Law and Society
Section 2: Lecture Notes
Prof. Cappell
III.The Institutions of Modern Law.
Berman, Harold.
1983Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, MA: Harvard University Press.
A.Historical Development of Legal and Political Institutional Forms.
Useful also to follow a historical development.
Sources of current law found in the past. A quest for the origins of current law: Concepts and Institutions.
Papal Revolution: "The primary impulse for this development came from the assertion of papal supremacy over the entire Western church and of the independence of the church from secular control. This was a revolution, declared by Pope Gregory VII; the papal party and the imperial party fought it out in bloody wars for almost fifty years, and it was only after almost one hundred years, in 1170, that the martyrdom of Thomas Becket sealed the final compromise in England." (Berman 50).
1.Major institutional sources of modern law:
a.Canon Law:
Berman argues that the Canon law was the first widespread legal system in the West. The Papal Revolution split secular and religious authority.
- Tribal Law
Germanic tribes: Visigoths, etc. based on communal oaths, bloodlines lines. “The earliest of the Anglo-Saxon legal compilations was the Laws of Ethelbert, promulgated about 600 A.D.” (p.54). Tariffs for injury, wergelt.
c.Feudal Law:
1000AD - 1200Ad. Inheritability of the fief. Reciprocal rights and duties of lords and vassals. Spread of a universal form of relationship across Europe. Courts were supervised by lord or his agent. Merged economic, political, military, and dispute settlement.
d.Manorial Law:
Local law of the fief. Lord (Vassal) administering the peasants. Became increasingly objective and universal as well. Communal self-regulation.
e.Mercantile Law:
Transnational. Based in Commerce. Rested upon Roman Law. Commercial Courts: judges elected by the merchants of the fair or market. In cities, urban or guild courts headed by the head of the guild
f.Urban Law (1000-1100 AD thousands of cities formed):
Different than Roman administrative cities and different from Greek autonomous city states. Prior to 1000, small cities had no autonomous political/legal structure. Still agrarian.
Economic: Newer cities dominated (4/5) by producers (artisans & craftsmen) rather than merchants. Because increased agricultural production freed up some labor. Agricultural goods to city, commodities produced, merchants traded. A new form of economic structure.
Social: Increased geographical and social mobility. City populations grew. Production afforded upward social mobility.
Political: Citizens organized into militias. Cheaper than a standing army, cheaper than knights. Cities were defensible space. Local barons increased wealth via tolls, taxes, rents. Cities did have conflicts with local rulers for their autonomy.
Religious & Legal factors: Berman adds these. Guilds, & cities, held together by oaths, religious in function, separate in structure. Most cities founded by a charter, a legal construction. Argues that new cultural innovations produced cities in West, these cultural innovations absent in Islam, e.g. affected :"...fraternal associations, collective oaths, corporate personality, charters of liberties, rational and objective judicial procedures, equality of rights, participation in lawmaking, representative government, and statehood itself." 363
Early cities: Paris, Venice, Florence, Palermo circa 1325, had populations over 100,000. London circa 850, 10,000.
Swear allegiance to the commune. Society of peers. Various forms of administration: could be organized into parishes. Italian cities governed by consuls. City gov in competition with royal and papal authority. Gradually increased their autonomy. Leaders nominated each other, elected by all the citizens. e.g. Cologne, revolted against bishop. Organized into parishes. Became member of a parish by inheriting property and paying a fee. Parishes had civil and criminal courts. Regulated land transactions, mortgages. Assessors served as high judges, city counsel. a governing guild formed, patricians. Urban law transported to newly forming cities, e.g. Magdeburger Recht. Largely customary law.
London: William the Conqueror, after Norman Conquest granted London a charter. By 1100, the two ruling sheriffs were elected rather than appointed by the King. Citizens elected their justices. King still maintained ultimate control, more authority than on continent.
Guild law. Origin in Germanic guilds: religious brotherhood. Peace guilds. Constitutional character, set of ordinances. Social and economic (monopolistic). Two consuls governed guilds, elected by members. Lawyers helped in administration. In some cities, guild consuls became administrators of the city.
Main Characteristics of Urban Law.
1. communitarian: a commune. oaths. a contract. participatory. a community of communities. not very democratic, more patrician.
