an organism
Durkheim’s view on crime is also instructive. Crime is defined as the sanctions imposed.

35. That is, crime is an action that elicits punishment.
Crime consists of acts that are universally disapproved of by members of society.
Punishment against crime, according to Durkheim, takes the form of vengeance. It avenges the moral outrage aroused by the criminal.

36. It is a means of defense for society and the collective conscience.
This is where the role of the state enters. Because crimes are behaviours thought to be so serious as to threaten the entire society not just the victim, it falls to the state, as the representative of members of society, to take action against the offender.

37. In this respect, functionalism conceptualizes the state as a neutral force operating on the behalf of society as a whole.
The state’s primary function is that of social control: ensuring individual conformity to the normative system.

38. Because functionalism locates law as the institutional expression of the norms and values of the majority, the approach does not need to question the Official Version of Law.

39. For instance, with regard to criminal law, functionalists make no attempt to question the political nature of crime – to question whether definitions of “what is criminal” provide a means by which one segment of a population controls or manages another.

40. Instead their focus turns to the criminal offender and questions the causes of an individual’s inability to conform to the norms and values that everyone else in society deems acceptable.

41. Over-riding the explanations for the causes of crime is the assumption that crime in a lower-class phenomenon.
Since the structure of society goes unexplained, social problems like crime come to be viewed as the problems of certain groups or individuals who fail to fit the requirements of the social order.

42. Solutions proposed tend to focus on policies of re-socialization or rehabilitation, increased social control (for example, more police) and harsher penalties for wrong-doing (such as lengthier prison terms and capital punishment).

43. The Liberal-Pluralist Approach
Finds its roots in the work of Max Weber, the Chicago School (Mead and Cooley), and in criminology – Edward Sutherland’s differential association theory and in labeling and group conflict theory.
Liberal pluralism does not go as far as the functionalist approach in its acceptance of the Official Version of Law.

44. However, though more skeptical, the liberal pluralist approach is, in an overall sense, compatible with the functionalist approach.

45. They view human as naturally competitive and power-seeking: everyone wants the most out of life and aspires to be number one.
At the same time, however, individuals are possessed with certain innate human rights and freedoms that can only be realized through society.

46. The task, therefore, is to ensure that the competition between individuals is fair and that society is organized in the way that is most amendable to realizing these rights and freedoms.

47. In contrast to the functionalist perspective, liberal pluralism does not make the assumption of a consensus of dominant norms and values in society.
Instead they view society as consisting of a plurality of competing interest groups, each on intent on realizing their particular interests or goals.

48. Weber, for example, posited that the competition for power occurs within the stratified order of society.
Weber conceptualized stratification along three dimensions.

49. Power in society derives from three different sources and the amount of power an individual possesses is related to his/her standing along each of the three orders.
An economic order: which features classes.
A social order: which features status groups.
A political order: which features parties.

50. Since the sources of power are multi-dimensional, no one variable is seen as ‘determining’.
Liberal pluralism is better equipped than the functionalist perspective approach to handle an analysis of conflict and power.

51. However, the liberal pluralist approach sees conflict largely in cultural terms, as a conflict of interest between competing groups in society.
It views power largely at the interpersonal level.

52. While the liberal view of society sees power and conflicts as integral components, consensus is also prominent.
While functionalists are inclined to view inequality as the product of ‘natural’ differences between individuals, and an inevitable feature of modern society, liberal pluralists hold a different view.

53. They see the existence of a structure of inequality – that certain positions in society have more rewards and privileges attached to them – as an inevitable feature of modern society.

54. But while such structural inequalities are inevitable, liberal pluralists assert that a just society is one in which the competition for power and privilege is fair.
In other words, a just society is where people should have equal opportunity to compete for unequal rewards.

55. In this regard, liberal pluralists are inclined to view the state as an impartial umpire whose job it is to channel and adjudicate social conflicts.
Different individuals and groups will compete with one another to use the state to their advantage in the realization of their own interests.

56. A primary role of the state then, is to provide the rules of the game by which this competition is played out.
Liberal pluralists see law as an autonomous sphere in society.

57. Law can be (but necessarily) influenced by economic factors and it can also influence economic activity.
In what is similar to the view of the state as an arena in which political power is contested, modern liberal pluralists view the law as one more form or dimension of power.

