The Sociology of Law

According to Anthony Giddens, society is an “institutionalized mode of conduct…”. It is a social system which organizes human beings as there is yet to be a better way to deal with the population (I suppose). The notion of society as being a social construct, however, is still debatable. At the opposing end, there exists a sociological camp which studies the science of society as an existence beyond subjective knowledge. That scientific methodologies prevail in validity became its evidence of objective knowledge. But even objective knowledge to its core is to a large extent presumed, thereby being tautological. The fact that individual experiences and phenomena in society are socially constructed forms the basis of the micro-level, phenomenological canon. The law therefore could not be rightly placed in between perspectives but rather, if one fails to see it in relation to either school of thought, the law appears to be drifting in a state of anomaly. This then seems to propose the notion that the law is a self-existent, uncaused entity that operates on the basis of its own workings. This is rather ridiculous to me like an octopus lashing out its tentacle!

Does the law complement society or is it a largely constructed concept? The former would intend to postulate that the law is part of an institutionalized limb; serving an intended function which are interdependent with other structures of society, inclining towards organic solidarity from a functionalist view. Durkheim advocates that society is greater than the sum of all individuals in that social relationships exist. This seems to suggest to me that the law could very well be a byproduct of society rather than a functional institution on its own. However, this would be impossible since Durkheim is a positivist. Could it be then, that the legal institution is a somewhat latent consequence of increasing structural complexity which took on its own form of functional autonomy? After all, there is hardly any formal legal system as opposed to minor traces of social rules during the ice age. Therefore, something that is successive might not necessarily be a social construct; it could merely be an evolution at a structural level.

On the other hand, is there relevance in resting on the idea that the law is nothing more than a valid conceptual definition imposed by any other person? Since we construct our everyday experiences owing to the doctrine of free will, it isn’t less valid to argue that the legal institution is not an impact of the external forces just because it is the collective consensus of a large population, is it? The law is merely an evolutionary concept of civilization which legitimizes social conventions.

I would be more incline to believe that the law is a social construct because it is a concrete expression of social rules, rules by which its origins lie in human interactions in the first place. It is a legal paradigm created to restrict and quantify human behaviours by seeking to cover every permutation of behaviours in society. The law tries to achieve certainty in behavioural patterns in order to classify appropriate social sanctions. But it is at this point where criticisms seem to be leveled at it. As Mead would suggest, human beings are not “cultural dopes” acting upon unseen social structures. They are conscious, active beings who do not passively submit to any form of determinism. Hence, it would almost be impossible for the law to predict human behaviours and intentions (because it is too mechanical and dehumanizing to do so) by which case the application of law seems to occasionally lead to absurdities.

Being an imperfect mechanism in itself, the law however, rightly justifies its existence. As legal realists would advocate, the law is man-made and therefore subjects itself to human imperfections. Thomas Hobbes would seem to justify its existence because it is the only legitimized way of bringing about social order. The law gives society a reason to abstain from anarchy in addition to the rational consequence of the demise of all self-interested human beings would lead to. Of course, a consensual creation of the law would seem to be far from reality for the Marxists. The law is just yet another ideological state apparatus to assert control over society. It would be hilarious if embourgeoisement became rife to a point where there would almost be no one to assert control over, save law creators themselves.

I was just pondering at the thought of social order being preserved and guided by a different “institution”: morality. Could morality itself be self-regulatory to the effect that the legal institution is redundant? After all, the law is often criticized for its lack of recognition for social conscience.

I once read a philosophical question on law and morality. It goes by the sound of “can there be immoral laws or illegal morality?” The answer was given to the affirmative. If so, then it follows that the law wasn’t created on the basis of morality. It may just be customary since social rules are cross-culturally diverse. This leads back to the argument that social norms are relative. Hence, a syllogistic illustration would prove that the law is not necessarily, objectively “right”:

Social rules are relative.
The law is based on social rules.
Therefore, the law is relative.

Stupid discovery, really.

At the end of the day, the law is a form of hegemonial social control that only a certain class dominates. As Marxist as this may sound, i think this stance proves to be the closest to the reality of law.

A year ago, i was introduced to a 'socially-perplexing' subject called "Sociology" and i have definitely been 'socially-influenced' into an eternal and cyclic world of sociological thinkers. I do not know whether i have completed the 'socially-internalizing' phase but I am now in another territory. One that would empirically challenge my socially-interpretative ways.