Law and Social Theory SOC 400Xx – 20101 Robert Van Krieken Wed 3-5 [email protected]

Law and Social Theory SOC 400Xx – 20101 Robert Van Krieken Wed 3-5 Robert.Vankrieken@Ucd.Ie

UNIVERSITY COLLEGE DUBLIN COLLEGE OF HUMAN SCIENCES SCHOOL OF SOCIOLOGY

Law and Social Theory SOC 400xx – 20101 Robert van Krieken Wed 3-5 [email protected]

his module provides a detailed understanding of how the work of a broad range of social Ttheorists contributes to a specifically sociological understanding of legal ideas, institutions and practices. Beginning with the more recent social theoretical perspectives on legal discourse, structures, processes, relations and institutions -the work of Foucault, Habermas, Luhmann, Bourdieu, ethnomethodology and symbolic interactionism - we will then broaden our grasp of their approaches to law and how they interrelate with each other by taking a closer look at their connections with the earlier work of Elias, the Frankfurt School, Marx, Weber, and Durkheim. Throughout the module there will be a concern develop our understanding of (1) each theorist or theoretical perspective, (2) the relevant secondary literature, and also (3) of the ways in which that theoretical orientation has been ‘put to work’, utilised or applied in research into particular legal fields, case studies, or issues. The module reinforces the knowledge and skills acquired in your undergraduate training by providing you with a thorough grounding in a wide range of perspectives and approaches in social theory underpinning the analysis of law’s relationships to its changing social context, other social institutions, fields of knowledge and practice, its continuing historical evolution, and its role in key contemporary social and political transformations.

READING MATERIALS The reading materials for the course will consist of: 1. Reza Banakar and Max Travers (eds) An Introduction to Law and Social Theory (Oxford: Hart, 2002) [B&T] 2. Reading provide via the Blackboard site. The readings marked with an asterix* have also been placed in UCD Library Short Loans.

By way of background and supplementary reading, there is an enormous literature covering the range of classical and contemporary social theory which you may find useful to draw on. Apart from the sociology journals, just some of the examples include:  Handbook of Social Theory, edited by George Ritzer and Barry Smart (London: Sage: 2001)  The Blackwell Reader in Contemporary Social Theory, edited by Anthony Elliott (Oxford: Blackwell, 1999)  Contemporary Sociological Theory, edited by Craig Calhoun (Oxford: Blackwell, 2002).

KEY DATES Classes begin: 15 September Workbook Pt 1 due: 2 October Reading Week: 26-30 October Workbook Pt 2 due: 30 October Essay due: 8 December

CONSULTATION I will be available for consultation at times to be arranged either in class, by phone or by email.

LEARNING OBJECTIVES AND OUTCOMES This module aims to provide students with:  a detailed understanding of the perspectives of a broad range of social theorists on the place of legal ideas, institutions and practices in society, as well as how they have developed over time;  an understanding of how the way in which social theorists approach law differs from other disciplines, such as philosophy, economics and the legal profession itself;  improved oral and written communication skills;  strengthened analytical and research skills, including the ability to identify and evaluate different interpretations of an issue, present evidence and argument in support of their own particular position

By the end of module, students will be able to:  understand, explain and use the work of a broad range of social theorists in relation to legal ideas, institutions and practices;  understand how legal ideas, institutions and practices have developed over time, and are developing into the future, from a specifically sociological perspective;  effectively communicate that understanding of a variety of social theoretical perspectives on law, both orally and in writing, and under time pressure (in a take-home exam);  identify and explain how a sociological approach to law differs from other disciplines;  research a particular topic in the application of social theory to a particular legal issue or case, identify and develop a focused argument concerning that research, and write it up as an effective and persuasive essay.

The aims and objectives of the module are consistent with the generic attributes of graduates identified by the College of Human Sciences and offer students the opportunity to work towards improving their skills in all five areas of: research and inquiry, information literacy, personal and intellectual autonomy, ethical, social and professional understanding, and communication.

LEARNING SITUATIONS These learning objectives will be pursued in the context of a weekly 3-hour seminar/workshop, which will combine a lecture by myself with class discussion, preceded by completion of the required reading and accompanied by independent reading.

ASSESSMENT Students are required to:  attend the designated seminars;  participate in class discussion;  complete satisfactorily such written work, presentations and examinations as may be prescribed; and  meet the standards required by the University for academic honesty. Students are required to complete all components of the following work:  Participation in seminars, 10%  One 1500 word workbook, 40%, covering 4 of the 12 topics in the module. It is due in two parts: Part 1 on Friday 8 October, and Part 2 on Friday 5 November.  one 3000 word research essay, 50%; due: Friday 10 December, 4 pm. o A list of essay topics will be provided, and students are also encouraged to develop their own essay topic, subject to approval by Robert van Krieken. o Please submit your essay via the module’s Blackboard site, and also submit a printed copy me directly (not to the School office).

The workbook is designed to encourage participation, to develop your capacity to read the course materials and references critically, and to identify the key issues emerging from such a critical analysis.

The research essay is a vehicle for you to undertake independent research, and to apply the understanding of various theoretical perspectives to a particular issue or case study. The essay also assesses the skills of critical analysis, the development of an argument, and written communication.

RESOURCES

Web Resources A listing of web resources in law can be found at:

 Social Science Information Gateway, Sociology of Law and Crime: www.sosig.ac.uk/roads/subject-listing/World-cat/sociolaw.html  Sociosite’s Sociology of Right: www.sociosite.net/topics/right.php  WWW Virtual Library, Law: www.vlib.org/Law.html  Law and Social Theory Blog (still in early stages of development!): http://lst.nfshost.com/

MODULE OUTLINE

SCHEDULE

Week Topic Date

1 Introduction - Why law and social theory? 15 Sept

2 Power, discipline and government: Michel Foucault 22 Sept

3 Between facts and norms: Jürgen Habermas 29 Sept

4 Closure & openness in the legal system: Niklas Luhmann 6 Oct

5 The force of the legal field: Pierre Bourdieu 13 Oct

6 The power of language: ethnomethology & symbolic interactionism 20 Oct

7 Processes of civilization and decivilization: Norbert Elias 27 Oct

8 Reading week 3 Nov

9 Capitalism, democracy and the rule of law: the Frankfurt School 10 Nov

10 Capitalism: Karl Marx 17 Nov

11 Rationalisation: Max Weber 24 Nov

12 Moral community: Emile Durkheim 1 Dec

Week 1 - Introduction: Why law and social theory? In the first week we will begin by discussing the module as a whole, examining what is distinctive about social theory as opposed to political theory, philosophy, and jurisprudence, identifying what social theory might be able to offer legal scholars and practitioners. In the second seminar, we’ll work with the example of globalization and law as a case study, to clarify how a major concern for legal practitioners as well as theorists requires an understanding of broader social processes and developments which can only come from outside the legal arena itself, from social theory.

Reading Alan Hunt, ‘The problematisation of law in classical social theory’, B&T Chapter 1. John Flood, ‘Globalisation and law’, B&T Chapter 16.

Discussion questions  Pick one of the classical social theorists and explain how their work contributes to our understanding of legal institutions and practices.  What makes social theory, ‘social’?  What does the term ‘globalisation’ refer to, and what does it mean for legal practitioners?  What are the implications of Hardt & Negri’s approach to the concept of ‘Empire’ for legal approaches to sovereignty, constitutional law and international law?  In what ways can processes of globalization be seen as undermining or weakening the rule of law?

