Advanced TheoryAdvanced TheoryLocating Law (E. Comack)Locating Law (E. Comack)

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• In order to understand the In order to understand the law/society relation, we need to law/society relation, we need to place law within the nexus of race, place law within the nexus of race, class, and gender relations in class, and gender relations in society.society.

• We should think of social theory as a We should think of social theory as a “set of answers to questions we ask “set of answers to questions we ask of social reality.”of social reality.”

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

• While poverty, inequality, social While poverty, inequality, social conflict, and suffering are by no conflict, and suffering are by no means new phenomena, they can means new phenomena, they can take on specific forms under different take on specific forms under different social and historical contexts.social and historical contexts.

• Theory is not static in one sense, it Theory is not static in one sense, it builds on previous works; it is a builds on previous works; it is a cumulative enterprise.cumulative enterprise.

The Official Version of LawThe Official Version of Law

• Impartiality, neutrality, and Impartiality, neutrality, and objectivity may be viewed as the objectivity may be viewed as the cornerstones of the modern legal cornerstones of the modern legal system.system.

• In both its form and method, law In both its form and method, law asserts its claim to be impartial, asserts its claim to be impartial, neutral, and objective.neutral, and objective.

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

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

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

• Perhaps the most central doctrine is Perhaps the most central doctrine is the the rule of lawrule of law which encompasses which encompasses two broad claims:two broad claims:

1.1. Everyone is subject to the law.Everyone is subject to the law.

2.2. The law treats everyone the same, The law treats everyone the same, as legal equalsas legal equals

• In both its habit and form, the law In both its habit and form, the law promotes an image of itself as fair, promotes an image of itself as fair, disinterested, just.disinterested, just.

• In doing this, however, the law In doing this, however, the law presumes the existence of a presumes the existence of a particular kind of individual and a particular kind of individual and a particular form of society.particular form of society.

• The subject of law is a The subject of law is a universal, universal, abstract individualabstract individual..

• This concept is historically specific – This concept is historically specific – springing from Western societies.springing from Western societies.

• It has emerged out a particular set of It has emerged out a particular set of philosophical and theoretical ideas – philosophical and theoretical ideas – a combination of elements drawn a combination of elements drawn from from conservativeconservative and and liberalliberal social social philosophiesphilosophies

CONSERVATISMCONSERVATISM

• Finds its roots in 17Finds its roots in 17thth century writer century writer Thomas Hobbes.Thomas Hobbes.

• Man is characterized by self-interest, Man is characterized by self-interest, egoism and unlimited desire for personal egoism and unlimited desire for personal gain.gain.

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

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

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

• The main function of the state was to The main function of the state was to preserve the rights and freedoms of preserve the rights and freedoms of individuals to pursue their material individuals to pursue their material interests with minimum interference interests with minimum interference from the powers that be.from the powers that be.

• In the process, social order was In the process, social order was maintained and upheld.maintained and upheld.

LIBERALISMLIBERALISM

• Has its roots in 18Has its roots in 18thth century – Jean century – Jean Jacques Rousseau and John Stewart Jacques Rousseau and John Stewart MillMill

• Liberalism places heavy emphasis on Liberalism places heavy emphasis on rationality, that is, on the individual’s rationality, that is, on the individual’s ability to think abstractly and ability to think abstractly and objectively.objectively.

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

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

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

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

Traditional Approaches in the Traditional Approaches in the Sociology of LawSociology of Law

1.1. Functionalism – takes the Official Functionalism – takes the Official Version of Law as a given.Version of Law as a given.

2.2. Liberal Pluralism is more skeptical Liberal Pluralism is more skeptical of its claims.of its claims.

3.3. Marxism rejects law’s claims Marxism rejects law’s claims altogether.altogether.

The Functional ApproachThe Functional Approach• Durkheim, Parsons, Merton, Albert Durkheim, Parsons, Merton, Albert

Cohen (subculture theory) and Travis Cohen (subculture theory) and Travis Hirschi (control theory).Hirschi (control theory).

• Like the Official Version of Law, Like the Official Version of Law, functionalism draws on elements of functionalism draws on elements of conservative social philosophy in conservative social philosophy in formulating an image of human formulating an image of human nature.nature.

