Sociology of Law Journals, Sociology of Law Abstracts, Sociology of Law Bibliography
It has been said that respect for the law, in a democracy, has derived from the fact that the law expressed the will of the citizens. But how could this hold good for the minority groupy? - David Emile Durkheim. "Equality before the law does not describe the actual operation of any known legal system, past or present." - Donald Black.
The notion of social justice per se will not be fixed or static or certain; rather, it will be a more dynamic expression of events and actors subject to the social, economic, and political forces that shape ideas and issues pertaining to law, crime, and deviant behavior. - Arrigo.
Studying the legal system and its ramifications, we are faced with the need to look at the theory and policy which support the present system of law, but also to "talk and think about how things could be," to understanding injustices and how we might correct them to produce a better life for all. That may mean tinkering with the system as it is, and the need for fundamental change to the social order.
Nlklas Luhmann's sociology of law was a description of the emergence of legal structures as the development of congruent reactions to the disappointment of norm expectations. In a society of Individuals faced with an excess of possibilities, the criteria for the selection of such laws was the enhancement of norms congruency.
Jurgen Habermas refers to a duality in modern law. That is the duality of tension between facts and norms.
The facts: The facts Habermas refers to are the positive
(enacted) law that is reliably enforced. He also calls this "facticity," the
social facts defining the "free choice" within which the individual may
determine his actions. Law as specifically enacted and enforced is empirical. What the law
says can be related to empirical facts.
The norms: The norms Habermas refers to are our expectations about
the validity and legitimacy of the law. Validity affects our
expectations of fairness, justice, right.
Habermas speaks of legitimacy, following Kant, who based
such legitimacy on morality. Habermas criticizes Kant's dependence on morality because of
the pluralism of the modern democratic society. Habermas
claims there is no more overriding morality, values, sacred
belief to provide social integration, because there
are other moralities, values, sacred beliefs in the challenge of
pluralism.
The tension: Between the facticity of positive and enforced laws and the validity or
legitimacy of that system of law, there is always tension. The law on which Habermas
depends to create social integration in modern society must be
law that we obey because we believe it right and just for all to obey. The tension is
between the claims of legitimacy and the facts of the enacted and enforced law.
If there are groups
or situations for which the law does not produce just results, then do we lose legitimacy?
Do we lose some of our social integration? And at what point does that become critical to
the society?
Habermas' mechanism for resolving the tension, and thus providing legitimacy and social
integration, is the commitment of all individuals in good faith to the discourse of the community as a whole. Habermas believes that rational argument of
citizens can replace the morality lost to pluralism. We must note, however, that Habermas
uses very specific definitions for these terms. He doesn't mean an ordinary committee
debate over coming to terms on norms. He means the transcendent language of a community
willing to negotiate validity claims and committed to abiding by the community consensus.
The criticism: Once we begin to question the legitimacy of law, assuming that reason will
ultimately suffice for us to decide, how do we draw the limits?
Anthony Giddens: "Once we admit the principle of
the critical evaluation of beliefs, how can anything be exempt?" (op. cit.. p.245)
One modern application: In California's recently enacted three
strikes law we encounter the legitimacy issues faced by modern democracies. In this
proposition, voted into the State Constitution by popular vote, there is a major penalty
enhancement for violent felonies when the defendant has a prior felony conviction (a
strike). For a third conviction, (that is, for a defendant with two prior strikes) the
penalty is 25 years to life.
Traditional knowledge is not just personal or
spiritual.. Traditional knowledge also has economic value. Certain communities depend on
their traditional knowledge for survival. Therefore traditional knowledge needs to be
protected.
Communities are now looking up to intellectual
property rights laws to preserve, protect, and promote their traditional knowledge.
Certain communities have also sought to make equitable use of their traditional knowledge.
Currently, only a few nations offer explicit sui generis protection for traditional
knowledge.