Montesquieu

Concept of “spirit of the laws”
o Law as an expression of a particular cultural complex, including dispositions,
climate and manners
o Human reason as applied to needs of specific societies
 This compares to what Geertz calls “legal sensibilities”
 Sensitivity to cultural knowledge that shapes a culture’s practices
(in this case, law or law-like activities)
 Both see law as culturally constructed based on local nuances and
imaginings particular to a culture
 Laws that suit spirit of nations; dispositions, climate, manners, religion, govt, etc
Liberty: what law permits; political liberty in moderate govts. Power to check abuse
Dispositions, similar to habitus (Pierre Bourdieu)
State of Nature: fear of inequality, uncertainty
Law of Nature: peace - from strength in reciprocity, social interaction brings pleasure,
knowledge via unity
State of Society: reduces fear, weakness; when equality ceases, war prevails
Law: human reason as applied to needs of specific societies
 Law emerges from ‘religion’; philosophy, legislators (political and civil laws)
Political States: different governments; union of wills
Rousseau








Social contract: man is born free, and everywhere he is in shackles
State of nature to civil state based on contract
Substitute justice for instincts (nature) to make actions moral
Gains what is lost (natural for civil liberty); right of state to regulate religion
Creates moral, collective body
Crime-relation between individual and law
Justice from God but mediated by law and government
Contract theory of law (state of nature to contract among humans) for preservation of all;
crime is a relationship between law and individuals
Plato


Social convention created to suppress the strong; theory based on the “ideal republic”;
crime comes from ignorance; punishment is to deter and educate
Essentialism: discovering or speaking about the essential (essence) characteristics that
define humans or a cultural community
Aristotle


Law set by convention and custom
Theory of justice - freedom and equality (though he did not see women as equal to
men); justice is in proportion to crime
Hobbes




Right of nature: self preservation
o Liberty, equality and power of each over ‘self preservation’
o Absence of external impediments
State of Nature: war; nasty, brutish and short
Natural Law: universal, use of reason to analyse human needs (social, personal);
qualities
o Laws emerge from it; no justice without law
Commonwealth: membership in a collective based on consensus


Subject to sovereign power (source of law)
Law makes actions ‘crimes’, injustices, wrong and obliges men to obey
o Right of nature is self-preservation
Maine


Contrast between Archaic and modern law provides and evolutionary perspective where
he sees societies evolving from status (instinct, sentiments deriving from kinship and
community) to contract (individual as a basis of rights)
Popsicle and Durkheim critiqued the idea that what held community members together is
instinct and sentiment to a collective group
o Individual initiative existed in archaic societies with both kinds of collective and
individual systems coexisting
Durkheim


Social facts; explained by other social facts and not through psychology
Explanation lf suicide: a limit of social capital; death resulting directly or indirectly from a
positive or negative act of the victim himself, which he knows will produce this result
o Durkheim wanted to demonstrate that the suicide rate provided a measure of
social pathology. According to Durkheim, anomie and egoism resulted from the
collapse of traditional restraints, and thus their incidence could be used as an
index for social pathology.
 FAMOUS IDEA:
o “CONSCIENCE COLLECTIVE”: based on sharing of values, beliefs by average
members of a group which creates ‘social solidarity’ (a social fact)
 Highly determinate, collective authority absolute, high intensity (religion,
totemism), transcends human interests, superior value to society as a
whole
 Society characterized by particular type of solidarity
 Mechanical: a less advanced society where solidarity is based on
sameness; every individual is like everyone else and can perform
every function that others perform
 Division of labour by age and sex, meaning solidarity must
be achieved through common beliefs (collective
conscience)
 Organic: characteristic of modem, post-industrial societies and
are individualistic, weak collective conscience and division of
labour is based on the specialization of tasks for dependency
 Value given to equality, dignity
 Laws restore status quo (restitutive)
Crime goes against social solidarity
Punishments are symbolic affirmation of collective conscience
 Both necessary for social integration\
 Become humanized in modern societies
CRIME:
 Act of will (intentionality); individual action - mens rea (guilty mind); judge
according to norms
-law follows from social solidarity
- offending social solidarity
Marx





Both Marx, Weber, and Durkheim argued that tradition (religion, customs) have not
disappeared in modern societies
Concerned with the relationship between law and social structure
Secularized law removing it from religion and natural foundations
o Law is the instrument of ruling class
o Crime as anti social (resistance)
o Material conception of law (as superstructure)
Known for social conflict theory; a component of the four major paradigms of sociology
Weber