Additional Reading Craig Calhoun, ‘Social Theory and the Law: Systems Theory, Normative Justification, and Postmodernism’ (1988-89) 83 Northwestern University Law Review 398. A. Claire Cutler, ‘Globalization, the Rule of Law, and the Modern Law Merchant: Medieval or Late Capitalist Associations?’ (2001) 8 (4) Constellations 480. Peter Drahos and Braithwaite, John, ‘The globalisation of regulation’ (2001) 9 (1) Journal of Political Philosophy 103. Michael Hardt & Antonio Negri (2000) Empire Cambridge, Mass.: Harvard University Press 3. Kanishka Jayasuriya, 'Globalization, sovereignty, and the rule of law: from political to economic constitutionalism?' (2001) 8 (4) Constellations 442. Andreas Kalyvas, ‘Feet of clay? Reflections on Hardt's and Negri's Empire’ (2003) 10 (2) Constellations 264. Imelda Maher, ‘Competition law in the international domain: networks as a new form of governance’ (2002) 29 (1) Journal of Law & Society 111. Susan Marks, ‘Empire's Law’ (2003) 10 Indiana Journal of Global Legal Studies 449. Michael Rosen, ‘Classical sociology and the law’ (1985) 5 (1) Oxford Journal of Legal Studies 61. William Scheuerman, ‘Economic globalization and the rule of law’ (1999) 6 (1) Constellations 3. —, ‘Globalization and the fate of law’ in D. Dyzenhaus (ed.) Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart, 1999) —, ‘Reflexive law and the challenges of globalization’ (2001) 9 (1) Journal of Political Philosophy 81. Martin Shapiro, ‘The globalization of freedom of contract’ in M. Shapiro and A. Stone Sweet, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2003).

Week 2 - Power, discipline and government: Michel Foucault The social theorists most commonly referred to in current legal research include Foucault, Habermas and Luhmann, so we will begin by looking at the work of Foucault. In a sense it is remarkable that his ideas have been taken up to the extent that they have in legal studies, since he wrote very little directly about law. The implications of his work for the study of law emerge more from his more general analysis of the operation of power and knowledge, both central to legal institutions. This week we will examine his approach to these two questions, as well as his analysis of modernity as a ‘disciplinary society’, the concept of ‘governing through freedom’, and we will look at a case study which attempts to draw on Foucault’s work to explain a particular example of contemporary mechanisms of governance.

Reading Gary Wickham, ‘Foucault and law’, B&T Chapter 13. Michel Foucault, ‘Two lectures’(Lecture Two) Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (Brighton: Harvester, 1980) 92. Robert van Krieken, ‘Legal informalism, power and liberal governance’ (2001) 10 (1) Social & Legal Studies 5.

Discussion questions  How does Foucault approach the relationship between power and knowledge?  We usually see power and freedom as opposed to each other; how does Foucault’s concept of liberal governmentality frame the relationship between them differently?  Can you think of examples of social governance from the perspective of Foucault’s work?

Additional Reading S. Ashenden, ‘Reflexive governance and child sexual abuse: Liberal welfare rationality and the Cleveland inquiry’ (1996) 25 (1) Economy & Society 64. Vikki Bell, ‘Governing childhood: neo-liberalism and the law’ (1993) 22 (3) Economy & Society 390. *Michel Foucault, ‘Truth and juridical forms’ in J. D. Faubion (ed.) The Essential Works of Foucault 1954-1984, Vol. 3: Power (New York: New Press, 2000) 1. *—, ‘Governmentality’ in J. D. Faubion (ed.) The Essential Works of Foucault 1954-1984, Vol. 3: Power (New York: New Press, 2000) 201. *—, ‘Omnes et Singulatim: towards a criticism of ‘political reason’’ in J. D. Faubion (ed.) The Essential Works of Foucault 1954-1984, Vol. 3: Power (New York: New Press, 2000) 298. John Braithwaite, ‘The new regulatory state and the transformation of criminology’ in D. Garland and R. Sparks (eds), Criminology and Social Theory (Oxford: Oxford University Press, 2000) 47. Danica Dupont and Pearce, Frank, ‘Foucault contra Foucault: reading the ‘Governmentality’ papers’ (2001) 5 (2) Theoretical Criminology 123. Mathieu Deflem, ‘Surveillance and Criminal Statistics: Historical Foundations of Governmentality’ (1997) 17 Studies in Law, Politics & Society 149. —, ‘The Logic of Nazification: The Case of the International Criminal Police Commission ("Interpol")’ (2002) 43 (1) International Journal of Comparative Sociology 21. Danica Dupont and Pearce, Frank, ‘Foucault contra Foucault: reading the ‘Governmentality’ papers’ (2001) 5 (2) Theoretical Criminology 123. François Ewald, ‘Norms, discipline, and the law’ (1990) 30 Representations 138. Michel Foucault, Discipline and punish (London: Allen & Unwin, 1977). David Garland, ‘The limits of the sovereign state’ (1996) 36 British Journal of Criminology 445. Alan Hunt, ‘Foucault’s Expulsion of Law: Towards a Retrieval’ Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993) 267. Alan Hunt and Wickham, Gary, Foucault and Law (London: Pluto Press, 1994). Kirstie M. McClure, ‘Taking liberties in Foucault's triangle: sovereignty, discipline, governmentality, and the subject of rights’ in A. Sarat and T. R. Kearns (eds), Identity, Politics, and Rights (Ann Arbor: University of Michigan Press, 1995) 149. P. Minkkinen, ‘The juridical matrix’ (1997) 6 (3) Social & Legal Studies 425. John Pratt, ‘Governmentality, neo-liberalism and dangerousness’ in R. Smandych (ed.) Governable Places: Readings on Governmentality and Crime Control (Aldershot: Ashgate, 1999) 133. Nikolas Rose, ‘Beyond the Public/Private Division: Law, Power and the Family’ (1987) 14 (1) Journal of Law & Society 61. Nikolas Rose and Valverde, Mariana, ‘Governed by Law?’ (1998) 7 (4) Social & Legal Studies 541. Jonathan Simon, ‘In the Place of the Parent: Risk Management and the Government of Campus Life’ (1994) 3 Social & Legal Studies 15. Jonathan Simon, ‘Between power and knowledge: Habermas, Foucault, and the future of legal studies’ (1994) 28 (4) Law & Society Review 947. C. Smith, ‘The sovereign state v Foucault: law and disciplinary power’ (2000) 48 (2) Sociological Review 283. Victor Tadros, ‘Between governance and discipline: the law and Michel Foucault’ (1998) 18 Oxford Journal of Legal Studies 75. G. Turkel, ‘Foucault, Michel: Law, Power, and Knowledge’ (1990) 17 (2) Journal of Law & Society 170. Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton: Princeton University Press, 2003).

Week 3 - Between facts and norms: Jürgen Habermas Jürgen Habermas provides a completely different conceptual apparatus for a social theoretical analysis to law, and this week we will examine some of its core elements. He understood modern society, for example, as characterised by a distinction between two spheres or realms: the social ‘system’ and the ‘lifeworld’. The concept of the ‘system’ refers to mechanisms of abstraction and formalization, the demands arising from the need to coordinate human action. The lifeworld refers to something more familiar, the world of cultural production, communication, social solidarity, community and identity. The general line of development which Habermas sees as characterizing the modern world is the increasing ‘colonization’ of the lifeworld by monetarisation and bureaucratisation. Part of this process is a growing ‘juridification’ of social institutions and social interaction, in which legal norms and ideas come to dominate other sources of ethical and conceptual orientation. We will also examine his analysis of the public sphere, the importance of rational public discourse, and the role which law can play in mediating the relationship between system and lifeworld, rather than merely facilitating the colonization of the lifeworld through juridification.

Reading Bo Carlsson, ‘Jurgen Habermas and the sociology of law’ B&T Chapter 4. Jürgen Habermas, ‘Paradigms of Law’ (1996) 17 Cardozo Law Review 771.