58. In contrast to the consensus-oriented view of the functionalists, liberal pluralists posit law as a reflection of power differentials in society.
Accordingly, crime is not an inherent property of individuals, but a status conferred on the individual by those who make and enforce rule (ie Howard Becker’s labeling theory).

59. For liberal pluralist, then, crime and deviance are social creations.
As a result, the emphasis within liberal pluralism is shifted away from the etiology (or causes of criminal behaviour) as in the functionalist approach, and towards the processes by which particular acts come then to be defined as criminal.

60. By attending to the concepts of power and conflict, a liberal pluralist analysis of the law-society relation offers a number of advantages over the functionalist approach.
It directs attention towards the question of the origins of law.
By attending to the political nature of crime, liberal pluralists have been led to investigations of how those who enforce and administer the law (police and judges) exercise their discretionary power.

61. 3. By shifting the focus away from the criminal offender towards the question of the social creation of crime, liberal pluralism helps to mitigate the lower-class bias found within the traditional functionalist accounts.

62. For example: Edward Sutherland (1961) was instrumental in directing criminologists to ‘look up’ the class ladder to examine the actions of white-collar offenders.
Despite the advantages, the liberal pluralist approach has a limited explanatory power because of how it treats power and conflict.

63. Despite the advantages, the liberal pluralist approach has a limited explanatory power because of how it treats power and conflict.
It fails to adequately clarify the source of power (they deem how authority becomes authority is irrelevant).

64. 2. While liberal pluralists have generated research on the operation of the criminal justice system - the use of police discretion, sentencing practices – their tendency to remain a the interpersonal level has led to a failure to consider how the working of the various agents of social control are influenced by the overall structure and operation of the state in modern society.

65. 3. The reluctance of liberal pluralists to single out any one variable as determining or primary leads to eclecticism in addressing questions about the relation between law and other structures in society – especially the economic sphere.

66. Liberal pluralists open the way for a critique of the rule of law doctrine.
If laws originate from the moral inclinations of the more powerful in society, and if agents of law (police and judges) utilize their discretionary powers in ways that might disadvantage those with whom they come into contact, then is justice really blind?

67. Liberal pluralism simply asserts that consensus exists, it does not question the basis on which it rests. Where does consensus come from? Why does everyone agree with the rules?

68. Similarly, although liberal pluralists begin to question blind justice, they frame the analysis at the interpersonal level (as competition between individuals and groups) and do not extend that analysis to the structure or framework of society.

69. In response to the perceived shortcomings of the liberal pluralist approach theorists studying the law-society relationship where increasingly drawn towards a Marxist analysis.

70. Until the 1970s much of the work on the law-society relationship had centered around the study of crime.

71. The shift towards a Marxist perspective led to a different orientation.

72. Because Marxism is a theoretical approach that directs attention to the broader structural features of society, it became increasingly evident that a more comprehensive understanding of the phenomena of crime required an investigation of the wider social, political, and economic factors impinging on it.

73. Consequently, the focus was no longer on crime per se, but on situating law – both civil and criminal – within the context of the role of the state in a capitalist society.

74. In their examination of the law-society relationship, Marxist raised the issue of the class character of law under capitalism.

75. The Marxist Approach
Dates back to the 19th century – roots in the work of Karl Marx and extends into the 20th century with the works of the Neo-Marxists and the emergence of the new left in the 1960s.

76. In criminology the 1970s saw the development of a radical or critical criminology that, in its initial stages, consisted of a critique of liberal pluralism (labeling and group conflict theories) for not going far enough in their assessment of the functionalist approach.

77. While functionalist approaches can be characterized by the acceptance of the Official Version of Law and liberal pluralism by its more skeptical stance, the Marxist approach is notable for its rejection of law’s claims.

78. The Marxist approach starts from an assumption opposite to that of functionalism, instead of stability and consensus, society is characterized by conflict, antagonism, and exploitation.

79. Moreover, in contrast to the liberal pluralist approach, conflict is rooted not in cultural factors like ‘interests’ but in the very structure of society.

80. Key to the Marxist conception of society is the idea that the economic variable is the ‘determinant in the last instance’.