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

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

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

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

• Because the focus of the functionalist Because the focus of the functionalist approach is so heavily centered on approach is so heavily centered on the sources of order in society, it is the sources of order in society, it is an approach that can not handle an approach that can not handle conflict very well.conflict very well.

• Conflict, when it is recognized, tends Conflict, when it is recognized, tends to be viewed as either pathological to be viewed as either pathological (in the sense of being temporary), or (in the sense of being temporary), or as functional.as functional.

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

• Functionalists are aware of social Functionalists are aware of social inequalities – they understand inequalities – they understand inequality a both ‘natural’ and inequality a both ‘natural’ and ‘functional’.‘functional’.

• Inequalities are Inequalities are naturalnatural in the sense in the sense that they emerge out of inherent or that they emerge out of inherent or innate differences between individuals innate differences between individuals and groups (like those based on sex or and groups (like those based on sex or race).race).

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

• Because functionalists see culture or Because functionalists see culture or the normative system of society as the normative system of society as the main force of social integration or the main force of social integration or cohesion, they necessarily see law as cohesion, they necessarily see law as an important integrating an important integrating mechanism.mechanism.

• For the functionalist, law both For the functionalist, law both representsrepresents and and reinforcesreinforces the the collective conscience of society.collective conscience of society.

• In applying the organic analogy, In applying the organic analogy, Durkheim suggested that law plays a Durkheim suggested that law plays a role analogous to the central nervous role analogous to the central nervous system in an organismsystem in an organism

• Durkheim’s view on crime is also Durkheim’s view on crime is also instructive. Crime is defined as the instructive. Crime is defined as the sanctions imposed.sanctions imposed.

• That is, crime is an action that elicits That is, crime is an action that elicits punishment.punishment.

• Crime consists of acts that are Crime consists of acts that are universally disapproved of by universally disapproved of by members of society.members of society.

• Punishment against crime, according Punishment against crime, according to Durkheim, takes the form of to Durkheim, takes the form of vengeance. It avenges the moral vengeance. It avenges the moral outrage aroused by the criminal.outrage aroused by the criminal.

• It is a means of defense for society and It is a means of defense for society and the collective conscience.the collective conscience.

• This is where the role of the state enters. This is where the role of the state enters. Because crimes are behaviours thought to Because crimes are behaviours thought to be so serious as to threaten the entire be so serious as to threaten the entire society not just the victim, it falls to the society not just the victim, it falls to the state, as the representative of members of state, as the representative of members of society, to take action against the society, to take action against the offender.offender.

• In this respect, functionalism In this respect, functionalism conceptualizes the state as a neutral conceptualizes the state as a neutral force operating on the behalf of force operating on the behalf of society as a whole.society as a whole.

• The state’s primary function is that of The state’s primary function is that of social control: ensuring individual social control: ensuring individual conformity to the normative system.conformity to the normative system.

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

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

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

• Over-riding the explanations for the Over-riding the explanations for the causes of crime is the assumption causes of crime is the assumption that crime in a lower-class that crime in a lower-class phenomenon.phenomenon.

• Since the structure of society goes Since the structure of society goes unexplained, social problems like unexplained, social problems like crime come to be viewed as the crime come to be viewed as the problems of certain groups or problems of certain groups or individuals who fail to fit the individuals who fail to fit the requirements of the social order.requirements of the social order.

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

The Liberal-Pluralist The Liberal-Pluralist ApproachApproach• Finds its roots in the work of Max Weber, Finds its roots in the work of Max Weber,

the Chicago School (Mead and Cooley), the Chicago School (Mead and Cooley), and in criminology – Edward Sutherland’s and in criminology – Edward Sutherland’s differential association theory and in differential association theory and in labeling and group conflict theory.labeling and group conflict theory.

• Liberal pluralism does not go as far as the Liberal pluralism does not go as far as the functionalist approach in its acceptance of functionalist approach in its acceptance of the Official Version of Law.the Official Version of Law.

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

• They view human as naturally They view human as naturally competitive and power-seeking: competitive and power-seeking: everyone wants the most out of life everyone wants the most out of life and aspires to be number one.and aspires to be number one.

