Law in social theory

Question

The aim of this is to demonstrate your familiarity with the different theories
and theoretical schools covered in this subject, to demonstrate your ability to
apply these to your chosen case study, to consider the insight these theories
bring to your case study, and to demonstrate your engagement with the key
concepts and themes of the course.

Minimal and adequate referencing will be required for all answers. Each answer requires a separate reference list.

Question 1 (350 words)

Choose one theorist from the following:

Niklas Luhmann
Jürgen Habermas
Pierre Bourdieu
Jacques Derrida

Apply the theorist to your case study, outlining how the theorist would explain your case study. Case study URL: http://www.smh.com.au/news/National/Newspaper-fined-for-sex-discrimination/2005/03/08/1110160814004.html

What we are interested in is your application of the theory to your case study.
Make sure this is your focus. We are not interested in a discussion of the theory as a whole.

Question 2 (350 words)

Choose one theorist/ theoretical school from the following:

Critical Legal Studies
Legal Pluralism (��Classic’ and ��New’)
Eugen Ehrlich & Leon Petrazycki

Apply the theorist/ theoretical school to your case study, outlining how the theorist/ theoretical school would explain your case study. Case study URL: http://www.smh.com.au/news/National/Newspaper-fined-for-sex-discrimination/2005/03/08/1110160814004.html

What we are interested in is your application of the theory to your case study.
Make sure this is your focus. We are not interested in a discussion of the theory as a whole.

Question 3 (1,300 words)
Short Essay

Answer one of the following two questions:

��Law creates authoritative reality’. Discuss.

OR

��Law is a key steering mechanism in society’. Discuss.

In your discussion, you must use only 2 of the theorists/theoretical schools. (ANY OF THOSE MENTIONED ABOVE, BUT NOT THE SAME TO THOSE TWO USED FOR THE EARLIER QUESTIONS),
The 2 discussed must be different from the ones chosen for Questions 1 and 2.

Legal Pluralism and Globalisation are together considered to be one theoretical school, Marx, Durkheim, and Weber are together considered to be one theoretical school and Eugen Ehrlich & Leon Petrazycki are together considered to be one theoretical school.

Answer

Name of student:

Course name:

Class name:

Date assignment due:

Contents

Question 1: Niklas Luhmann. 2

Question 2. 4

Legal Pluralism (classic and new). 4

Question 3. 5

Law is a key steering mechanism in society: Jürgen Habermas and Eugen Ehrlich & Leon Petrazycki 5

Jürgen Habermas. 5

Eugen Ehrlich & Leon Petrazycki 8

References. 10

Question 1: Niklas Luhmann

Niklas Luhmann considers law to be of social character. However, the law is also distinct from the environment (Banakar & Travers, 2002, p. 173). As a social entity, the forms of communication in law must not be so abstract as to be removed from regular intelligible meanings. The case study involving the fining of Courier Newspapers presents an example of how the language used in law is a reflection of social reality.

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In the Courier Newspapers legal case, the publishers were fined a total of $6,825 for discriminating against a female employee because she was a woman. The publisher of the newspaper was found to have violated the NSW Anti-Discrimination Act by the victimization of Christine Thompson. The female employee was treated less favorably than the other employees because of her sex.

The words used by the tribunal reflect the social setting in which the law is being applied. The language used is comprehensible, and it is meant to be that way. Additionally, the judgment, according to the tribunal is meant to be a lesson to other corporations where discriminatory practices are widespread.

The character of the law is distinct from the context in which it is applied is clearly demonstrated in the ruling. The tribunal asserted its authority to determine what is lawful and what is not. For instance, the court held that it was unlawful for employees to view pornographic images of women in a workplace setting. The proclamation was clearly suited to the context of the case, considering that even the viewing pornographic images of men in the workplace also amounts to unlawful action. For purposes of fitting the law into the social environment in which it was being applied, the tribunal gave reference to women only.

The ruling, by not being overly illustrated represents the importance of adapting the law to the social context in order for everyone in society to understand it. This conforms to Niklas’ view that the law should be interpretive in order to succeed in its pragmatic and functional role. As an agent of social revolution, the law was used in the Thompson v Courier Newspapers to show that adiabatic systems can be used to bring about social change through constructing and altering structures.