2. secular: did not organize religious acts, did not rely on ecclesiastical law. local.
3. constitutional character: founded upon charters; governments limited in their powers, pluralistic; rational trial procedure; granted civil liberties, freedoms; participatory via a council.
4. capacity for growth: legal mechanisms for change.
5. integrity as a system: transformed customary law into ordinances, legislation.
Concludes chapter by discussing Weber and the city. Notes error and inconsistences in Weber. But agrees that "freedom" of the city dweller the key concept that distinguishes West cities from others. Berger adds the self-consciousness of cities, as historically active entities.
g.Royal Law:
Papal revolution created secular kings. Courts used to control nobles, extend territorial control
Each of the perspectives point to a partial truth, giving a sources and a basis of legitimacy for modern law.
B.Conceptual Analysis of Modern Political Legal Institutions
1.Economic
Marx only partially right that law rests upon economic structure.
2.Domination
Weber only partially right that law rests upon a quest for domination, power, hence coercion.
- Rationalization.
Max Weber’s Analysis of Rationalization in Western Civilization.
Max Weber, Sociology of Law
C.Weber's Typology of Legal Modes of Thought.
Professor Charles Cappell
TYPOLOGY OF MAX WEBER'S CATEGORIES OF LEGAL THOUGHT
Basis of LegitimacyMeans
(Procedures Used) / Ends
(Goals Sought)
Role of the Intellect / Law-making Process Subject to the Intellect / 1. Formally Rational
- Logical Type
- Empirical Type
- Substantively
Law-making Process not Controlled by the Intellect / 3. Formally Irrational /
- Substantively
1. Formally Rational:
a. Logical Type:
Only legally defined facts are relevant. General rules apply. Facts of the situation are abstracted and only the general, unambiguous conditions are used to define the legal character of the situation. Logical interpretation is then applied to uncover the legal meaning of the facts. All meaning is derived from the legal context. Simple case-by-case application of precedents where the logic applied is limited to analogy is also formally rational. This mode of logic can be bureaucratized and the rules codified to create a set of rules that are logically exhaustive and exclusive of one another.
Examples: strict analogy by precedent; Napoleonic Code; Administrative/bureaucratic rules
b. Empirical Type:
The formality is superficial, directly perceived by the senses. The facts that are decisive are the external characteristics of the situation; interpretation is not required. Certain procedures or manifest requirements must be met: signatures must be proper, number of witnesses present, seals affixed.
Examples: questions of jurisdiction; reading of Miranda rights; taking an oath
2. Substantively Rational:
The primary motivation is directed toward the ends sought, and these ends are defined by ideals or goals outside of the legal context. The method is rational because a mapping of means-to-ends is used. In this mode: "the ends justify the means". Rationale can be ethical, utilitarian. Reasoning does not seek to apply or create a general rule, but to deal with the particular situation.
Examples: Khadi justice; sociological jurisprudence
3. Formally Irrational:
General procedures followed, but the outcome is not the result of logic, reason, or science.
Examples: oracles
4. Substantively Irrational
No general norms applied and the use of the intellect is absent or diminished. Emotional considerations
Examples: Favoritism, prejudice
Max Weber tried to link four types of rationality to four types of social action: affectual, traditional, value-rational, means-ends. These modes of rationality are discussed in the context of Weber's Sociology of Religion. They may be thought of as more empirically-based than the pure types discussed in his Sociology of Law. (Source: Kahlberg.)
1. Practical rationality: pragmatic, interest-driven. Egoistic. Guides pragmatic actions in terms of every day interests. Leads to means-end social action. Accept given reality and react, adapt to it.
2. Theoretical Rationality: Develop abstract concepts to master reality. (intellectual rationality) Make causal attribution, logical deduction-induction. Create symbolic meanings. Motive behind this rationality is to create , provide "coherent meaning". Philosophy of law, holistic models.
3. Value Rationality: orders social actions "...in relation to a past, present, or potential value postulate". A canon: set of values. Weber is somewhat radical because he acknowledges there is no absolute value, rather pluralistic competing values. Particularistic. The rationality is understandable only when one has knowledge of the end state.