Provides ideal types (generalization)
Ideal types: model that has sufficient application
LAW: legally enforceable norms by coercion by legitimate authority/officials
Rule of law (ideology) produces stability and predictability
Authority (legitimate power) vs power (coercion or persuasion; can be illegitimate)
o Traditional: validity from habit, custom; patriarchal, religious and values status
quo
o Charismatic: based on personal qualities; routinization transforms it into
traditional or rational
o Legal Rational: grounded in rational rules, procedures (modern, capitalist
societies)
 Bureaucratic, based on achieved criteria, credentials, systematic,
legitimate authority, secular laws and written laws
LEGAL THOUGHT:
Rational: application of general rules and procedures to all
Irrational: similar cases dealt with differently
Formal: application of rules and procedures internal to legal system
Substantive: application of criteria external to legal system (values)
Formal Rational: application of internal rules to similar cases in an identical manner (legal
briefs, consensual contracts); abstract and general rules
Formal Irrational: case decided by external criteria; revelations, magic
Substantive/Rational: plea bargaining, sexual preferences, human rights, need for defence,
humanistic definitions of crime
Substantive/irrational: khadi justice (arbitrary, ruling based on the case; application of political,
emotional, ideological values; no general rules are applied (Jury decisions)
Law emerged from substantive rational to formal rational
 Breaking the legal norm based on intentional action (mens rea)
o Intentional action: motives and intentions of individual actions)
Geertz

Legal sensibilities:
o Sensitivity to cultural knowledge that shapes a culture’s practices
Malinowski

The rules conceived and acted upon as binding obligation
o Rules that are felt and regarded as obligations of one person and the rightful
claims of another
KNOWN FOR:
 Trobrianders in Papua New Guinea
o Functionalist: culture/institutions satisfy psychological needs
o Studied their matrilineal kinship, which become the model for his ideas
 Reciprocity: is the law, defined as “binding obligation”
o The function of law is to satisfy human needs
o Law is one body of customs but custom and law are different
 Laws are:
o ‘Rules that are too practical, burdensome and personally important to be left to
custom, religious sanctions, goodwill or abstract agency”
o ‘ curb natural propensities, to hem in and control instincts and impose a nonspontaneous, compulsory behaviour”
 Crime is:
o Law in breach; breakdown of social order
o Punishment is to restore order, create cohesion and uniformity
 They use cricket as a form of conflict resolution
o This was introduced by missionaries
o It is a substitution for violent and destructure tribal battles
 Winners get betelnut and yams for successful game play
Foucault




POWER, DISCOURSE, DISCIPLINE AND PUNISHMENTS
o Important ideas; concerned with the system as opposed to the ‘individual’
Power: diffused throughout society and not inhere in persons (sovereign) or institutions
but are all conduits of power; power must be performed to get things done
o Teachers, police, prison guards
Discourse: saying and how we talk about things and people creates these things
o How we talk about the poor, criminals, minorities
 Creates perceptions and stereotypes in certain ways on individuals in
certain groups
 This type of talk has impacts
Knowledge: power, and those who control knowledge control discourse and power
IMPORTANT IDEA:
o Discipline and Punishments
 Archaic societies may have repressive punishments
 Public display, spectacle, tortrue
 But modern societies have private punishments
 Prison
 Idea on how to discipline and punish prisoners better; less physically but through
means of surveillance and control
PANOPTICON
 Symbol of disciplinary power




These were towers placed in the center of prisons in order to watch all the
prisoners
 Prisoners could not see into the tower, but people could see them leaving
prisoners unsure when they are being watched, if at all
 Discipline without physicality; instills being on ‘your best behaviour’
because you never know if you are being watched
Law is neither the condition for liberation of the individual nor solely the result of class
domination (Marx); Law is power, techniques of control, discourse
Punishments are not less repressive (Durkheim), but more efficient in modern societies
Religion as a form of collective conscience or social control, does not disappear in
modern democratic, secular societies
o Religion is view as a foundation of law in Pakistan and other Muslim socieites
*****REVIEW OUTLAWED IN PAKISTAN*****
Aquinas


Custom is law if people tolerate it
Law is rule or measure (reason) of acts
o Induce or restrain and directed to common goods
o Distinguished between eternal, divine, natural and human laws
o Coercive power left to leader, family head, community leader
Bhoannan



Cultural relativism and uniqueness of cultures
Studied the Tiv of Nigeria
o Jir (moots); judicial process comprises Truth
o Right; norms; customs; legal institutions
Laws are master norms; customs ‘reinstitutionalized’ from the social to the legal
o Double institutionalization
Sally-Falk Moore


Enforceable norms
Wrote Fifty Turbulent Years of Legal Anthropology
o Outlines three general interpretations in response to the questions
 “How the legal acquires a particular form in a particular social setting
 They follow chronological periods (colonial-post-colonial) but old ideas
and themes reappear in new forms and overlap
 Law as cultural
 Law as dominations (power)
 Law as problem solver (functional)

Schapera

Ideological Approach: studied the Tswana of South Africa
o Studied codes (rules) and codify them (empirical)
 Laws are enforced by authority
o Customs are obligatory and binding
 Difference is judicial enforcement; different kinds of sanctions
 Law comes from law, Courts, chief’s decree by legislations
PURPOSE OF LAW: social cohesion


