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.
