Comparative Legal Theory - Coursework Example

Running head: Comparative legal theory Name: University: Course: Tutor: Date of Submission Comparisons According to studies Durkheim, Weber and Marx are identified as classical sociological theorists who actually argue that specific structural conditions led to different types of law and unique legal systems. Emile Durkheim, Max Weber and Karl Marx are believed to have great influence in the development of sociological law hence they are considered as the fathers of sociological law. It is evident that their ideas are built upon one another hence their thoughts repeat in different words but with similar meaning. Durkheim, Weber and Marx saw the need to take into account the development of law primarily to identify particular ways of producing ideas, ways of reasoning and forms of practice. This implies that both the three theorists essentially saw law as an important tool for transforming the social society and establishing foundations of modern society (Roger, pp.14-67, 2006). Contrast Though, the three men are considered to be the same fathers of sociological view of law, Weber looked at the economic, ideological and poetical factors in an attempt to explain the casual explanation of law. When viewed from the perspective of Marx, he never developed sociology of law rather he stood with Durkheim and Weber in the analysis of the law in relation to the society. On the issue of law and how it is related to crime and society, Durkheim argues that crime is necessary since it’s key to an individual’s as well as society’s change because if there is no crime then change cannot be possible. According to Durkheim, crime is both a functional as well as a dysfunctional role in society (Kenneth,pp.279-289,2006). Durkheim therefore perceived law as necessary for any society since it acts a corrective tool to by imposing punishment on individuals who go against the law. From his thoughts, the law acts as reminder to the society on what should be done and what should not since it creates shared awareness, moral sensibilities and community identity among individuals hence earning respect for particular society. According to Marx, laws have been developed to serve the interests of capitalism as well as the ruling class of capitalists. In some situations, laws are able to oppress the working class hence it is necessary that they exist. This is stipulated from the mere facts that every single law which regulates any kind of relations in a society is created mainly to increase the gap between the ruling class and the working class. Furthermore, he argues that working people get poorer and poorer when they produce more since the capitalists take surplus value that they create (Leon, pp.45-67, 1997). Laws therefore let the capitalists obtain extra profits originating from companies they work with. Working people get poorer and poorer when they produce more because capitalists take the surplus value which they create which implies that laws let capitalists obtain the profits originating from the companies that they work with. Though, working people can change the law as way of benefiting themselves they are not able to do that effectively since they do not have enough power. According to Marx views on law, they can be explained from two perspectives thus the objective and positivist in which laws have been created to reflect the subjective interests of the capitalist class (Michele, pp.78-89, 2009). According to Marx, when the law is analyzed from the positivist approach, capitalists tend to have their own subjective perceptions in regards to the society hence the laws are usually used primarily as a means or a way of putting their subjective views on the paper which in one way or the other is in favor of them. Capitalists therefore have their views focused on the way in which they want things to happen around the world they live in or the way they want the law to be interpreted as well as be implemented. Marx argues that the capitalists will always strive to do their best primarily to ensure that the laws adopted regulate the society as per the most favorable terms to them. When analyzed from the objective approach, Marx argues that the law is meant to serve the interest of the capitalists which actually comes as a result of objective process. Capitalists therefore dominate the society hence the trends being used in legislation are tailored towards their own interest. Due to this, most of the legislation processes serve only the interest of the capitalists in the society leaving out the rest of the people in a society. Additionally, he argue that it is necessary that changes be made on the legislation that it reflects the interest of the ruling class since the entire process of law legislation is entirely and fully objective. When contrasted with Max Weber, he had very different views on law. From his perspective, the law does not reflect on the subjective interests of the capitalist class or objective characteristics of the capitalist nature of the society. He therefore argues that there is no class which actually determines the features of a particular societal legislation (Michele, pp.78-89, 2009). This is because all the people in the society are equal hence they considered to be parts of the same machine which functions only if all its parts are in order. According to Weber, the ruling of the law is usually determined with the modern society. Additionally, he states that in the modern society, bureaucracy is key determinant to particular elements of the society as well as other elements of regulation. This implies that the law is component of the society which is always present in all levels of the organizations. Weber therefore argues that, in bureaucratic organizations decisions are usually made by the management and later forwarded to the employees in lower ranks as well