81. In the Marxist conception, society consists of an economic base, or infrastructure, out of which arises the superstructure – or other institutions and social processes of society (such as the legal, political, familial, and religious spheres).

82. For Marx, the relationship between the base and superstructure is dialectical: the superstructure arises out of the economic base but once created acts back to reproduce it.

83. Given the position of dominance of one class over another in the economic sphere, the other spheres and processes in society will be organized to serve the interests of the dominant class.

84. In other words, within the superstructure, the kind of legal system, the form of the family, the nature of education will operate in accordance with the interests of the dominant class.

85. In a Marxist approach, because the economic variable is viewed as primary, it becomes impossible to study other segments of society – like law – in isolation from the economic

86. Rather, law must be understood in relation to the economic sphere.
The Marxist approach also sees inequality, conflict and power in structural terms, as class inequality, class conflict, and class domination.

87. Accordingly, consensus is not a ‘natural’ condition: it has to be continually manufactured or created.

88. Marx’s own writings did not include a coherent theory of the state, so that became the task of later Marxist theorists.
Generally speaking, these writers started from the fundamental observation that the state in a capitalist society broadly serves the interest of the capitalist (ruling) class.

89. From this similar starting point came two different theories of the state:
Instrumental Marxism
Structural Marxism

90. While studying the law-society relationship, theorists used instrumental and structuralism to address the class character of law under capitalism

91. Instrumental Marxism
Instrumental Marxism posits that the state acts at the behest or command of the capitalist class.

92. This interpretation is based on the idea that the processes of the superstructure are determined by the economic base.

93. As such, institutions within the state are tools that can be manipulated by the capitalist class as a whole.

94. In essence, instrumentalist posited a direct correlation between class power (ownership of the means of production) and state power.

95. Within this perspective the instrumentalist would argue that law itself is a weapon of class rule.

96. The focus was on the coercive nature of law, whereby they say law and legal order as a direct expression of the economic interests of the ruling class – a means of protecting property and consolidating political power. Some writers even went so far as to claim that capitalist class member were immune from criminal sanction (Quinney 1975, Chambliss 1975).

97. By directing attention to the linkages between class power and state power, instrumental Marxists called attention to the actions and behaviours of ruling-class members.

98. In particular, the legal definition of crime came under close scrutiny, especially in the context to which the criminal law excluded a range of behaviours harmful and threatening to members of society.

99. This led to an examination of crimes of the powerful, including price-fixing, production of faulty consumer products, environmental pollution, and governments corruption (see Goff and Reasons (1978); Snider (1978); Pearce (1976)).

100. Instrumental Marxism was not without its shortcomings
Viewing the state as an instrument or tool of the ruling class does not allow for systematic analysis of how actions and strategies of various ruling-class groups are limited by constraints inherent in the structure of society.

101. 2. To say the law is a weapon of the ruling class implies not only that the ruling class is a united whole, but also that it is so powerful that it will be able to ensure that the state will always legislate in its favour.

102. 3. Instrumental Marxism display an insensitivity to the conditions and processes that legitimate democratic capitalist societies.

103. Structural Marxism
By the late 1970’s, Marxist theorists were moving away from the conspiratorial account of the capitalist state.

104. In rejecting the notion of the state as an instrument or toll of the ruling class, structural Marxists put forward the view that institutions within the state provide a means of reproducing class relations and class domination under capitalism.

105. Structural Marxists do not agree that the state acts on the behest of the capitalist class, but instead on behalf of capital

106. The role of the state, in carrying out its role as mediator and organizer, as performing particular functions, which were broadly subsumed under the headings of accumulation and legitimation.

107. Accumulation includes activities in which the state is involved, either actively or passively, in aiding the process of capital accumulation (or wealth generation). In short, the state must try to create and maintain the conditions under which profitable accumulation or capital is possible.

108. Legitimate refers to state activities that are designed to create and maintain conditions of social harmony.

109. “It must try to win the loyalty of economically and socially oppressed classes and strata of the population to its programs and its policies it must attempt to legitimate the social order” (O’Connor 1973:79).

110. The relationship between accumulation and legitimation are dialectical; nearly every agency or institution within the state is (often simultaneously) involved in both activities.