Question 2

Legal Pluralism (classic and new)

Legal pluralism refers to the existence of many legal systems within a single geographical area, especially in many post-colonial societies, where the law of the former colonial power may exist alongside traditional legal systems. In these societies, the main idea for allowing legal pluralism is that certain issues, such as commercial transactions would be adequately covered by the existing colonial law. On the other hand, other issues such as family and marriage would be covered using traditional legal systems. However, within societies where legal pluralism exists, people have developed a tendency to choose the legal system that they would want to be subject to, depending on the nature of their complaints (Banakar & Travers 2002, p. 243).

In the context of the Thompson v. Courier Newspapers case, it is clear that both the new and classical pluralist approaches to the law were adopted. The issue of gender discrimination may be addressed within either new or classic or new legal pluralism. In the context of new legal pluralism, the emphasis is on the corporate setting in which the breach of the NSW Anti-Discrimination Act occurred. In the context of classical legal pluralism, the emphasis would be on the moral aspect of gender discrimination in the society within which the corporation operates.

The concept of new legal pluralism mainly pertains to western societies such as Australia, where the alignment to the school of critical legal is always overt. The case of Thompson being discriminated against and the legal redress that she gets underscores the difficulties that exist in differentiating between notions of classic and new legal pluralism.

The question of whether homogeneous societies exist is extremely critical in assessing the grounds for the formation of anti-discrimination legislation such as the NSW Anti-Discrimination Act. The existence of parallel sentencing systems in Australia is an indication of the existence of heterogeneous societies and the corresponding necessity for parallel forms of sentencing.

Different societies in Australian handle the issue of gender discrimination in unique ways. For instance, the Aboriginal traditional law setting contains standards for gender relations that are different from the ‘new legal pluralism-based’ approaches, such as the NSW Anti-Discrimination Act. The NSW Anti-Discrimination Act is meant to guarantee equal treatment of everyone in the workplace regardless of the social background and the legal systems that apply in that social background.

Question 3

Law is a key steering mechanism in society: Jürgen Habermas and Eugen Ehrlich & Leon Petrazycki

Jürgen Habermas

Jürgen Habermas assesses the role of the law in society as part of his theory of communicative action.  Habermas argues that the legal system should be separated from the life-world for the law to be a steering mechanism in society. This, according to him, can only be done through the separation of law from morality (Banakar & Travers, 2002, p. 76). Legal processes facilitate the explanation of current manifestations through which the life-world in western societies has been colonized by law.

According to Habermas, the law normatively anchors or institutionalizes the independent function of the steering power and money. The legal norming of power and money is extremely critical to bringing about stable societies that are founded on sound political systems. Through a historical account, Habermas explains the manner in which the law steers both media (money and power) in order to stabilize the political structures of every society.

From the historical point of view, the political system was first differentiated following the crystallization of authority around judicial positions that held the means of force. As different political offices continued to be separated from each other, the level of political complexity continued to grow, eventually maturing into the modern state.

In the context of all the societies that were organized the state, markets emerged that was being steered by the medium of money. In order to create a system or mechanism of mutual understanding, a legal system became necessary. This, according to Habermas, is the basis upon which the law continues to steer today’s market-based society.

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Law is the institution that establishes a normative ‘anchoring’ system through which the society is steered in the right way. This ensures that the medium of money and power is utilized in a stable environment. In other words, it is only when the respective media have been legalized that robust exchange relations can exist. Exchange relations are often regulated through proper and contract laws. On the other hand, the powerful medium of the society’s political system has to be normatively anchored through the institutionalization of the organization of official positions indifferent bureaucracies.

Therefore, separation of law and morality is necessary for the steering function to be achieved. Similarly, public law should be separated from private law. The achievement of the separation of law from morality arises when abstract principles that can be criticized are used to bring about legal and moral representations. These abstract principles, according to Habermas, are better compared to values that are rigidly tied to concrete ethical traditions. In this way, morality is treated as a personal matter whereas the law is treated as a social institution that has an external force that materializes abstract normative standards for use by everyone in society.