as other people working for such organizations. Weber linked the study of law in relation to the current social modern forms. Modern law is believed to be an exemplified kind of rationality mirroring and running parallel to the modern forms of rationalization. He therefore considered the formal legal rationality as a distinctive mode of thought and practice. On other side Marx seeking to analyze the nature and destiny of capitalism, he saw law as in one sense super structural, a product rather than an engine of capitalism’s trajectory. He therefore considered law as a mode of production as well as the overall structure of the modern society (Anthony, pp.24-45, 1999). According to Marx, the role of the law is to define the social relations, repress unrest class as well as help to constitute various ways of thinking above all in terms of property and contract. From the analysis the theory which is more compelling is the Marx explanation of law since it explains the nature of law both from a objective and positivist perception. Given the fact that Marx concentrates on the capitalists during explanation of law it becomes much compelling given the fact that they comprise a larger percentage of the society. Summary of guilty pleas or trials: which does the barrister prefer? Barristers in England and attorneys in the United States have been criticized for pursing their own interests by recommending guilty pleas over their own trials. More often, criminals always plead guilty on the material day of the trial or even before the trial begins. A lot of things happen before, during and after the trial. For instance a witness might show up which changes the direction of the case. At times the defendant may run out of ideas and resources that will be useful in the case while others will plead guilty after getting advice from a legal advocate. It has been heard on several occasions that advocates and lawyers persuade and convince their clients to plead guilty even if they are innocent. It is due to this fact that Attorneys and Barristers in England’s crown court have been strongly criticized with an argument that they do it for their own gain and without considering the clients interest. Instead of the advocate protecting the client, they literally prosecute them long before the courts ruling. This is an act of betrayal that advocates give to their clients. It is difficult to prove this fact, since no advocate comes out publicly or rather admits that they are doing it for their own benefit. Melbourne’s and Sydney barristers are not included in the criticism debate like their colleagues in England since no one has ever accused them of soliciting the client for their own benefit. This can be attributed to the fact that their system compels them to prefer trials. The main reasons that the advocates do this are because they do not want to be sanctioned besides wanting to maximize the remuneration. The question I need to ask is; is what the advocates doing right and are they doing justice to their clients? In my opinion this is very wrong and unprofessional. Their main objective is to defend and give necessary advice to the client on how they can defend themselves and not to prosecute them. In doing this they are denying the client justice. Many critics argue that pleading guilty is a preference that an advocate should go for instead of a trial(Peter, pp.1-82, 2007). I guess this is because trials are more complicated and time wasting than pleading guilty. Ironically they haven’t been in a position to find out why barristers prefer trials whenever a defendant pleads guilty. Advocates prefer a guilty plea while barristers prefer a trial, how come it is this way. I tend to think that these two parties could be colluding to sabotage the client intentionally so that they can fulfill their interests. Attorneys would rather prefer guilty pleas with most of the publicly funded cases within the US. This is due to the fact that most publicly funded cases have compensatory schemes that drive judges to end such cases by pleading guilty. In some countries like America and Australia, attorneys are not selected to represent poor defendants; instead a solicitor will represent the defendant and select a loyal and able advocate. In circumstances where the judges and court officials select the attorney, there are worries that they might not be given future appointments if they do not deliver a guilty plea case that a judge sees fit to be ended that way(Peter, pp.1-82, 2007). This is as challenging as this compels the attorneys to make such a ruling without giving it a second thought. Attorneys take advantage of defendants in situations where they have signed a contract to represent a percentage of the jurisdiction to maximize their monetary gain by ending cases by guilty pleas and avoiding trials. Barristers in England’s Crown Court have a more self interested behavior that is found in double booking, cracked trial and returned brief which is facilitated by the complexity of compensatory schemes in publicly funded cases. Cracked trials are a case that has been scheduled to end on the day of trial following the defendant’s late guilty plea. It therefore goes without say that attorneys and judges would prefer cracked trials so as to save them the trouble of preparation while inconveniencing witnesses. For us to be in a position to understand why barristers prefer cracked trial, we have to know the intrigues involved in the compensation process of publicly funded cases(Peter, pp.1-82, 2007). The fee structure in an England Crown Court creates the need for a guilty plea. Initially known as the graduated Fee Scheme, basic fee includes case preparation and the first day of trial. There are two factors that make the fee to vary; to begin with is the seriousness of the charges and secondly is when and how the case will end. A guilty plea will earn