Discussion questions  Explain Habermas’s distinction between the ‘system’ and the ‘lifeworld’. Give examples.  Do you think Habermas sees legal institutions as the basis of the increasing juridification of social life, or as the basis of a form of deliberative democracy which sustains the lifeworld? Or both?  Outline the main elements of a Habermasian approach to pornography.  Is Habermas’s approach to law essentially an argument for formal justice, in preference to the pursuit of substantive justice?

Additional Reading Hugh Baxter, ‘System and lifeworld in Habermas’s theory of law’ (2002) 23 (2) Cardozo Law Review 473. —, ‘Habermas’ discourse theory of law and democracy’ (2002) 50 (1) Buffalo Law Review 205. *Craig B. Bleifer, ‘Looking at pornography through Habermasian lenses: affirmative action for speech’ (1996) 22 (1) New York University Review of Law & Social Change 153. Myra Bookman, ‘Still facing "the dilemma of the fact": Gilligan and Habermas (re)visited’ (1999) 76 (4) Denver University Law Review 977. Craig Calhoun, ‘Social Theory and the Law: Systems Theory, Normative Justification, and Postmodernism’ (1988-89) 83 Northwestern University Law Review 398. Mathieu Deflem, ‘Social control and the theory of communicative action’ (1994) 22 (4) International Journal of the Sociology of Law 355. —, Habermas, Modernity and Law (London: Sage, 1996). —, ‘The boundaries of abortion law: Systems theory from Parsons to Luhmann and Habermas’ (1998) 76 (3) Social Forces 775. A. Fraser, ‘Marx for the managerial revolution: Habermas on law and democracy’ (2001) 28 (3) Journal of Law & Society 361. Jürgen Habermas, ‘Law and Morality’ in S. M. McMurrin (ed.) The Tanner Lectures on Human Values (Vol.8) (Salt Lake City: University of Utah Press, 1988) —, ‘Multiculturalism and the liberal state’ (1995) 47 (5) Stanford Law Review 849. *—, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, Mass.: MIT Press, 1996). —, ‘Between Facts and Norms: an author’s reflections’ (1999) 76 (4) Denver University Law Review 937. John P. McCormick, ‘Max Weber and Jurgen Habermas: the sociology and philosophy of law during crises of the state’ (1997) 9 (2) Yale Journal of Law & the Humanities 297. Kevin Olson, ‘Do rights have a formal basis? Habermas’ legal theory and the normative foundations of the law’ (2003) 11 (3) Journal of Political Philosophy 273. William Outhwaite, ‘Law and the State’ Habermas: A Critical Introduction (Cambridge: Polity Press, 1994) 137. David Rasmussen, ‘Communication and the Law’ Reading Habermas (Oxford: Basil Blackwell, 1990) 75. Robert Shelly, ‘Institutionalising deliberative democracy’ (2001) 26 (1) Alternative Law Journal 36. Jonathan Simon, ‘Between power and knowledge: Habermas, Foucault, and the future of legal studies’ (1994) 28 (4) Law & Society Review 947. Brian Z. Tamanaha, ‘The view of Habermas from below: doubts about the centrality of law and the legitimation enterprise’ (1999) 76 (4) Denver University Law Review 989. Gunther Teubner, ‘After Legal Instrumentalism? Strategic Models of Post-Regulatory Law’ in G. Teubner (ed.) Dilemmas of Law in the Welfare State (Berlin: Walter de Gruyter, 1986) —, ‘Juridification: concepts, aspects, limits, solutions’ in G. Teubner (ed.) Juridification of Social Spheres: A Comparative Analysis in the Areas of Labour, Corporate, Antitrust and Social Welfare Law (Berlin: Walter de Gruyter, 1987) 299. John Tweedy and Hunt, Alan, ‘The Future of the Welfare State and Social Rights: Reflections on Habermas’ (1994) Law & Society Review.

Week 4 - Closure and openness in the legal system: Niklas Luhmann Niklas Luhmann’s work has also become a central reference point for many social scientific analyses of the legal system. This week we will begin by examining his approach to the question of law’s closure in relation to the rest of society. He addresses the idea that law might possess greater or lesser degrees of autonomy or closure in relation to the extra-legal world by focusing on the character of law as a system of communication. He sees law as an “autopoietic” or self- reproducing system of meaning and communication rather than as a set of institutional forms, structures or practices, so we will explore exactly how this works and attempt to apply the analysis to particular case studies.

Reading Alex Ziegert, ‘The thick description of law: an introduction to Niklas Luhmann’s theory’, B&T Chapter 3. Niklas Luhmann, ‘Operational closure and structural coupling: the differentiation of the legal system’ (1992) 13 Cardozo Law Review 1419.

Discussion questions  What does Luhmann mean by approaching law as an ‘autopoietic system’?  Explain the way in which Luhmann sees the legal system as both ‘operationally closed’ and ‘cognitively open’. Can you think of counter-examples, such as when the legal system is not operationally closed at all?  In his systems-theoretical approach to society as a whole, do you think that Luhmann accords a special place to law, and how would you explain what is distinctive about it?  How does ‘structural coupling’ work, what is the relationship between law and politics, law and the economy, law and civil society?  Do you think Luhmann’s approach is too abstract? What place does it give to human action?

