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From the OJEN Blog

Teach with context: Using theory for a deeper understanding of law

I used to teach sociology to university students, and one of the things that I liked best about it was the chance to get them to think about really deep connections between social institutions and the cultural values from which they develop. I have done it with secondary students too. With so many of them expected to develop thinking and communicating skills they’ll need later, it’s a great way to support them as they learn to think about something, articulate their position and support it with the ideas of others.

Teaching sociology of law was often an exercise in teaching competing perspectives and asking students to locate their own ideas on the resulting continuum. The neatest part of this for me was showing how a theorist’s most basic ideas shaped the whole of their work and how their echoes are still heard in modern political differences. With that in mind, I’m going to use the work of two sociological heavies – Emile Durkheim and Karl Marx – to try to say something interesting about the law.

First, a question or two. I would invite students to think about and respond to these, and then revisit them at a later time.

Does law constrain us? Does it free us?

Does the law shape social values? Does it reflect them?

Whose values were you talking about? Everyone’s?

If not everyone’s, whose dominate?

Conscience Collective

Keeping these in mind, let’s start with Emile Durkheim. Durkheim’s sociology was really about social cohesion – why people do or don’t feel like members of a group, how this feeling has changed historically, and what happens when we do or don’t feel that way. He called this conscience collective (collective consciousness) and for him, the collective consciousness of a group was really the basis of social order, and therefore of society itself. The more alike we thought, Durkheim figured, the stronger our group identity would be. It follows from this that as societies changed through industrialization, immigration and urbanization, there would be related changes in the kind of group identity people feel.

Species Being

Marx was also into history, but his starting premise couldn’t have been more different. As a species, he reckoned, people are slow, get cold easily, need to eat often, don’t grow any awesome fighting tools like spiked tails, bees that shoot from our mouths or even respectable claws, and take FOREVER to get our offspring to the point where they can even get out of our houses, let alone breed on their own. We are relatively weak and vulnerable – extremely high-maintenance, as animals go. As a result, it’s kind of ridiculous to talk about “society” at all – if you want to explain people, first you need to tackle the problem of how we manage to meet our basic physical needs. For Marx, the unique thing that allowed humans to do this was our labour – the work we do all the time. The need to survive trumps all things, we use labour to do this and any “society” to speak of is really just a reflection of the way a group of people has organized that labour. It follows from this that societies change according to changes in the way work happens – what gets done, for and by whom.

Modes, Means and Relations

For Marx then, studying history was actually about studying work. Anything that was identifiable as a distinct period in history was actually a distinct period in the way people worked to meet their needs and in how people related to each other. He called these periods “modes of production, and one mode of production was distinguished from another by the degree of control people had over their own labour.

The degree of control had a lot to do with controlling the resources needed to do that work – things like land, animals, tools, factories, crops and so on. Marx called these the means of production”, and called the resulting ways we interacted with one another in each of these periods the “relations of production”.

Mechanical and Organic Solidarity

Most of the European theorists who were writing about society after the industrial revolution were pretty hung up on the idea of social progress and evolution (thanks Darwin). These two weren’t an exception; I hope I’ve shown that for Marx, this progress was measured in social relations of working. Durkheim’s interest in social order and group identity meant that he thought about social progress in terms of what he called forms of solidarity.

In the past, he figured, all the people in a social community pretty much did the same thing with their days. Your life was a lot like your neighbour’s life; you farmed a bit, built your own house, made your own stuff, cooked your own food, transported your own goods, taught your own kids the things you thought they needed to know and so on. There might have been a few people whose roles were different (religious or political leaders, for example), but groups were pretty much homogeneous. The group identity that formed in relation to this, he argued, was therefore about “sameness” – not challenging the beliefs held by the group. Individual difference had little value, and in fact was often looked down upon or suppressed. He referred to this as “mechanical solidarity” – for many people, this evokes images of robotic or machine-like repetition and obedience.