4. Formal Rationality: 'universally applied rules - regulations. characterized by universalism. Logic according to the category of rule applied. Means-ends but via rules, rather than substantive rationality, or scientific experiment. Rules may be informed by scientific experiments, but may not. Weber views formal rationality in conflict with substantive rationality - which seeks an outcome that is substantively just in this particular case. Formal rationality rejects individualism and arbitrariness.
5. LEGAL FORMAL RATIONALITY: "...only unambiguous general characteristics of the case are taken into account in terms of purely procedural and legal factors." E&S 656-57.
6. Modes of rationality become institutionalized. Become the basis of domination, Social Action.
D.Law as Reason: The basis of legitimacy for the “Rule of Law”.
1.Reason is universal, outside of experience. Obeys its own laws. Reason operates with the same mechanical result for the powerful and the weak. Value Neutrality. Truth statements deductively created from initial premises.
2.Scientific Legitimacy. Basis is "truth" statements that conform with experience, sensory data. Scientific law is legitimate because it is consistent with scientific truth. Eg. ordeal, oaths, scientific forensics.
3.Weber's typology of legitimate forms of domination integrate the type of legal system, political structure, and general modes of social action into three major types:
a.Rational-Legal
b.Traditional
c.Charismatic
(Source of chart: Mommsen, Wolfgang. The Age of Bureaucracy.)
Berman writes:
" Social theory must therefore accept a broader concept of law than that which Marx and Weber adopted. Law is, as they believed, an instrument of domination, a means of effectuating the will of the lawmaker. But this theory of law, usually identified with the positivist school of jurisprudence, tells only part of the story. Law is also an expression of moral standards as understood by human reason. This view of law, which is associated with natural-law theory, is also partly true. Finally, law is an outgrowth of custom, a product of the historically rooted values and norms of the community. This third view, identified with the historical school of legal philosophy, can also claim - like each of the other two schools - one third of the truth. ...Law is, in part, an instrument of class rule and an ideological reflection of the ruling class's interests. In every legal system examples may be found to illustrate that. But that is not all. Law in the West has also been a protection against the arbitrary power of the ruling class, and much in it that is derived from reason and morals, as well as much in it that is derived from earlier periods of history, does not necessarily reflect the interests of the ruling class." 556
This statement is a succinct summary of the "liberal" modern legal state.
Much of the current theoretical debate revolves around this broadly stated view: to what extent each of these sources remain autonomous as sources of substance and legitimation for modern legal systems. One critical view holds that only economic power dominates the current legal institutions. Another holds that conditions have reached such a level of internal confusion and contradiction that legal institutions have begun to collapse.
E. Liberal Political Society:
Characterizations of the modern (Liberal) state.
1. Democracy
1.1Democracy the most compatible form of government with capitalism.
1.2Universalism: expanded franchise.
1.3 Equal vote implies equal power.
1.4 Equal chance to govern.
2. State separate from civil society.
2.1State coordinates, balances interests.
2.2Territory limits state rule. Space determining factor.
2.3State is a set of institutions, collections of offices.
2.4State monopolizes means of coercion.
2.5Power is vested in the offices, not the officials.
2.6Pluralistic power within the state/checks and balances.
2.7Laws and regulations limit the authority of office-holders.
3. Law captures, reflects, constructs social reality.
3.1A theory of language implied here. Language reflects reality.
3.2Reality resides below the surface. Can't directly observe the real nature of social relations. (similar to modern physics.)
3.3This reality can be analyzed, broken into constituent parts, and reassembled in the language of law.
4. Meta-narrative that organizes thinking about the state: Rule of Law
4.1Law is neutral.
4.2Law is autonomous from politics.
4.3 Law is reason.
4.4Justice is formal; substantive issues can be separated from formal (procedural) issues. Procedures are neutral.
4.5 Individual freedom is attainable.
4.6Law is universal, pervasive; includes all relations.
F. Formation of the Regulatory State.
Anderson, James E.
1962The Emergence of the Modern Regulatory State. Washington, DC.: Public Affairs Press.
First period of growth of the modern state is approximately 1860-1920.
Ch. 1 The Environment of the Regulatory State.