Additional Reading Neil Andrews, ‘The inherited ‘peculiarities of the English’: exploring the culture of the common law statements of directors’ duties with Luhmann and Bourdieu’ in M. Andenas and D. Sugarman (eds), Developments in European Company Law: Volume 3/1999 Directors’ Conflicts of Interest: Legal, Socio-Legal and Economic Analyses (London: Kluwer, 2000) 163. Hugh Baxter, ‘Autopoiesis and the “relative autonomy” of law’ (1998) 19 (6) Cardozo Law Review 1987. Hugh Collins, Regulating Contracts (Oxford: Oxford University Press, 1999). Roger Cotterrell, ‘Sociological perspectives on legal closure’ in A. Norrie (ed.) Closure or Critique: New Directions in Legal Theory (Edinburgh: Edinburgh University Press, 1993) 175. Mathieu Deflem, ‘The boundaries of abortion law: Systems theory from Parsons to Luhmann and Habermas’ (1998) 76 (3) Social Forces 775. François Ewald, ‘The law of law’ in G. Teubner (ed.) Autopoietic Law: A New Approach to Law and Society (Berlin: de Gruyter, 1988) 36. Bob Jessop, ‘Capitalism, nation-state and surveillance’ in D. Held and J. B. Thompson (eds), Social Theory of Modern Societies: Anthony Giddens and his critics (Cambridge: Cambridge University Press, 1989) 103. Michael King, ‘Child Welfare within Law: The Emergence of a Hybrid Discourse’ (1991) 18 Journal of Law & Society 303. —, ‘The "truth" about autopoiesis’ (1993) 20 Journal of Law & Society 218. —, ‘Future uncertainty as a challenge to law’s programmes: the dilemma of parental disputes’ (2000) 63 (4) Modern Law Review 523. —, ‘The construction and demolition of the Luhmann heresy’ in J. Priban and D. Nelken (eds), Law’s New Boundaries: the Consequences of Legal Autopoiesis (Aldershot: Ashgate, 2001) 123. Michael King and Schutz, A., ‘The Ambitious Modesty of Niklas Luhmann’ (1994) 21 (3) Journal of Law & Society 261. Michael King and Thornhill, Chris, ‘‘Will the real Niklas Luhmann stand up, please’. A reply to John Mingers’ (2003) 51 (2) Sociological Review 276. Niklas Luhmann, A Sociological Theory of Law (London: Routledge, 1985). —, ‘The self-reproduction of law and its limits’ in G. Teubner (ed.) Dilemmas of Law in the Welfare State (Berlin: de Gruyter, 1986) —, ‘Closure and openness: on reality in the world of law’ in G. Teubner (ed.) Autopoietic Law: A New Approach to Law and Society (Berlin: de Gruyter, 1988) 335. —, ‘The third question: the creative use of paradoxes in law and legal history’ (1988) 15 (2) Journal of Law & Society 153. —, ‘The unity of the legal system’ in G. Teubner (ed.) Autopoietic Law: A New Approach to Law and Society (Berlin: de Gruyter, 1988) 12. —, ‘Law as a social system’ (1989) 83 (1/2) Northwestern University Law Review 136. —, ‘Legal argumentation: an analysis of its form’ (1995) 58 (3) Modern Law Review 285. Christos Mantziaris, ‘The dual view theory of the corporation and the Aboriginal corporation’ (1999) 27 Federal Law Review 283. John Mingers, ‘Can social systems be autopoietic? Assessing Luhmann’s social theory’ (2002) 50 (2) Sociological Review 278. David Nelken, ‘Changing paradigms in the sociology of law’ in G. Teubner (ed.) Autopoietic Law: A New Approach to Law and Society (Berlin: de Gruyter, 1988) 191. Marcelo Neves, ‘From the autopoiesis to the allopoiesis of law’ (2001) 28 (2) Journal of Law & Society 242. Richard Nobles & David Schiff, ‘A story of miscarriage: law in the media’ (2004) 31(2) Journal of Law & Society 221. H.A. Rottleuthner, ‘Purified Sociology of Law - Niklas Luhmann on the Autonomy of the Legal- system’ (1989) 23 (5) Law & Society Review 779. Gunther Teubner, ‘How the law thinks: toward a constructivist epistemology of law’ (1989) 23 Law & Society Review 727. —, ‘Company interest: the public interest of the enterprise "in itself"‘ in R. Rogowski and T. Wilthagen (eds), Reflexive Labour Law (Amsterdam: Kluwer, 1993) 21. —, Law as an Autopoetic System (Oxford: Blackwell, 1993). —, ‘Altera pars audiatur: law in the collision of discourses’ in R. Rawlings (ed.) Law, Society and Economy (Oxford: Clarendon Press, 1997) 149. —, ‘Economics of gift - Positivity of justice - The mutual paranoia of Jacques Derrida and Niklas Luhmann’ (2001) 18 (1) Theory, Culture & Society 29. Gunther Teubner, Nobles, Richard and Schiff, David, ‘The autonomy of law: an introduction to legal autopoiesis’ in J. Penner, D. Schiff and R. Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (London: Butterworths, 2002) 897. Robert van Krieken, ‘Legal reasoning as a field of knowledge production: Luhmann, Bourdieu and law’s autonomy’, unpublished paper: http://hdl.handle.net/2123/967

Week 5 - The force of the legal field: Pierre Bourdieu The French sociologist Pierre Bourdieu works with a completely different vocabulary and conceptual apparatus which produces a distinctive perspective on legal institutions and practice. Rather than dividing society into relatively autonomous ‘systems’ and ‘sub-systems’, he sees social life as made up of interdependent and competing fields comprising of a variety of ‘players’ or ‘actors’ pursuing their own particular strategies, drawing on differing degrees and types of ‘capital’, all of which interact which each other in relatively volatile ways. This week we will examine the way in which Bourdieu places more emphasis on the practices of legal actors and their material and institutional constitution, which draws our attention to different aspects of law, and we will discuss some examples of how current developments in international law can be analysed from this perspective.

Reading Mikael R. Madsen & Yves Dezalay, ‘The power of the legal field’, B&T Chapter 10. Pierre Bourdieu, ‘The force of law: towards a sociology of the juridical field’ (1987) 38 (5) Hastings Law Journal 814.

Discussion questions  What is Bourdieu referring to when he speaks of ‘fields’?  How would you explain what the ‘field of law’ is, and how does it relate to other social fields?  What does the concept of ‘legal habitus’ refer to?  Take one recent major legal development and explain how it would be understood differently if approached in terms of Bourdieu’s strategic analysis.

Week 6 - The power of language: ethnomethology & symbolic interactionism Bourdieu’s work draws our attention to law as a realm of symbolic contestation and the importance of language in constituting its power relations, and it is useful to elaborate on this theme by examining an older set of traditions in social theory, symbolic interactionaism and ethnomethodology, to see how they have been applying to legal practices and institutions. This week we will discuss both these strands of social theory, the kinds of research into legal practice they have generated, as well as focusing on the application of these perspectives in two case studies: a prominent rape trial and the work of judges.

Reading Max Travers, ‘Symbolic interactionism and law’, B&T Chapter 11. Robert Dingwall, ‘Ethnomethodology and law’, B&T Chapter 12. Gregory M. Matoesian, ‘Language, law and society: policy implications of the Kennedy Smith rape trial’ (1995) 29 Law & Society Review 669.

Discussion questions  What do the approaches adopted in ethnomethodology and symbolic interactionism tell you about the operation of power in legal settings?  Which aspects of legal institutions and practices can be explained more effectively than other theoretical perspectives if we focus more directly on their language and symbolic dimensions?  How would it be possible to reconcile a sensitivity to the linguistic and symbolic aspects of law with a more formalistic a ‘black letter’ approach?

Additional Reading *J.M. Atkinson and Drew, Paul, Order in Court: The Organisation of Verbal Interaction in Judicial Settings (London: Macmillan, 1979). Aaron V. Cicourel, The Social Organization of Juvenile Justice (London: Heinemann, 1967). William E. Conklin, The Phenomenology of Modern Legal Discourse: The Juridical Production and the Disclosure of Suffering (Aldershot: Ashgate, 1998). John M. Conley and O’Barr, William M., Rules versus Relationships: The Ethnography of Legal Discourse (Chicago: University of Chicago Press, 1990). *—, Just Words: Law, Language and Power (Chicago: University of Chicago Press, 1998). Roger Cotterrell, ‘Some aspects of the communication of constitutional authority’ in D. Nelken (ed.) Law as Communication (Aldershot: Ashgate, 1996) 129. Robert Dingwall, ‘Language, Law, and Power: Ethnomethodology, Conversation Analysis, and the Politics of Law and Society Studies’ (2000) 25 (3) Law & Social Inquiry 885. Robert Dingwall and Greatbach, David, ‘The virtues of formality’ in J. Eekelaar and M. MacLean (eds), A Reader on Family Law (Oxford: Oxford University Press, 1994) 391. Patricia Ewick and Silbey, Susan, ‘Narrating social structure: stories of resistance to legal authority’ (2003) 108 (6) American Journal of Sociology 1328. Bernard S. Jackson, ‘Thematization and the narrative typifications of law’ in D. Nelken (ed.) Law as Communication (Aldershot: Ashgate, 1996) 175. *Michael Lynch, ‘Preliminary notes on judges' work: the judge as a constituent of courtroom “hearings”’ in M. Travers and J. F. Manzo (eds), Law in Action (Aldershot: Ashgate, 1997) 99. David Nelken, ‘Law as communication: constituting the field’ in D. Nelken (ed.) Law as Communication (Aldershot: Ashgate, 1996) 3. Gregory M. Matoesian, Reproducing Rape: Domination through Talk in the Courtroom (Cambridge: Polity Press, 1993). —, Law and the language of identity : discourse in the William Kennedy Smith rape trial (Oxford: Oxford University Press, 2001). *Max Travers and Manzo, J. (eds) Law in Action: Ethnomethodological and Conversation Analytic Approaches to Law (Aldershot: Ashgate, 1997). James Boyd White, Justice as Translation (Chicago: University of Chicago Press, 1990).

