Law in Social Theory - Essay Example

Title: Law in social theory Student’s Name: Institutional Affiliation: Date assignment due: 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. 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. In other words, the law is interpreted so that its implications can be understood in a social setting. Additionally, the judgment, according to the tribunal is meant to be a lesson to other corporations where discrimination practices are widespread. The character of the law being 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. 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 the 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 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, emphasis is on the corporate setting in which the breach of the NSW Anti-Discrimination Act occurred. In the context of classical legal pluralism, 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 legislations such as NSW Anti-Discrimination Act. The existence of parallel sentencing systems in Australia is an indication of existence of heterogeneous societies and the corresponding necessity for parallel forms of sentencing. Different societies in Australian handle the issue of gender discrimination differently. For instance, the Aboriginal traditional law sets standards for gender relations that are different from other approaches, which borrow heavily on the colonial legal system, such as the NSW Anti-Discrimination Act. On the other hand, the NSW Anti-Discrimination Act guarantees equal treatment of everyone in the workplace regardless of his 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 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 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 were 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. 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 properly and contract laws. On the other hand, the power medium of the society’s political system has to be normatively anchored through the institutionalization of the organization of official positions in different 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 on 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 the 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 positively 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. Juridification simply refers to an increase in use of formal law through measures such as 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 over all private persons. They also legitimized the coexistence of 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 were constitutionally guaranteed. Next, 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 for 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 that human beings go through during their encounter with that law. On his part, Ehrlich argues that law dominates social life, thereby coining the term ‘living law'. Ehrlich refers to the all legal propositions that dominate man’s social life as juristic law. Ehrlich points out that the living law can rule only where state operations support the enactment of that law. 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 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 the military order and trading ties with an enemy state. Although the state gains 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). Although the distinction between the criminal and civil causes has always remained clear in terms of jurisdiction, there has been a situation where one cause encroaches 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. The 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 the society. Additionally, in terms of the corresponding coordination of action, the uniformity of impulsions leads to improvement in economic and political behavior in the society. References Banakar, R, & Travers, M, 2002, An introduction to law and social theory, Hart Publishing, London. Read More