less when a case comes to an end with a higher identical fee that is paid for a normal trial and a cracked trial (Peter, pp.1-82, 2007). There are nine categories for serious crimes with different basic fees for each category making it tedious and cumbersome for a barrister to prepare the brief and in return earn nothing. It is due to such instances that barristers easily determine how much they may earn depending on the resolution of a case. Look at it this way, for a barrister to finish a case on Friday simply means that s/he is planning to use Monday and Tuesday to prepare himself for a trial of serious crime that has a high basic fee beginning Wednesday (Peter, 2006). Upon reaching Friday, he learns that there is a solicitor who wants to brief them of a trial with a basic fee that starts on Monday. Off course he will go for it knowing very well that it will boost his earnings. Incase the Monday trial flows into Wednesday knowing very well that the trial estimates are unreliable, and then he must return Wednesday’s brief since there is no option of rescheduling. Incase one trial is not postponed and the case does not end as expected, he lose the higher basic fee for Wednesday case and might end up compromising his relationship with the solicitor. In case he cracks Monday’s trial then it carries a small risk of annoying the solicitor (Peter,2006). In conclusion, something has to be done in order to protect the clients from exploitation from the attorneys, judges and barristers. Stringent and tight measures must be put in place to help stop this menace that is thriving at an alarming rate. CASE STUDY OF S395/2002 V Minister for Immigration and multicultural affairs (2003) HCA 71;216 CLR 473;203 ALR 112;78 ALJR 180 This is case revolving around the arrival of appellants who were believed to be citizens from Bangladeshi in Australia February 1999.Though no explicit legal theories or mention of theorists is evident in the case, evidence of some concepts and ideas evolve from the case. Despite the fact that the theory of rights is applicable to this case, the judges never mentioned it though it is usually considered more applicable to most of cases when it comes making a proper judgment. Though the concept of rights is evident as far as this case is concerned, legal theorists such as Bentham perceive natural rights as nonsense hence necessary that rights be embedded in legal statements. Additionally, Dworkin argue that rights are interpretative within the judicial view. From his perspective it is evident that a relationship between rights and constitution acts a triumph factor as far as the applicant is concerned. The other legal theory which underpins the case is the Hart’s theory. According to Hart, rules are basis of social organization hence laws are just one of the many ways in which a society controls the behavior of individuals. Throughout, the case the judges encounter various examples of rules operating both in Australia and Bangladesh which were perceived to be relevant to the outcome of the case. Though, Hart theory of rules is usually considered to be more flexible than earlier forms of positivists like Austin, it quiet difficulty for this theory to be used more efficiently in such cases. According to Dworkin, what emerges from case is usually not simple rights win rather a fair process on which each and every individuals rights is considered in the context of the materials available to the judge. The concept which evolves here is that when a right has been set against a policy then judges have no right of using the policy considerations to read down the right rather give an effect to the right. In the case study, the courts were not concerned with Bangladesh jurisdiction rather right for protection visa in the Australia context. It is evident that right depends on the prospect of persecution, though sometimes judges find it more hard to define the really meaning of what persecution as well as its application. When we relate the case in relation to the Marxist critical theory it evolve that courts don’t make any ordinary explicit decisions rather knowledge and confusion acts as a basis for any court judgment. Though, this maybe the case some judges can identify some issues while others can only demonstrate them. Majority of most judgments are usually based behind some given social forms. Interrelationships between the individual as well as their social forms, cultural and historical web play a crucial role in any judgments this is not always the case as some of them are usually denied in the dissenting judge judgments. References Roger, B., M. (2006).Law, culture and society: legal ideas in the mirror of social theory Publisher: Ashgate Publishing, Ltd., pp.14-67 Kenneth, L., M (2006).Marx, Durkheim, Weber: formations of modern social thought, 2nd ed.Publisher: SAGE, pp.279-289 Leon, S., S (1997).Social cohesion and legal coercion: a critique of Weber, Durkheim, and Marx, Vol 44. Publisher: Rodopi, pp.45-67 Anthony, G (1999).Capitalism and modern social theory: an analysis of the writings of Marx, Durkheim and Max Weber. Publisher: Cambridge University Press, pp.24-45 Michele, D (2009).Introduction to Sociological Theory: Theorists, Concepts, and Their Applicability to the Twenty-First Century. Publisher: John Wiley and Sons, pp.78- 89 Peter , W.,T (2007). ‘Barristers’ Selfish Incentives in Counseling Defendants over the Choice of Plea’ Criminal Law Review 3. Peter W., T (2007), ‘Guilty Pleas and Barristers’ Incentives: Lessons from England’ Criminal Law Review 20 Georgetown Journal of Legal Ethics 287, 304. The temptation to pursue personal interests is less Peter,W., T (2006). ‘Tactical Reasons for Recommending Trials Rather than Guilty Pleas in Crown Court’. Criminal Law Review 23. Peter, W., T. 'Guilty Pleas or Trials: Which Does the Barrister Prefer?' 32 Melb. U. L. Rev. 242.pp.1-82 Read More