Week 7 - Processes of civilization and decivilization: Norbert Elias Another body of social theory which would usefully inform a theoretical analysis of the current state of law is the work of the German sociologist Norbert Elias on state formation and its relationship to the structuring of subjectivity, and on what he referred to as processes of civilization and decivilization. Many of the political, social and economic concerns seen as amenable to a particularly legal ‘solution’ relate to the dominant concepts of how human beings ought to behave, what the principles governing interactions between human individuals and institutions are, and these are in turn related to our understanding and experience of what it means to be ‘civilized’, with the concept of ‘civilization’ being a reference point for much legal discourse. This week we will look at what Elias had to say about civilization and decivilization, how his analysis can inform our understanding of law, as well as some examples of the application of his analysis to the study of crime and crime control.

Reading *Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations, Revised Edition (Oxford: Blackwell, 2000), 363. Robert van Krieken, ‘Governance, law and civilisation’ in S. Kenny, R. van Krieken, J. Loza and M. Muetzelfeldt (eds), Civilising the State: Civil Society, Policy and State Transformation (Geelong: Centre for Citizenship & Human Rights, Deakin University, 2000) 239.

Discussion questions  How does Elias’s approach to the concept ‘civilization’ differ from the everyday understanding of that word?  In what senses can we be said to have undergone a process of civilization over the centuries? What are the counterarguments to this idea?  In the Australian Mabo judgement on native title, it was said that it would be contrary to the principles of any civilized society to refuse to recognize some form of native title. Do you agree, and why? Can you explain why this was said in 1991 and not in 1941?  Are civilization and barbarism necessarily incompatible with each other, and what role does law play in the interplay between the two?

Additional Reading John Braithwaite, ‘Shame and modernity’ (1993) 33 (1) British Journal of Criminology 1. Stefan Breuer, ‘The denouements of civilization: Elias and modernity’ (1991) 128 International Social Science Journal 401. Abram de Swaan, ‘Widening Circles of Identification: Emotional Concerns in Sociogenetic Perspective’ (1995) 12 (2) Theory, Culture & Society 25. —, ‘Widening Circles of Disidentification: On the Psycho- and Sociogenesis of the Hatred of Distant Strangers-Reflections on Rwanda’ (1997) 14 (2) Theory, Culture & Society 105. —, ‘Dyscivilization, mass extermination and the state’ (2001) 18 (2-3) Theory, Culture & Society 265. Manuel Eisner, ‘Modernization, self-control and lethal violence’ (2001) 41 British Journal of Criminology 618. Herman Franke, The Emancipation of Prisoners: A Socio-Historical Analysis of the Dutch Prison Experience (Edinburgh: Edinburgh University Press, 1995). David Garland, ‘Punishment and culture. Cultural forms and penal practices’ Punishment and Modern Society: A Study in Social Theory (Chicago: University of Chicago Press, 1990) 193. *J. Goudsblom and S. Mennell (eds), The Norbert Elias Reader (Oxford: Blackwell, 1998). Alvin W. Gouldner, ‘Doubts about the uselessness of men and the meaning of the civilizing process’ (1981) 10 (3) Theory & Society 413. Alan Hunt, ‘The role of law in the civilizing process and the reform of popular culture’ (1995) 10 (2) Canadian Journal of Law & Society 5. Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001). Linklater, Andrew, ‘Norbert Elias, the ‘Civilizing Process’ and the sociology of international relations’ (2004) 41 International Politics 3. John McGuire, ‘Judicial violence and the "civilizing process"; race and the transition from public to private executions in colonial Australia’ (1998) 29 (111) Australian Historical Studies 187. Stephen Mennell, ‘Decivilizing processes: theoretical significance and some lines of research’ (1990) 5 (2) International Sociology 205. William I. Miller, The Anatomy of Disgust (Cambridge, Mass.: Harvard University Press., 1997). John Pratt, ‘Toward the ‘decivilizing’ of punishment?’ (1998) 7 (4) Social & Legal Studies 487. —, ‘Norbert Elias and the civilized prison’ (1999) 50 (2) British Journal of Sociology 271. —, Punishment and Civilization (London: Sage, 2002). Roland Robertson, ‘`Civilization,’ civility and the civilizing process’ Globalization: Social Theory and Global Culture (London: Sage, 1992) 115. Pieter Spierenburg, The spectacle of suffering. Executions and the evolution of repression: from a preindustrial metropolis to the European experience (Cambridge: Cambridge University Press, 1984). Carolyn Strange, ‘The Undercurrents of Penal Culture: Punishment of the Body in Mid- Twentieth-Century Canada’ (2001) 19 Law & History Review 343. Robert van Krieken, Norbert Elias (London: Routledge, 1998). —, ‘The Barbarism of Civilization: Cultural Genocide and the ‘Stolen Generations’’ (1999) 50 (2) British Journal of Sociology 297. —, ‘The ‘best interests of the child’ and parental separation: on the ‘civilizing of parents’ (2005) 68(1) Modern Law Review 25. Barry Vaughan, ‘The civilizing process and the janus-face of modern punishment’ (2000) 4 (1) Theoretical Criminology 71. Cas Wouters, ‘Changing patterns of social controls and self-controls - On the rise of crime since the 1950s and the sociogenesis of a ‘Third nature’’ (1999) 39 (3) British Journal of Criminology 416.

Week 8 – Reading week

Week 9 - Capitalism, democracy & the rule of law: the Frankfurt School Habermas’s work was preceded by two earlier Frankfurt School theorists, Franz L. Neumann and Otto Kirchheimer, whose analysis of the Weimar Republic and the emergence of Nazism in Germany have important implications for the critical analysis of liberalism and capitalism. This week we will look at another approach to social which draws on Marxism, but focuses more directly on the events of the 20th century which have so decisively shaped the world we live in today, engaging with questions more familiar to legal theorists, including the concepts of the rule of law and democracy. We will discuss Neumann and Kirchheimer’s more positive assessment of institutions of liberal democracy, such as the rule of law, despite the problems characterizing their operation under capitalism, and the connections between their analysis of Germany in the 1930s and our understanding of the current dynamics of globalization.

Reading Franz L. Neumann, ‘The change in the function of law in modern society’ in The Democratic and the Authoritarian State (New York: Free Press, 1957). Otto Kirchheimer, ‘Legality and legitimacy’ in W. E. Scheuerman (ed.) The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996) 44.

Discussion questions  Do you see a ‘strong state’ and an effective ‘rule of law’ as antithetical to democracy and individual liberty, or as essential to them?  From the perspective of Neumann & Kirchheimer, what is the significance of the observation that the operation of the legal system is generally indeterminate?  Is competitive monopoly capitalism rendered compatible with democracy through legal institutions and mechanisms, such as a constitution, separation of powers, corporate regulation, etc.?  What do Kirchheimer and Neumann tell us about the social foundations of the rule of law?  What went wrong with the Weimar Republic?

Additional Reading Herbertus Buchstein, 'A heroic reconciliation of freedom and power: on the tension between democratic and social theory in the late work of Fanz L. Neumann' (2003) 10 (2) Constellations 228. David S. Caudill, ‘The Rechtsstaat: magic wall or material necessity?’ (1982) 4 (2) Houston Journal of International Law 169. *Roger Cotterrell, ‘Social foundations of the rule of law: Franz Neumann and Otto Kirchheimer’ in Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) 160. Otto Kirchheimer, Politics, Law and Social Change: Selected Essays of Otto Kirchheimer (New York: Columbia University Press, 1969). Otto Kirchheimer, ‘Remarks on Carl Schmitt's Legality and Legitimacy’ in W. E. Scheuerman (ed.) The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer (Berkeley: University of California Press, 1996) 64. Otto Kirchheimer and Neumann, Franz L., Social Democracy and the Rule of Law (London: Allen & Unwin, 1987). Franz L. Neumann, Behemoth: The Structure and Practice of National Socialism (New York: Oxford University Press, 1944). *Claus Offe, ‘The problem of social power in Franz L. Neumann's thought’ (2003) 10 (2) Constellations 211. *William E. Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994). William E. Scheuerman, ‘Franz Neumann: theorist of globalization?’ (2001) 8 (4) Constellations 503.