The underlying argument in the role of the law in steering the society is that the law can be formally conceived as an institutionalization of discourse on practical, social norms. Habermas acknowledges that modern law in today’s western societies is positive, legalistic and formal. It is positive in the sense that it expresses the will of the sovereign lawgiver. It is legalistic in the sense that it applies to deviations from norms. It is formal in the sense that whatever is not legally forbidden is allowed. In this sense, modern law is a positive functional and technical system that appears to have suspended the need for any form of moral deliberation.

From the positive perspective of legal order in society, the problems of justification are displaced. In other words, the technical administration of the law is relieved of these problems over other broad expanses. Modern law as a whole remains in dire need of justification and criticism, precisely for purposes of unveiling its systematic nature. Such justification and criticism, according to Habermas, should be done under the abstract conditions of different validity claims on normative rightness.

The second role of the law, says Habermas, is based on the thesis of internal colonization of the life-world. He draws on a critical discussion of various processes of juridification in Europe’s history. Justification simply refers to an increase in the use of formal law through measures such as the expansion of positive law. In this way, social relations are legally regulated, whereas legal regulations become more detailed.

Habermas identifies four waves that characterize the juridification process in European welfare states’ history. The first wave was characterized by the formation of abolitionist states, which had the sovereign monopoly over force. They also had contractual rights and obligations of overall private persons. They also legitimized the coexistence of the free-enterprise market with a strong monarchical state. The second wave was characterized by the formation of the bourgeois constitutional state in the 19th century, whereby individual rights were gradually regulated against the monarch’s political authority. During this wave, the right to life, property, and liberty was constitutionally guaranteed. Next, a wave of the democratic, constitutional state emerged, which was triggered by the French Revolution. In this case, the power of the state was democratized. Finally, the social welfare state arose during the 20th century. Social rights and individual freedoms were legislated against the backdrop the core legally entrenched imperatives of the free-enterprise market. In all these waves of juridification, the law has been a key steering force for protecting individual rights against abuse by sovereign powers, albeit to varying degrees.

Eugen Ehrlich & Leon Petrazycki

According to Petrazycki, the reality of law exists in the factual experiences of that law on the part of human beings. On his part, Ehrlich argues that the whole of law dominates social life, thereby coining the term ‘living law’. Ehrlich refers to the whole of the legal propositions that dominate man’s social life as a juristic law. Ehrlich points out that the living law can rule only where state operations are in support of the inner order of associations.

Ehrlich’s work on the sociology of law is considered to be the first step towards the journey of steering the society towards the acceptance of a unified system of governance. Ehrlich rejected the idea that was predominant among jurists of his time that each judicial decision had to be derived from a purely logical process. Instead of over-reliance on legal codes, statutes and the provisions that they contained, Ehrlich proposed the interrelations between the law and the social setting in which it was applied.

According to Ehrlich, courts are not formed as organs of the state; they are formed as organs of the society. Originally, courts were meant for the purpose of determining whether a conflict between people of different associations could be settled through payment of a penalty. Such courts could only do this work upon the authority that was given by families and clans that were in a close relationship with one another. It is only much later on when courts were erected for purposes of determining solutions in matters that were in the interest of the state. Examples of these matters include an assassination attempt on the king, violation of military order and trading ties with an enemy state. Although the state gains the control of the formal court in this instance, the distinction between the administration of justice by the state and the society continues to this day (Banakar & Travers 2002, p. 281).

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Although the distinction between the criminal and civil causes has always remained clear in terms of jurisdiction, there has been a situation where one causes encroach on the functions of the other. This has manifested through take-over of criminal cases by the society or state’s takeover of the progress of civil case hearings. However, at no time has the state gained control of former class courts. On the contrary, society has always had a significant influence on the steering of the justice process.

For Petrazycki, legal impulsions are of critical benefits and they perform essential functions in every society. Through legal impulsions, both power and wealth are distributed fairly in society. Additionally, in terms of the corresponding coordination of action, the uniformity of impulsions leads to improvement in economic and political behavior in society.

References

Banakar, R, & Travers, M, 2002, An introduction to law and social theory, Hart Publishing, London.

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