Legal Studies 250 Finals Study Guide - Major Contributions by Thinkers-Emily Durkheim Durkheims social theory of law as a representation of our

Legal Studies 250 Finals Study Guide - Major Contributions...

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Major Contributions by Thinkers: -Emily Durkheim- Durkheims’ social theory of law as a representation of our societies collective conscience and as shifting from repressive(oppressive, punishing) law in simple societies to restitutive(creating, restorative) law in complex societies was found to be quite wrong.There is no such shift, there are both repressive and restitutive laws found in complex and simple societies, and law is less an indicator of moral consensus and more of an object of contestation. However, Durkheim did call our attention to the importance of moral orders- people are drawn together by more than simply their intersecting interests and “the sacred” which inspires a sense of awe and an aura of mystery when making law an indicator of our moral order. Durkheim also contributed a theory of crime and punishment, in which punishment is a mechanism for showing the collective conscience exists and maintaining solidarity. He further posits that crime is normal, societies cannot function without it and that punishment is expressive and ritualistic and can only fulfill its function when observed by members of a society. -Robert Cover- Cover asked the question “What is the relationship between legal interpretation and legal enforcement” and found that the interpretation of law always has violent consequences. He believes that we have separated understanding what ought to be done and carrying out what “ought to be done” through violence. He believes that we’ve been using our interpretations of law to give organized existence to violent behavior and that the law can never escape violence. -Gerald Rosenberg- a subscriber to the constrained views on the Supreme Courts ability to produce social change, Rosenberg believed that the courts were neither necessary nor sufficient in the process of implementing social change. -Patricia Ewick&Susan Silbey- identified the three legal schema and
the oppressive as well as liberating manifestations of them. Define: -collective conscience- social morality is encoded in a society’s collective conscience, it is sacred and not observable and expressed in law, which can be observed and measured. -social solidarity-the integration, and degree and type of integration, shown by a society or group with people and their neighbors. it refers to the ties in society that bind people to one another. According to Durkheim, the types of social solidarity correlates with types of society, and crime maintains social solidarity. -mechanical solidarity- all rules are sacred, and violations are seen as violations of collective conscious. results in repressive law, occurs in simple societies with low division of labor and little human diversity. -organic solidarity-fewer rules are sacred; more legal conflicts are private and intrapersonal. results in restitutive law. occurs in complex societies, with high division of labor and significant human diversity.

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