Week 10 – Capitalism: Karl Marx The work of theorists like Habermas, Neumann and Kirchheimer, and many others, is rooted in that of Karl Marx and his critique of the underlying mechanisms of capitalist political economies. This week we will examine Marx’s analysis of the connections between the commodity form, money and the accumulation of capital on the one hand, and the emergence of modern conceptions of rights, law and the state on the other. We’ll address questions such as the (im)possibility of ‘freedom of contract’ within fundamentally unequal economic relations, the relationship between the state and capital accumulation, and the possibility of developing a more differentiated Marxist approach to law which makes distinctions between its various component parts: corporations, constitutional, family, labour, property, etc. We will also discuss a critical debate dealing with how the Marxist approach to law was operationalised under communism, and what that example means for our understanding of the rule of law.

Reading Robert Fine, ‘Marxism and the social theory of law’, B&T Chapter 5. Paul Phillips, Marx and Engels on Law and Laws (Oxford: Martin Robertson, 1980) 40-109.

Discussion questions  What is Marx’s view of the relationship between capitalist capital accumulation and the rule of law under liberal democracy?  Can one have freedom of contract between rich entrepreneurs and workers with nothing to sell but their labour power?  How would Marx approach more recent developments in contract law?  What would a form of the ‘rule of law’ which was consistent with Marx’s analysis of capitalism look like?

Additional Reading Richard L. Abel, ‘Capitalism and the rule of law: precondition or contradiction?’ (1990) 15 (4) Law & Social Inquiry 685. Maureen Cain, ‘The Main Themes of Marx’ and Engels’ Sociology of Law’ (1974) 1 British Journal of Law & Society 136. —, ‘On babies, Bibles, and bathwater’ (1990) 15 (4) Law & Social Inquiry 679. Maureen Cain and Hunt, Alan, Marx and Engels on Law (London: Academic Press, 1979). *Hugh Collins, Marxism and Law (Oxford: Oxford University Press, 1982). John L. Comaroff, ‘Re-Marx on repression and the rule of law’ (1990) 15 (4) Law & Social Inquiry 671. *Roger Cotterrell, ‘Law, ideology and power: the Marxist tradition’ in Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) 113. Robert Fine, ‘The rule of law and Muggletonian Marxism: the perplexities of Edward Thompson’ (1994) 21 (2) Journal of Law & Society 193. —, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (London: Pluto, 1995). Peter Gabel and Feinman, Jay, ‘Contract Law as Ideology’ in D. Kairys (ed.) The Politics of Law: A Progressive Critique. 3rd Edition (New York: Pantheon, 1998) 497. Eugene D. Genovese, ‘The Hegemonic Function of Law’ Roll Jordan Roll (New York: Pantheon Books, 1976) 25. Douglas Hay, ‘Property, Authority and the Criminal Law’ in D. Hay and e. al. (eds), Albion’s Fatal Tree: Crime and Society in Eighteenth Century England (New York: Pantheon, 1975) 103. Alan Hunt, ‘The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law’ (1985) 19 Law & Society Review 11. —, ‘Marxism, legal theory and jurisprudence’ in P. Fitzpatrick (ed.) Dangerous Supplements: Resistance and Renewal in Jurisprudence (London: Pluto Press, 1991). —, ‘Law, State and Class Struggle’ Explorations in Law and Society: Toward a Constitutive Theory of Law (New York: Routledge, 1993) 17. —, 'Marxist theory of law' in D. Patterson (ed.) A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell, 1999) 355. Bob Jessop, ‘On Recent Marxist Theories of Law, the State and Juridico-Political Ideology’ (1980) 8 (4) International Journal of the Sociology of Law. Marc Kessler, ‘Legal Discourse and Political Intolerance’ (1993) 27 (3) Law & Society Review 559. *Martin Krygier, ‘Marxism and the rule of law: reflections after the collapse of communism’ (1990) 15 (4) Law & Social Inquiry 633. Karl Marx and Engels, Friedrich, ‘Preface to Contribution to the Critique of Political Economy’ in R. Tucker (ed.) The Marx-Engels Reader (New York: W.W. Norton, 1978) 3. —, ‘The Relation of State and Law to Property’ in C. J. Arthur (ed.) The German Ideology (New York: International Publishers, 1985) D. Milovanovic, ‘Weber and Marx on Law - Demystifying Ideology and Law - Toward An Emancipatory Political Practice’ (1983) 7 (4) Contemporary Crises 353. Evgeny B.Pashkunis, Law and Marxism: A General Theory (London: Ink Links, 1978). —, Pashukanis: Selected Writings on Marxism and Law (London: Academic Press, 1980). —, General theory of law and Marxism (New Brunswick, NJ: Transaction Publishers, 2001). *Paul Phillips, Marx and Engels on Law and Laws (Oxford: Martin Robertson, 1980). Richard A. Posner, ‘The sociology of the sociology of law: a view from economics’ (1995) 2 European Journal of Law & Economics 265. Nicos Poulantzas, ‘Modern Law’ State, Power Socialism (London: New Left Books, 1978) Steven Spitzer, ‘Marxist Perspectives in the Sociology of Law’ (1983) 9 Annual Review of Sociology 103. E.P. Thompson, ‘The Rule of Law’ Whigs and Hunters: The Origin of the Black Act (New York: Pantheon, 1975) A. Vincent, ‘Marx and Law’ (1993) 20 (4) Journal of Law & Society 371.

Week 11 - Rationalisation: Max Weber Max Weber devoted much detailed attention to a sociological analysis of law, not least because he saw the expansion of law as a distinct social and political realm as a core element of a specifically ‘modern’ society. This week we will examine Weber’s analysis of the emergence of formal, ‘legal’ rationality and bureaucracy as an underlying principle of social and political organisation, the effects this has on the fabric of social relations, his account of differing forms of ‘authority’, and the implications of his analysis for more contemporary concerns with the relationship between individual freedom and increasingly globalized forms of interdependency and governance. The case study we will look at concerns the formalization of human rights in the Canadian Charter of Rights and Freedoms, and the contradictions in inherent in attempting to find legally rational solutions to problems inherently bound up with non-legal, political questions concerning values, norms and power.

Reading Max Weber, Economy and Society (Berkeley: University of California Press, 1978)753-84; 880-900. *Roger Cotterrell, ‘Legality and Political Legitimacy in the Sociology of Max Weber’ in Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) 134.

Discussion questions  Explain Weber’s distinctions between traditional, charismatic and rational-legal authority; does it make sense of how contemporary Australian political life operates?  Can one use Weber’s analysis of the ‘iron cage of modernity’, the fundamental contradiction between the efficiency and power of formal rationality and its evacuation of content and meaning, to improve our understanding of contemporary socio-legal questions? (E.g., the tension between formal and substantive justice)  What is the relationship between Weber’s and Habermas’s approaches to law?  Weber argued that legal rules, institutions and practices operate to legitimate the exercise of political power (authority and domination); to what extent do you think this explains the operation of legal systems today, and what distinctions should we make between the application of the argument to different jurisdictions (e.g., Australia and China)?