• At the same time, however, At the same time, however, individuals are possessed with individuals are possessed with certain innate human rights and certain innate human rights and freedoms that can only be realized freedoms that can only be realized through society.through society.

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

• In contrast to the functionalist In contrast to the functionalist perspective, liberal pluralism does perspective, liberal pluralism does not make the assumption of a not make the assumption of a consensus of dominant norms and consensus of dominant norms and values in society.values in society.

• Instead they view society as Instead they view society as consisting of a plurality of competing consisting of a plurality of competing interest groups, each on intent on interest groups, each on intent on realizing their particular interests or realizing their particular interests or goals.goals.

• Weber, for example, posited that the Weber, for example, posited that the competition for power occurs within competition for power occurs within the stratified order of society.the stratified order of society.

• Weber conceptualized stratification Weber conceptualized stratification along three dimensions.along three dimensions.

• Power in society derives from three Power in society derives from three different sources and the amount of different sources and the amount of power an individual possesses is power an individual possesses is related to his/her standing along related to his/her standing along each of the three orders.each of the three orders.

1.1. An economic orderAn economic order: which features : which features classes.classes.

2.2. A social orderA social order: which features status : which features status groups.groups.

3.3. A political orderA political order: which features parties.: which features parties.

• Since the sources of power are multi-Since the sources of power are multi-dimensional, no one variable is seen dimensional, no one variable is seen as ‘determining’.as ‘determining’.

• Liberal pluralism is better equipped Liberal pluralism is better equipped than the functionalist perspective than the functionalist perspective approach to handle an analysis of approach to handle an analysis of conflict and power.conflict and power.

• However, the liberal pluralist However, the liberal pluralist approach sees conflict largely in approach sees conflict largely in cultural termscultural terms, as a conflict of , as a conflict of interest between competing groups interest between competing groups in society.in society.

• It views power largely at the It views power largely at the interpersonal level.interpersonal level.

• While the liberal view of society sees While the liberal view of society sees power and conflicts as integral power and conflicts as integral components, consensus is also components, consensus is also prominent.prominent.

• While functionalists are inclined to While functionalists are inclined to view inequality as the product of view inequality as the product of ‘natural’ differences between ‘natural’ differences between individuals, and an inevitable feature individuals, and an inevitable feature of modern society, liberal pluralists of modern society, liberal pluralists hold a different view.hold a different view.

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

• But while such structural inequalities But while such structural inequalities are inevitable, liberal pluralists assert are inevitable, liberal pluralists assert that a just society is one in which the that a just society is one in which the competition for power and privilege competition for power and privilege is fair.is fair.

• In other words, a just society is In other words, a just society is where people should have equal where people should have equal opportunity to compete for unequal opportunity to compete for unequal rewards.rewards.

• In this regard, liberal pluralists are In this regard, liberal pluralists are inclined to view the state as an inclined to view the state as an impartial umpireimpartial umpire whose job it is to whose job it is to channel and adjudicate social conflicts.channel and adjudicate social conflicts.

• Different individuals and groups will Different individuals and groups will compete with one another to use the compete with one another to use the state to their advantage in the state to their advantage in the realization of their own interests.realization of their own interests.

• A primary role of the state then, is to A primary role of the state then, is to provide the rules of the game by provide the rules of the game by which this competition is played out.which this competition is played out.

• Liberal pluralists see law as an Liberal pluralists see law as an autonomous sphere in society.autonomous sphere in society.

• Law can be (but necessarily) Law can be (but necessarily) influenced by economic factors and it influenced by economic factors and it can also influence economic activity.can also influence economic activity.

• In what is similar to the view of the In what is similar to the view of the state as an arena in which political state as an arena in which political power is contested, modern liberal power is contested, modern liberal pluralists view the law as one more pluralists view the law as one more form or dimension of power.form or dimension of power.

• In contrast to the consensus-oriented In contrast to the consensus-oriented view of the functionalists, liberal view of the functionalists, liberal pluralists posit law as a reflection of pluralists posit law as a reflection of power differentials in society.power differentials in society.

