The Prospects for Change: The Question of Justice in a Law & Society Framework

Authors

Michael W. Raphael, CUNY Graduate CenterFollow

Student Type

Ph.D.

Document Type

Presentation

Publication Date

6-3-2016

Abstract

What is the law and society framework and where has it gotten us? A student in a classroom might raise their hand and offer "understanding legal pluralism" as a possible answer. However, the conceptual problem with legal pluralism is the coexistence of potentially conflicting bases of justification. Given this, desiring to understand how the law shapes the structural underpinnings of whichever "legal" phenomena and its "ongoing transformation", is nevertheless an immense achievement that stops short of its underlying goal – the achievement of human dignity through human rights. For example, to talk about 'multi-stakeholder consultations' and other pithy phrases that describe different kinds of 'collective actors' that can come together and have a "meeting of the minds" is to conflate the moral principle on which a 'human right' stands with a legal framework based on cooperation of independent actors. As we try and come together to regulate for substantive change, it is necessary to recognize how the discourse we engage in divides us further. The law and society framework needs a new direction. First, one must understand the logic of discovery. After many turns and movements in philosophy, there has been a trend moving toward the extra-legal investigation of legal phenomena over the course of the 19th and 20th century that continues into the 21st century. This trend has produced a plethora of research under many different banners as it is now quite easy for scholars to specialize in some fragment of either the philosophy, history, economics, psychology, anthropology or sociology of law. Even literary studies of law have become of use to some judges in deciding 'hard cases'. The literatures that comprises the results of these extra-legal investigations are quite informative for addressing narrow policy questions, which in at least contemporary American society, can only lead to small short-term change. The law and economics movement, as one set of extra-legal investigations, has experienced success in coordinating their efforts while the law and society movement and other ventures into socio-legal research appear to face practical and theoretical barriers in the coordination of their research agenda. What are these barriers, and how do they constitute prevent change? That is, what are the terms and conditions of socio-legal research as things stand; and what negotiation is required to act as a 'corrective' to the trend of specialization in socio-legal research? To begin, scholars must examine one of the few basic premises that sociological analysis assumes – a general answer to the question of how society is organized according to some sort of agreement or contract. In law and society, more specifically, this feature is often misunderstood due to the emphasis on the liberal conception of law. Law, traditionally conceived, is based on an individual model of the actor with the question of freedom in partaking in a course of activity being answered according to different theoretical interests in political philosophy, sociology, political science, and anthropology. This idea is particularly intertwined with the notion of causation – that a produces an effect on b. The relation between freedom and causation is significant for law and society when considered in light of the structure-agency problem and the related conceptualizations of identity, self and the subject. The history of dealing with the structure-agency problem itself is one that addresses questions about modernity, postmodernity, structuralism, post-structuralism, (by which is it is meant the theory of the sign and its critique), structuration and its critique, and the inter-sectional structures of stratification (class, gender, race/ethnicity, etc.) and the politics of such inequality. It is clear, then, that what one has to say about the relation between freedom and causation bears heavily on what are traditionally thought of as sociological issues. Given this, what does the structure-agency problem, and therefore the relation between freedom and causation ultimately depend upon? Whereas structural functionalism conceived of it as a problem of order, others theorized it as a problem of conflict. It is neither – for both types of theory assume a state of nature as either a rhetorical device or a concept. From classical and medieval sources to Hobbes, Locke, Rousseau, the application of Kant through Rawls and Dworkin, and Habermas, the fundamental idea is that how society is organized rests upon some sort of agreement or contract. This premise informs the liberal, and even neo-liberal versions of both historical and analytical jurisprudence and classical and contemporary sociological theory. The crucial questions are: in what sense is the "social contract" social, and what are the implications for a workable concept of freedom and a corresponding concept of causation on which any theory of justice ultimately depends? In what follows, it is shown that this question is still unsettled through an exploration of how several prominent thinkers have considered the question of law and its relation to justice and the basis for society. Drawing on the cognitive and cultural turn, this critique offers a revision of the structure-agency problem and examines how the logic of discovery constitutes barriers in explaining socio-legal phenomena. Instead of maintaining distance from jurisprudence, law and society needs to unite with the human sciences to contribute to a model of the actor upon which socio-legal phenomena are explained in relation to the individuality of mind and to the locus of cognition that results from a cognitive sociology. Removing this obstacle is the reconciliation of the rampant individualism of liberalism, and the more recent neoliberalism, that is expressed in Anglo-American jurisprudence with the social as a basic and certain fact of human life. Brown's "The Concept of the Social in Uniting the Humanities and Social Sciences" (2014) presents a substantive case for the concept of the 'social' as a basic and certain fact of human life as something other than the idea of 'society'. The human sciences, including philosophy, jurisprudence, sociology and 'law and society', need to move beyond the idea of the 'social' as a 'context' or 'entity'. Law and society needs to provide hope in dealing with the structure–agency debate by overcoming the problem of dependence and autonomy. Until such a concept is accepted, the substantive problems of 'law and society' will continue. The paper concludes with offering the implications for a sociological conception of freedom and a corresponding concept of causation for the human sciences that is necessary for expansive social change.

Comments

This is a delivered presentation. More formal expositions of the ideas present are forthcoming.

Citation information: Raphael, Michael W. 2016. “The Prospects for Change: The Question of Justice in a Law & Society Framework.” Presented at the Annual Meeting of the Law and Society Association, New Orleans, LA.