Additional Reading Martin Albrow, ‘Legal positivism and bourgeois materialism: Max Weber’s view of the sociology of law’ (1975) British Journal of Law & Society 14. Harold J. Berman and Reid Jr, Charles J., ‘Max Weber as legal historian’ in S. Turner (ed.) The Cambridge Companion to Weber (Cambridge: Cambridge University Press, 2000) 223. *Cary Boucock, In the Grip of Freedom: Law and Modernity in Max Weber (Toronto: University of Toronto Press, 2000): Chapter 5: ‘The constitutionalization of individual rights in Canada: a case study in the ‘dynamic’ of legal rationalization’. Mathieu Deflem, ‘Bureaucratization and social control: historical foundations of international policy cooperation’ (2000) 34 (3) Law & Society Review 739. David Dyzenhaus, ‘The legitimacy of legality’ (1996) 46 (1) University of Toronto Law Journal 129. Sally Ewing, ‘Formal Justice and the Spirit of Capitalism: Max Weber’s Sociology of Law’ (1987) 21 Law & Society Review 487. Stephen M. Feldman, ‘An interpretation of Max Weber’s theory of law: metaphysics, economics, and the iron cage of constitutional law’ (1991) 16 (2) Law & Social Inquiry 205. Wolf Heydebrand, ‘Process rationality as legal governance’ (2003) 18 (2) International Sociology 325. *Alan Hunt, ‘Max Weber’s Sociology of Law’ The Sociological Movement in Law (London: Macmillan, 1978) James C. Ketchen, ‘Revisiting Fuller’s critique of Hart - managerial control and the palology of legal systems: the Hart-Weber nexus’ (2003) 53 (1) University of Toronto Law Journal 1. David Kettler and Meja, Volker, ‘Legal formalism and disillusioned realism in Max Weber’ (1996) 18 Polity 307. *Anthony T. Kronman, Jurists in Profile: Max Weber (Stanford: Stanford University Press, 1983). Assaf Likhovski, ‘Protestantism and the rationalization of English law: A variation on a theme by Weber’ (1999) 33 (2) Law & Society Review 365. *John P. McCormick, ‘Max Weber and Jurgen Habermas: the sociology and philosophy of law during crises of the state’ (1997) 9 (2) Yale Journal of Law & the Humanities 297. D. Milovanovic, ‘Weber and Marx on Law - Demystifying Ideology and Law - Toward An Emancipatory Political Practice’ (1983) 7 (4) Contemporary Crises 353. Roscoe Pound, Social Control Through Law (New Haven: Yale University Press, 1942). Max Rheinstein, ‘Introduction’ in M. Rheinstein (ed.) Max Weber on Law in Economy and Society (Cambridge, MA: Harvard University Press, 1966) John M. Scheb II and Matheny, Albert R., ‘Judicial reform and rationalization: the diffusion of court reform policies among the American states’ (1988) 10 (1) Law & Policy 25. Ronen Shamir, ‘Formal and substantive rationality in American law: a Weberian perspective’ (1993) 2 (1) Social & Legal Studies 45. Dhananjai Shivakumar, ‘The pure theory as ideal type: defending Kelsen on the basis of Weberian methodology’ (1996) 105 (5) Yale Law Journal 1383. Gunther Teubner, ‘Substantive and reflexive elements in modern law’ (1983) 17 (2) Law & Society Review 239. David Trubek, ‘Max Weber on Law and the Rise of Capitalism’ (1972) 3 Wisconsin Law Review 720. —, ‘Reconstructing Max Weber’s Sociology of Law’ (1985) 37 Stanford Law Review 919. —, ‘Max Weber’s Tragic Modernism and the Study of Law in Society’ (1986) 20 Law & Society Review 573. Stephen Turner and Factor, Regis, ‘Decisionism and politics: Weber as constitutional theorist’ in S. Lash and S. Whimster (eds), Marx Weber: Rationality and Modernity (Londo: Allen & Unwin, 1987) 334. Stephen P. Turner and Factor, Regis A., Max Weber: The Lawyer as Social Thinker (London: Routledge & Kegan Paul, 1994). Peter Vincent-Jones, ‘Contract and business transactions: a socio-legal analysis’ (1989) 16 (2) Journal of Law & Society 166. Paul Walton, ‘Max Weber’s sociology of law: a critique’ in P. Carlen (ed.) The Sociology of Law (Keele: University of Keele, Sociological Review Monograph, 1976). Max Weaver, ‘Is a general theory of adjudication possible? The example of the principle-policy distinction’ (1985) 48 (6) Modern Law Review 613. Max Weber, ‘Basic Concepts of Sociology; The Formal Qualities of Modern Law’ in M. Rheinstein (ed.) Max Weber On Law in Economy and Society (New York: Simon & Schuster., 1954) 1.

Week 12 - Moral community: Emile Durkheim It is arguable that all of the themes found in social theoretical analyses of law relate in one way or another to the core question posed by Durkheim: how do modern societies retain social and moral coherence within the ever-growing multiplicity of cultural and normative positions generated by ever-increasing social, economic and political differentiation, and what is the specific role of law in addressing this problem? This week we will examine Durkheim’s own approach to this question, his account of the increasing division of labour, the transition from mechanical to organic solidarity together with developments in the associated forms of sanction and punishment, the relationship between internalised self-discipline and externally imposed social regulation, as well as the symbolic dimensions of legal processes and their role in social order.

Reading Emile Durkheim, ‘Two Laws of Penal Evolution [1900]’ (1973) 2(3) Economy & Society 285; (1969) 38 University of Cincinnati Law Review 32. Joseph E. Kennedy, ‘Monstrous offenders and the search for solidarity through modern punishment’ (2000) 51 (5) Hastings Law Journal 829.

Discussion questions  How does Durkheim think social order is maintained in the face of divergent cultural and ethical orientations?  What symbolic functions does the punishment of crime have? Would you agree that crime (and its punishment) can be seen as part of the normal functioning of society, rather than as in indication of its breakdown?  Outline Durkheim’s understanding of the main developmental trajectory of modern law and society, and explain the extent to which this perception of the history of legal institutions might be applicable to some contemporary socio-legal developments.  Do you agree that the forms taken by legal institutions and ideas are a kind of ‘index’ to the character of the society within which they are located? Can you think of current examples which would usefully illustrate this argument?

Additional Reading Kitty Calavita, Dimento, Joseph, Geis, Gilbert and Forti, Gabrio, ‘Dam disasters and Durkheim: an analysis of the theme of repressive and restitutive law’ (1991) 19 (4) International Journal of the Sociology of Law 407. B. Carlsson and Hoff, D., ‘Dealing with insolvency and indebted individuals in respect to law and morality’ (2000) 9 (2) Social & Legal Studies 293. M. Clarke, ‘Durkheim’s sociology of law’ (1976) 3 British Journal of Law & Society 249. Roger Cotterrell, ‘Durkheim on legal development and social solidarity’ (1977) 4 British Journal of Law & Society 266. —, ‘The Durkheimian tradition in the sociology of law’ (1991) 25 Law & Society Review 923. *—, ‘Law, morality and solidarity: the Durkheimian tradition’ in Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995) 178. *—, Emile Durkheim: Law in a Moral Domain (Edinburgh: Edinburgh University Press, 1999). David Garland, ‘Durkheim’s Theory of Punishment: A Critique’ in D. Garland and P. Young (eds), The Power to Punish (London: Heinemann, 1983) *Alan Hunt, ‘Emile Durkheim: Towards a Sociology of Law’ The Sociological Movement in Law (London: Macmillan, 1978) *Steven Lukes and Scull, Andrew, Durkheim and the Law. Michael Rosen, ‘Classical sociology and the law’ (1985) 5 (1) Oxford Journal of Legal Studies 61. W Thomas, J., ‘Social Solidarity and the Enforcement of Morality Revisited - Some Thoughts on HLA Harts Critique of Durkheim’ (1994) 32 (1) American Criminal Law Review 49. B.S. Turner, ‘Outline of A Theory of Human Rights’ (1993) 27 (3) Sociology 489.