• Accordingly, crime is not an inherent Accordingly, crime is not an inherent property of individuals, but a status property of individuals, but a status conferred on the individual by those conferred on the individual by those who make and enforce rule (ie who make and enforce rule (ie Howard Becker’s labeling theory).Howard Becker’s labeling theory).

• For liberal pluralist, then, crime and For liberal pluralist, then, crime and deviance are social creations.deviance are social creations.

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

• By attending to the concepts of By attending to the concepts of power and conflict, a liberal pluralist power and conflict, a liberal pluralist analysis of the law-society relation analysis of the law-society relation offers a number of advantages over offers a number of advantages over the functionalist approach.the functionalist approach.

1.1. It directs attention towards the It directs attention towards the question of the origins of law.question of the origins of law.

2.2. By attending to the political nature of By attending to the political nature of crime, liberal pluralists have been led crime, liberal pluralists have been led to investigations of how those who to investigations of how those who enforce and administer the law (police enforce and administer the law (police and judges) exercise their and judges) exercise their discretionary power.discretionary power.

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

• For example: Edward Sutherland For example: Edward Sutherland (1961) was instrumental in directing (1961) was instrumental in directing criminologists to ‘look up’ the class criminologists to ‘look up’ the class ladder to examine the actions of ladder to examine the actions of white-collar offenders.white-collar offenders.

• Despite the advantages, the liberal Despite the advantages, the liberal pluralist approach has a limited pluralist approach has a limited explanatory power because of how it explanatory power because of how it treats power and conflict.treats power and conflict.

• Despite the advantages, the Despite the advantages, the liberal pluralist approach has a liberal pluralist approach has a limited explanatory power because limited explanatory power because of how it treats power and conflict.of how it treats power and conflict.

1.1. It fails to adequately clarify the source It fails to adequately clarify the source of power (they deem how authority of power (they deem how authority becomes authority is irrelevant).becomes authority is irrelevant).

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

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

• Liberal pluralists open the way for a Liberal pluralists open the way for a critique of the rule of law doctrine.critique of the rule of law doctrine.

• If laws originate from the moral If laws originate from the moral inclinations of the more powerful in inclinations of the more powerful in society, and if agents of law (police society, and if agents of law (police and judges) utilize their discretionary and judges) utilize their discretionary powers in ways that might powers in ways that might disadvantage those with whom they disadvantage those with whom they come into contact, then is justice come into contact, then is justice really blind?really blind?

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

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

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

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

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

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

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

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

The Marxist ApproachThe Marxist Approach

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

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

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

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

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

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

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

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

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

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

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

• Rather, law must be understood in Rather, law must be understood in relation to the economic sphere.relation to the economic sphere.

• The Marxist approach also sees The Marxist approach also sees inequality, conflict and power in inequality, conflict and power in structural terms, as class inequality, structural terms, as class inequality, class conflict, and class domination.class conflict, and class domination.

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

• Marx’s own writings did not include a Marx’s own writings did not include a coherent theory of the state, so that coherent theory of the state, so that became the task of later Marxist became the task of later Marxist theorists.theorists.

• Generally speaking, these writers Generally speaking, these writers started from the fundamental started from the fundamental observation that the state in a observation that the state in a capitalist society broadly serves the capitalist society broadly serves the interest of the capitalist (ruling) interest of the capitalist (ruling) class.class.

• From this similar starting point came From this similar starting point came two different theories of the state:two different theories of the state:

•Instrumental MarxismInstrumental Marxism

•Structural MarxismStructural Marxism

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

Instrumental MarxismInstrumental Marxism

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

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

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

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

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

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

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

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

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

• Instrumental Marxism was not Instrumental Marxism was not without its shortcomingswithout its shortcomings

1.1. Viewing the state as an instrument Viewing the state as an instrument or tool of the ruling class does not or tool of the ruling class does not allow for systematic analysis of how allow for systematic analysis of how actions and strategies of various actions and strategies of various ruling-class groups are limited by ruling-class groups are limited by constraints inherent in the structure constraints inherent in the structure of society.of society.

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

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

Structural MarxismStructural Marxism

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Yet structured Marxism also had Yet structured Marxism also had its limitation.its limitation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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