As communities became more complex, however, people stopped doing the same things as their neighbours as much. Instead, we became societies made up of specialists. Different people now had vastly different roles; we lived in uncomfortable conditions in cities and often in the presence of people who came from different parts of the world. Differences in terms of social role, social diversity and quality of life issues meant that a group identity based on sameness was not as viable as it had been before. Instead, he reasoned, group identity was now based on interdependence. Instead of basically taking care of all our own affairs and sharing group celebrations we focused all our time on highly specialized tasks and acknowledged our cultural traditions in silos, without the presence of all our neighbours. Everyone performed a different role, but these roles depended upon one another to contribute to the maintenance of the whole. In the sense that this was a bit like a living organism – because like organs, each of us were performing functions that were useless on their own but still integral to the whole – he called this “organic solidarity”.

Bring on the Judge!

“So”, you may ask, “what does any of this have to do with law?”

Fair question. Check this out:

For Durkheim, the function of the law was to maintain social order and minimize social disruption by upholding the conscience collective. In fact, studying the ways in which individuals are regulated in given groups was where he got a lot of his evidence for the ideas above. He noted that in the societies he would have (wrongly)characterized as “primitive”, laws and sanctions were highly punitive of social deviation – they sought to discourage and punish difference, often violently and publicly, so that the penalties were known by all. So, he wrote, mechanical solidarity is associated with repressive law. This is certainly closest to what most of our students would recognize as criminal law and punishment.

In contrast, with its new emphasis on interdependent parts contributing to the overall functioning of a system, modernization and industrialization meant the emergence of law that served that need. As a result, Durkheim argued, societal progress saw the emergence of law whose purpose was not to suppress, but rather to restore balance when someone failed to adequately perform their part. This meant the emergence of what students might now recognize as civil law – governing relations both between people and between institutions and individuals. So, law in these communities was associated with things like contracts, torts, by-laws, property rights, regulations, constitutions and individual rights. For Durkheim, organic solidarity was very much about making restitution – restoring people’s faith in a delicate web of relationships.

Marx had less directly to say about law per se than Durkheim did, but his ideas about labour and culture have provided a general approach that is quite accessible. In the original theory, one of the most important changes in the mode of production was the introduction of private property. This meant that some people in a given society had greater control over the production process than others did – they were the ones that owned the tools, animals, land, machines, factories and so on. This, for Marx, is how different social classes emerged historically. The upper class were those who owned things, and so could hire people to work for them and profit from their work, and the underclass were those who owned very little, and so were forced to sell their labour in exchange for a wage to survive.

For Marx, all things flowed from labour relations and modern institutions were therefore a reflection of a society in which classes had different levels of power and competing interests. As a product of that culture, the law is seen as reflecting and in fact protecting class difference.

Marx himself wrote that the dominant ideas of a time are those of the dominant class, and many who have used his ideas since have argued that groups who have more power use the law to maintain their power in society, or to serve their interests. Many Marxists actually see the social relations that come out of wage-labour as a kind of “original crime”, because they force people to depend on a low wage to survive, rather than using their labour for their own direct support. This is “criminal” in the sense that it corrupts the most fundamental thing about people – our “species being” – which is our labour.

In this view a lot of crime – particularly theft and other kinds of property crime – is seen as the expression of class struggle: people who have next to nothing breaking rules that serve people who have everything, in order to survive or to express the injustice of capitalist social relations.

I haven’t explained these very thoroughly, and clearly they aren’t perfect ideas to begin with. Marxism seems to deal with property law by romanticizing crime and really lacks any way to talk about a whole range of laws and crimes that aren’t about property – violent crime in particular. Durkheim’s assumption that non-industrial cultures were “primitive” is deeply problematic and substantively wrong – for example, many such cultures have developed highly sophisticated systems of restorative justice predicted alternative ways of resolving disputes in “modern” legal systems. Still, this has been a useful framework for me in the past and it has helped students understand some of the differences between conservative and progressive views of the law. Do they value consensus? At what cost? Is society already in conflict? Who is winning? Is it okay to lash out against the winner? What else could we do?

Thanks for reading!

Nat Paul

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