Short Loan

J.M. Atkinson and Drew, Paul, Order in Court: The Organisation of Verbal Interaction in Judicial Settings (London: Macmillan, 1979). Reza Banakar and Max Travers (eds) An Introduction to Law and Social Theory (Oxford: Hart, 2002) Craig B. Bleifer, ‘Looking at pornography through Habermasian lenses: affirmative action for speech’ (1996) 22 (1) New York University Review of Law & Social Change 153. Cary Boucock, In the Grip of Freedom: Law and Modernity in Max Weber (Toronto: University of Toronto Press, 2000). Craig Calhoun (ed.) Contemporary Sociological Theory (Oxford: Blackwell, 2002). Hugh Collins, Marxism and Law (Oxford: Oxford University Press, 1982). John M. Conley and O’Barr, William M., Just Words: Law, Language and Power (Chicago: University of Chicago Press, 1998). Roger Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press, 1995). Roger Cotterrell, Emile Durkheim: Law in a Moral Domain (Edinburgh: Edinburgh University Press, 1999). Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations, Revised Edition (Oxford: Blackwell, 2000) Anthony Elliott (ed.) The Blackwell Reader in Contemporary Social Theory (Oxford: Blackwell, 1999) J. D. Faubion (ed.) The Essential Works of Foucault 1954-1984, Vol. 3: Power (New York: New Press, 2000). J. Goudsblom and S. Mennell (eds), The Norbert Elias Reader (Oxford: Blackwell, 1998). Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, Mass.: MIT Press, 1996). Alan Hunt, The Sociological Movement in Law (London: Macmillan, 1978) R. A. Kagan, M. Krygier and K. Winston (eds), Legalty and Community. On the Intellectual Legacy of Philip Selznick (Maryland: Rowman & Littlefield, 2002) 249. Anthony T. Kronman, Jurists in Profile: Max Weber (Stanford: Stanford University Press, 1983). Martin Krygier, ‘Marxism and the rule of law: reflections after the collapse of communism’ (1990) 15 (4) Law & Social Inquiry 633. Steven Lukes and Scull, Andrew, Durkheim and the Law. Niklas Luhmann, Das Recht der Gesellschaft (Frankfurt a.M.: Suhrkamp, 1993). (Translation by Alex Ziegert). Michael Lynch, ‘Preliminary notes on judges' work: the judge as a constituent of courtroom “hearings”’ in M. Travers and J. F. Manzo (eds), Law in Action (Aldershot: Ashgate, 1997) 99. John P. McCormick, ‘Max Weber and Jurgen Habermas: the sociology and philosophy of law during crises of the state’ (1997) 9 (2) Yale Journal of Law & the Humanities 297. Claus Offe, ‘The problem of social power in Franz L. Neumann's thought’ (2003) 10 (2) Constellations 211. Paul Phillips, Marx and Engels on Law and Laws (Oxford: Martin Robertson, 1980). George Ritzer and Barry Smart (eds) Handbook of Social Theory, (London: Sage: 2001) William Scheuerman, Between the Norm and the Exception: The Frankfurt School and the Rule of Law (Cambridge, MA: MIT Press, 1994). Gunther Teubner, Law as an Autopoetic System (Oxford: Blackwell, 1993). Max Travers and Manzo, J. (eds) Law in Action: Ethnomethodological and Conversation Analytic Approaches to Law (Aldershot: Ashgate, 1997).

ASSESSMENT

General philosophies of assessment practice 1. The School favours ‘deep learning’ over ‘shallow learning’. In other words, we are most interested in evidence that students have made conceptual developments in their ways of understanding and interpreting the world. 2. Students are encouraged to explore areas of particular interest to themselves, and will be rewarded for initiative and ingenuity in discovering relevant material. 3. An idea that cannot be expressed clearly probably has not been understood clearly. We therefore value evidence of logical, coherent thought, argument and expression in essays. 4. While recognising that the political and ethical values of students vary widely, the School does not reward or condone unreasoned polemic or racism or sexism.

Marking criteria The following criteria will be used in assessing your written work 1. Content  extent of reading  accuracy of knowledge  breadth and depth of knowledge  relevance of information  sufficiency of evidence and documentation

2. Understanding  understanding of problem or project  judgement of significance of material  awareness/understanding of different arguments in reading  recognition of implications of evidence  ability to think critically  grasp of relevant theory  understanding of ethics and values relevant to reading and subject matter

3. Independence of thought  judgement and initiative in reading and research  originality in use and interpretation of evidence  development of argument  independence in use of concepts and language

4. Writing style  correctness of grammar and scholarly documentation  organisation and presentation of material  clarity of writing style  originality and creativity of writing style

Guide to interpretation of grades This guide indicates broadly the qualitative judgements implied by the various grades which may be awarded.

A+, A, A- Excellent. A deep and systematic engagement with the assessment task, with consistently impressive demonstration of a comprehensive mastery of the subject 4.2, 4, 3.8 matter, reflecting; 76.67, 73.33, 70  a deep and broad knowledge and critical insight as well as extensive reading;  a critical and comprehensive appreciation of the relevant literature or theoretical, technical or professional framework;  an exceptional ability to organise, analyse and present arguments fluently and lucidly with a high level of critical analysis, amply supported by evidence, citation or quotation;  a highly-developed capacity for original, creative and logical thinking. B+, B, B- Very Good. A substantial engagement with the assessment task, demonstrating 3.6, 3.4, 3.2  a thorough familiarity with the relevant literature or theoretical, technical or 66. 67, 63.33, 60 professional framework;  well-developed capacity to analyse issues, organise material, present arguments clearly and cogently well supported by evidence, citation or quotation;  some original insights and capacity for creative and logical thinking. C+, C, C- Good. An intellectually competent and factually sound answer marked by, 3, 2.8, 2.6  evidence of a reasonable familiarity with the relevant literature or theoretical, 56.67, 53.33, 50 technical or professional framework;  good developed arguments, but more statements of ideas;  arguments or statements adequately but not well supported by evidence, citation or quotation;  some critical awareness and analytical qualities;  some evidence of capacity for original and logical thinking. D+, D Satisfactory. An acceptable level of intellectual engagement with the assessment task 2.4, 2.2 showing 46.67, 43.33  some familiarity with the relevant literature or theoretical, technical or professional framework;  mostly statements of ideas, with limited development of argument;  limited use of evidence, citation or quotation;  limited critical awareness displayed;  limited evidence of capacity for original and logical thinking. D- Acceptable. The minimum acceptable level of intellectual engagement with the 2 assessment task, with 40  the minimum acceptable appreciation of the relevant literature or theoretical, technical or professional framework;  ideas largely expressed as statements, with little or no developed or structured argument;  minimum acceptable use of evidence, citation or quotation;  little or no analysis or critical awareness displayed or is only partially successful;  little or no demonstrated capacity for original and logical thinking. E Fail – Marginal, may be compensated. A factually sound answer with a partially 1.6 successful, but not entirely acceptable, attempt to 30  integrate factual knowledge into a broader literature or theoretical, technical or professional framework;  develop arguments;  support ideas or arguments with evidence, citation or quotation. F Fail – Unacceptable, cannot be compensated. An unacceptable .level of intellectual 1.0 engagement with the assessment task, with 20  no appreciation of the relevant literature or theoretical, technical or professional framework;  no developed or structured argument;  no use of evidence, citation or quotation;  no analysis or critical awareness displayed or is only partially successful;  no demonstrated capacity for original and logical thinking. G Fail - Unacceptable, cannot be compensated. No intellectual engagement with the 0.4 assessment task. 0.02