111. To carry out its role the state needs a certain degree of autonomy, not from the structural requirements of the economic sphere, but from the direct manipulation, of its activities by the dominant class.

112. In this way the state is able to transcend the parochial interests of particular capitalist class members and thus ensure the protection of the long term interest of capitalism (Poulantzas 1975).

113. The relative autonomy of the state can therefore account for the presence of laws that favour workers (i.e. minimum wage laws). And those laws designed to control the actions of capitalists (i.e. restrictions on environmental pollution or anti-combine legislation).

114. The structural Marxist emphasis on the role of the state as organizer and mediator – framed in terms of the dialectical interplay between the economic base and political and legal superstructure – led to more sophisticated analyses of law-making than those offered by instrumental Marxist.

115. William Chambliss (1986) suggested that the basic conflict between capital and labour creates, in different historical periods, particular conflicts and dilemmas to which the state has to respond.

116. One response is to create legislation
One response is to create legislation. According to Chambliss, however, the laws that are created are not designed to resolve the basic contradiction, but only the conflicts and dilemmas that emerge from it. Law is only a “symptom-solving mechanism.”

117. Far from resolving the basic problems in the system, it creates the conditions for the emergence of new conflicts and dilemmas later on down the road. (see Comack 1991, Smandych 1991)

118. Whereas instrumental Marxist concentrated on the coercive nature of law, structuralists extended the analysis to include an examination of the ideological nature of law and legal order.

119. In essence then, structural Marxist suggest that law legitimizes the dominance of one class over the other by appealing to the very democratic principles that are thought to guide against such bias.

120. Structuralist Marxist recognize the existence of “class fractions” within the dominant class. The state, as such, was not simply an instrument or tool, but an organizer.

121. Because consent was not an automatic condition, but had to be continually constructed, structuralists focused attention on the processes by which hegemony was realized.

122. The attention to the ideological role of law enabled the structuralists to better reconcile the class-based with the existence of democratic ideals and principles (like equality and justice) that the legal order claims to uphold.

123. Yet structured Marxism also had its limitation.
While instrumentalism was criticized for its overemphasis on capitalist class input into and control over the state, it could be argued that the structuralist account went too far in the other direction: it is the constraints and limitations of the structure – not human agency – that determine the direction of society.

124. 2. In a similar vein, the concept of relative autonomy has been criticized, in that the theory does not convincingly explain the specific factors that determine the states degree of autonomy from economic relations.

125. 3. As it stands, the focus on the accumulation and legitimation functions of the state leads to a kind of circular reasoning; any concessions made to workers are indicative of the legitimation function, while gains made by capitalists are attributed to the state’s concern with maintaining capital accumulation.

126. The Marxist approach, then, is intensely critical of the law’s claims to impartiality, fairness, and objectivity.

127. From the Marxist perspective the Official Version of Law is a form of ideology; a particular valve-laden position that has the effect of legitimating a system of unequal social positions.

128. Marxist also call into question the autonomy of law.

129. The Marxist critique of the Official version of Law stimulated debate over the potential for law as an agent of social transformation.

130. Highlighting the contradictions and inconsistencies – the inherent tensions – built into the Official Version of Law offers the possibility of developing a “jurisprudence of insurgency” to undermine the social relations of capitalism (Brickey and Comack 1987).

131. During the 1980’s Marxist theorizing on law continued to be altered and reformulated (see for example: Mondel 1986; Ratner and McMullen 1987; Glasbeek 1989; Snider 1989).

132. What was the noteworthy about much of his work was that it framed the fundamental question, or problematic, in terms of class relations.

133. By rooting inequality in the economic sphere, and by defining power in terms of relations between dominant and subordinate classes, the Marxist formulation went beyond the functionalist and liberal-pluralist accounts in clarifying the systemic nature of inequality and how it is reproduced at the superstructural level.

134. In doing so, it effectively made other dimensions of inequality – specifically gender and race – into contingent variables.

135. This feature was not lost on many of the Marxist analysts and as the 1980’s drew to a close an increasing consensus developed among those working in the tradition that their fundamental question was in need of re-working.

136. The primary stimulus for the rethinking of the Marxist approach came from the challenge of the feminist movement.