Anderson uses largely a functional analysis of the modern state, analyzing the emergence of the state to meet new demands and functions of the more complex industrial society. He first notes the major initial regulatory laws:
1863 National Bank Act
1887 Act to Regulate Commerce
1890 Antitrust Act
A.Developments in several domains precipitate the need for increased regulation:
1. Industrialization:
Amount and size of industry increased rapidly after the Civil War. "The value of manufactured products rose from approximately $2 billion in 1860 to $11 billion in 1899." (p.2) "Wage earners in manufacturing rose from about 1,000,000 in 1860 to nearly 5,000,000 in 1900...[in] 1917...to 9,220,000". (p.2) Movement away from employment in agriculture, by 1920 about 75% of the labor force employed outside of agriculture. (p.3) "Nearly half of the products of industry in 1914 was produced by the 1.4 per cent of the concerns having an annual output of over a million dollars each." (p.2)
"The result was a growing demand for governmental action to remedy such problems as monopoly, unfair competition, and poor working conditions - problems that were beyond the power of the individual to prevent or correct." (p.3) [Add point of emphasis attributed to Skowronek, rise of classes and class antagonisms.]
2. Corporate Movement:
"By 1904 corporations owned about 24% of the manufacturing establishments and produced nearly 74% of the total value of manufactured products." (p.3) "Nearly half of the products of industry in 1914 was produced by the 1.4 per cent of the concerns having an annual output of over a million dollars each." (p.2) In 1904, there were at least "318" industrial trusts that had merged 5300 distinct plants. (p.3) John D. Rockfeller commented: "Individualism has gone, never to return." (p.3) Separation of management from control resulted from new corporate forms. "In 1914 half of the workers engaged in manufacturing were employed by less than 4 per cent of the concerns." (p.4) Government asked to protect the individual from the power of the corporation.
3. Urbanization:
In 1860, about 80% of the population lived in rural areas; in 1920, less than 50% lived in rural areas. Created health and safety problems. These problems were public, required collective action and solutions, not individualistic actions.
4. Commercialization of Agriculture:
Farming became more business-like; technology increased production. Farmer became less self-sufficient and more embedded in the national economy via railroad, manufacturing, and finance. Some resentment against the rates charged. Farmers were individualistic, turned to government to regulate those sectors that affected them; railroads and banks. Grangers and Populists supported regulation of railroads, trusts, and banks.
5. The Disappearance of Free Land and Resources.
Free land spurred individualism. One could always escape west. Free land set a lower bound on wages. When land became more scarce, introduced a constraint on opportunities.
6. Ideological Environment - Progressivism:
T. Roosevelt - trust buster; & W. Wilson. Government can aid progress, help to achieve the "good life". Institutions must change. [Can see progressivism in legal philosophy as well, Pound, judicial activism.] Government needs to maintain the level of competition needed for progress.
7. Ideological Environment - Moderation
Progressivism retained a traditional component, need to preserve existing American institutions. Opposed to radical transformations, eg. socialism. Ideology sought a middle path between unrestricted individualistic laissez faire and state socialism. Ideology sought to introduce some notion of "social justice" into the process.
8. Ideological Environment - Pragmatism
Philosophical movement of finding programs that work rather than following abstract, a priori fixed generalizations (William James: "Pragmatism has no dogmas and doctrines save its method." The pragmatic method: "...the attitude of looking away from first things, principles, 'categories', supposed necessities; and of looking towards last things, fruits, consequences, facts." cited on p.10). [Pound]
9. Ideological Environment - Humanitarianism
Social reform and social justice rose to oppose Social Darwinism. Concern over the poverty and misery of urban dwellers.
10. Ideological Environment - Collectivism
Can think of corporatism as one form of collectivism, Americans saw the benefits of collectivism. But also strong sentiment of individualism. Ideology sought to entwine the two; collectivism necessary to preserve individualism. Public good benefits all individuals. Anderson cites Charles Eliot: " Collectivism values highly social rights, objects to an individual initiative which does mischief when left free, holds that the interest of the many should override the interest of the individual whenever the two conflict, and should control social action, and yet does not propose to extinguish the individual, but only to restrict him for the common good, including his own." (p.12). Sought to instill a duty to others along side self-interest. Government a proper institution to define and implement the collective good.