SOC293H1 Lecture Notes - Lecture 4: Mug Shot, Dan Kahan, Moral Authority
Lecture 3: Marxist Approach to Law
Marxist Theory
Marx viewed society as primarily an uneasy relationship between two groups with incompatible economic
interest – bourgeoisie and proletariat
Base and superstructure
Marxist approaches to law
What is the role of law in modern society?
This explanation takes as its core class divisions and so asks – how does capital affect law?
- Needs of capital dictate law (base superstructure)
i.e. Chambliss
- In those instances where the state tires to regulate capital, capitalists find ways to avoid it
English factory acts
- Capitalism is also a set of ideas, including ideas about the value of work and this can be expressed through
law (though not only)
i.e. O’Grady
It is structural Marxism because law is not an instrument but we understand law based on our understanding of
law in the litigation system
Crime rates and incarceration
Rising incarceration despite falling crime rate
- Rise in imprisonment due to changes in policy that increased amount of time that offenders are serving in
prison and not crime rates
- Entire increase was a result of changes in sentencing policy and practice
Three strikes mandatory sentencing, widespread of abandonment of parole in state and federal system
Galanter, Marc
Instrumental vs structural Marxism
Superstructure (such as laws on vagrancy) is not merely determined by an economic base
Structural Marxism – what are the internal processes through which the ruling classes come to dominate and
deflect challenges to that position?
Law has some autonomy from the ruling class
find more resources at oneclass.com
find more resources at oneclass.com
Durkheim
Durkheim vs Marx
- Both were in similar eras but each focuses on different aspects in the changes around them
- Marx – class conflict
- Durkheim – change in the nature of our society and what pulls us together
Social solidarity and conscience collective
- Society can ONLY function if there first exists a shared framework of meanings and moralities
- What makes us function as a society?
Primitive modern societies
- Mechanical organic solidarity (we all had to do the same things which underpinned our shared meanings)
- Creation of factories and rise of TRADES (specialization)
Post feudalism has people having skills so what keeps us together? We need to rely on each other to live
Sources of social solidarity in modern societies?
- Law as one (not the only) of our social solidary sources (focus on punishment)
Durkheim and law
Collective conscience is the set of morals, meaning, rules, norms that we all agree on in order to function as a
society
Law is a visible form of social solidarity (i.e. religion)
Is punishment just about law and order?
- What are we expressing as a society when we are prisoning millions of people? What does it tell us about
our shared norm?
So how IS punishment a moral form of social action? (not just law and order)
Punishment is a reaction
Begin with crime
- Crimes are not ‘given’ or ‘natural’ categories – we said as a society that crime is crime
- We defined everything what is crime
- Crimes are those acts which seriously violate a society’s conscience collective
- Compare to how we define what is a crime according to Marx
Bourgeoisies define that is crime according to their economic interest
find more resources at oneclass.com
find more resources at oneclass.com
Durkheim
What causes crime to be punished (rather than dealt with in other ways)
- What violates our norms/offends us
Some crimes violate sacred values, which leads to outrage
- Our commitment to these values has the character of religious attachment
Is punishment a calculated instrument for the rational control of society?
- For Marx, it is rational – bourgeoisies protecting their interests
- Durkheim, it is emotional
Emotional due to third element – the onlookers (society)
- We want to see law mobilized in a way that fulfills our outrage
Passions provoked by crime are spontaneous
- BUT these reactions are voiced collectively and give rise to an important social consequence
When a crime occurs, norms are threatened but the reaction to them then strengthens norms
This completes the circle – sacred moral order passionate reactions demonstrates and reinforces the moral
order
Durkheim: punishment/law in changing societies
Function of punishment is unchanged throughout history, but the way we punish has changed
- Whatever form society took, there is different basis for social solidarity
- Punishment and function of it is the same BUT since our moralities have changed, the WAY we punish has
changed
Primitive societies repressive laws cause suffering (public nature, showing to others)
Modern society restitutive laws cause restoration
- Link form of punishment to values of society (individuality, freedom, etc)
- Character and values of modern society – what are crimes in modern society?
- How do we punish modern society? Look to values/morality to understand the punishment
Focus on the individual
Respect for human dignity (both in protections and in punishment)
Thus limits severity of punishment but since we are interdependent, imprisonment (which is solitary) is
actually quite severe
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Marx viewed society as primarily an uneasy relationship between two groups with incompatible economic interest bourgeoisie and proletariat. Needs of capital dictate law (base superstructure) In those instances where the state tires to regulate capital, capitalists find ways to avoid it. Capitalism is also a set of ideas, including ideas about the value of work and this can be expressed through law (though not only) It is structural marxism because law is not an instrument but we understand law based on our understanding of law in the litigation system. Rise in imprisonment due to changes in policy that increased amount of time that offenders are serving in prison and not crime rates. Entire increase was a result of changes in sentencing policy and practice. Three strikes mandatory sentencing, widespread of abandonment of parole in state and federal system. Superstructure (such as laws on vagrancy) is not merely determined by an economic base. Law has some autonomy from the ruling class.