Social cohesion: extent of connectedness and solidarity among groups in society. It
identifies two main dimensions: the sense of belonging of a community and the
relationships among members within the community itself.
Charges and punishments among the Tswana are based on the extent of damage,
habitual offence, admission of guilt, status of victim & kinship
Morgan


Idea on the Historical Place of Property
o Influential in forming some of Marx’s ideas
Nader’s concept of harmony ideology as coercive and as empowering
o dispute resolution practices within minority ethnically distinct communities may serve
not only a quasi-legal, but also a political, hegemonic, function.
Rosen

Criticizes Weber’s views based on his study in Morocco, since Quadi rulings are not ad
hoc or arbitrary
o Khadi Justice by Quadi clerics; a substantial irrational authority
 A legal system where judges use ethical precepts to rule case by case,
rather than uniformly applying abstract rules (Weber’s substantive
irrational)
 Quadi (judge) applies Islamic rules systematically applied; law and
society interact; law is socially embedded
 The legal system is more complex in developing countries than Weber
(rationalism, and Durkheim (solidarity) recognize
Gluckman

Traditional societies (Lozi in Africa) are rational; legal systems are more complex than
Weber’s ideal type or Durkheim’s repressive laws
 Legal universals (comparative methods)
o Studied african law, the Lozi law
 Used Hoebel’s concept of trouble cases (case study method on disputes)
to abstract general rules
Reasonable Man: a set of rules accepted by all members of the society as defining
rights and reasonable ways in which persons ‘ought’ to behave in relation to each other and to
things including ways of obtaining protection for one’s rights”
 Different from ‘upright man’ (perfect man)
Pospisil


Cases studies to extract common features
Legal realism: judicial pronouncements (pragmatic; rulings of judges), rather than
formal rules (legal formalism)
o Used trouble cases to identify substantive (agreed upon rules that define rights
and obligations (based on cultural values) and procedural laws (procedures to
settle disputes)
Hoebel

A social norm is legal if its neglect or infraction is regularly met by the threat or fact, by
the application of physical force or by an individual or group possession of the socially
recognized privilege of acting
Criteria/Functions/Methods
 Criteria: regularity; invocation of authority; sanctions
 Functions of law: defines relationships best. Members; coercive; disposes of “trouble
cases”; adaptability
 Method to study law: norms; behaviours; trouble cases; testing of cultural values;
disputes used for testing principles of law
Law and Custom
 Law is ‘rule of conduct enforced by sanctions administered by an individual or group with
recognizable authority, or by an identifiable locus of power’; crime as departure from law
 Custom is ‘ a habitual action or established practice, the infringement of which may lead
to negative, informal sanctions’; infringement may be a deviation
Locke

State of nature
o Complete freedom, equality; governed by law of nature (reason)
 Law of nature
o Will of god; law must govern accordingly; by reason; own preservation comes
from preservation of all
 Political or civil society (laws institutions)
o Needed to reduce fear, uncertainty
 Restrict freedom for common good
 United in one body, established law, judicature, authority to decide,
punish
Purpose
 Preservation of property (person, labour) mutual freedom
Law ends when tyranny begins - state of war
Emphasized freedom of conscience
Property: right to use; right to property in own person, labour, possessions transformed
by labour
Law (nature or human) is preservation of freedom, property for the common good
 Believed in ‘freedom of conscience’ (religion)
Comaroff & Roberts
Galanter

Argues that law and practice differ; traditional laws and secular laws, local and legal can
coexist (legal pluralism)
o In many countries, customary laws exist alongside these traditional/secular laws
 ****REVIEW OUTLAWED IN PAKISTAN****
 Law and practice differ, but how different laws come into play
Tradition and modern co-exist


Reinventing tradition in new ways
Modern law can reinforce tradition or change tradition to fit in modern societies
 Caste system and religion in India
Cowan
Dembour
Wilson
For instance, the ideas of Plato, Augustine, Aquinas, and Others, “Asking What is Morally
Right”, resonates with the discourse on human rights which Henkin describes as the “idea of our
time”. Similarly, Cowan, Dembour and Wilson, in Culture and Rights argue that “rights and
culture are mutually implicated’ and have emerged as global discourses. They also warn against
supporting dubious cultural claims that are in fact being used by powerful members to maintain
the status quo (e.g., gender); such claims based on a cultural or religious community’s rootedness
in tradition may have negative implications on some members of the community.
Definitions (not sure who they are tied to):
Diplomatic Immunity: a form of legal immunity that ensures diplomats are given safe passage
and are considered not susceptible to lawsuit or prosecution under the host country’s laws,
although they may still be expelled
Ethnic Essentialism: used in relation to a cultural community - stereotypes that may be applied
to whole communities disregarding internal differences
Strategic Essentialism: use of essentialist rhetoric by a community as a conscious political
strategy to stress their differences from the mainstream and to claim certain rights