Abstract
This paper examines the social theories of law that were proposed by two of the greatest social theorists, Emile Durkheim and Max Weber. The paper seeks to examine what each of the two theorists wants to bring on board in their theories with regard to law in the society.
The study will then go on to explore the role these theories have played in the society and lastly at the similarities and differences that can be identified in each set of ideas that were proposed by the two philosophers.
Introduction
The understanding of law in the society is crucial. Therefore, the theories proposed by Emile Durkheim and Max Weber are very important in providing the different perspectives that are illustrated in attempt to come up with the meaning of law and the factors that dictate the leading role that determines the types of laws that are applied in reigning over a given society.
The two classical sociologists have contributed immensely in the theoretical study of law. In their work, they have given their views on the role of law as a consequential result arising from the drastically changing society. Durkheim aimed at demystifying the role of law in a randomly changing society due to forces of industrialization.
He also aimed at establishing the role of law in a society that is marked by a culture of individualism as manifested by its members. On the other hand, Weber was of the opinion that modern law is formal and it is formulated based on rational procedures to ensure effective running of the society and the activities there-in.
This paper will define each of the two theories and explain exhaustively what each of the theory has encompassed. The study will identify the fundamental differences and similarities that are disported by the two theories. Ultimately, the paper will draw a conclusion concerning the roles that have been played by the two theorists in shaping the modern law.
Social theory of law according to Max Weber
Max Weber was a German sociologist and political economist (Cotterrell, 2001, p. 255). According to Andersen and Kaspersen (2001), Weber’s approach to law is from an external point of view (p.195). He concentrated on the characteristics that are exhibited in law. He understood law as an abstract that is not attributable to any person. He sort to define law as a rational and legal authority.
Weber postulates that authority that is bestowed by law takes three forms; the traditional authority, the charismatic authority and the legal-rational authority. These three forms of authority have sort to explain how a legitimate system that is supposed to govern people by outlining how they interact with the formal authority and with one another can be created (Luhmann, 2005, p.388).
In the traditional basis of authority, Weber sort to explain that authority is legitimate via the sanctity of the traditions of a given society. He observed that the ability to rule others and the legitimacy of ruling others is passed down from one person to another. In a traditional monarchy authority to rule is hereditary in nature such that a son inherits the throne of his father and the continued inheritance becomes a cycle.
The same dynasty keeps the legitimacy of ruling others and this process could continue forever. He observes that in such kind of societies, the rules that are implemented in almost all the cases are inconsistent and irrational over a period of time. They are prone to biases, nepotism and prejudice.
The subjects of such form of authority in most cases are either absolutely dependent on the ruler, or they are independent from the ruler, but still subjects of the ruler. The two types of subjects are either feudalism or patrimonialism. It should be noted that in the traditional legitimacy of authority, the nature of authority is static (Andersen & Kaspersen, 2001, p.195).
The charismatic type of authority that is practiced in the society is embedded on a founding leader whose charisma inspires others. These type of leaders have a vision and a mission that they plan to accomplish.
The charismatic leader is seen as the head of a society that has been reborn and it is seeking to achieve greater things under their leader. Charismatic authority according to Weber is not static, but it was expected that the leadership would rationalize and evolve if need be (Cotterrell, 2001, p.215).
The legal-rational authority a society is founded on a formal belief of legal subjectivity of all members of the society. Weber observed that leadership is not bestowed in a single individual as it has been in the other forms of legitimacy. The legitimacy of this authority is based on particular principles that have already been set. The legal and rational systems exhibit bureaucracies in the political and the economic sectors of the society.
This form of authority is common in the modern states. It is inherent that the development of the modern states is characterized by well-defined bureaucracies that are paralleled with the incorporation of capitalism in the society.
The rationalization of the laws that will be applied in the society is done based on equality and fairness to all the stakeholders in the society. It is in this opinion that Weber identifies that law is codified in a manner that it is impersonal to anyone in its application (Cotterrell, 2001, p.207).
Social theory of law according to Emile Durkheim
Emile Durkheim was born from a Jewish family and his father was a rabbi. He rebelled against his faith and become a follower of secular view of religion. The work of Emile Durkheim is relatively encompassed in the themes of collectivism versus individualism. It is in this work that he has projected the dominance of collectivism over individualism (Luhmann, 2005, p.275).
In his writing, it is evident that Emile Durkheim identified that the society is in a transformative state over time. Due to these transformations, the society becomes more complex. Consequently, this results to changes in the type of laws that govern a given society. According to Cotterrell (2001), Emile Durkheim observed that laws of a given society are the most unifying factors of such societies (p. 215).
For instance, the law of a given country in its constitution is meant to unify the citizens of that country in the best way possible. The laws are concise as they explain what should be done in case something happens. He observed that all the vital essentials that are paramount in ensuring that the society runs effectively depend directly or indirectly on the set law.
Collectivism of the society is articulated on either repressive laws or restitutive laws. These laws are meant to maintain solidarity in the society. The main role of the repressive laws is to ensure that criminals are punished in order to deter members of the society from engaging in crime while restitutive laws are meant to restore the relationship that existed between the two antagonizing parties (Camic, Joas and Levine, 2004, p.83).
Durkheim explains how the modern society is conceived by the division of labor in the society. Emile Durkheim observed that as the society continues to modernize; its members continuously seek to specialize in specific sectors of the economy. This specialization has increased the dependency rates of the members of a specific society.
This is in contrast to a society with little specialization as all people are engaged in similar economic activities. This makes all the members of that particular society similar. This uniformity brings about mechanical solidarity among its members. According to Stone, (2006, p. 114), a strong mechanical solidarity propagates a strong collective conscience that is possessed by all the members of a particular society.
The laws that are practiced in such a society are motivated not by the urge to punish, but by the collective conditions of life that are meant to govern the ways that people of a particular society are supposed to follow.
These common conditions are the totality of the beliefs that are held by every member in that particular society and they play a leading role in determining whether an act is a crime or not. The set conditions reckon that an act that hurts the collective conscience of the society amounts to a crime and is punishable accordingly.
On the other hand specialization of the members of the society brings about organic solidarity that is governed by restitutive laws. This organic solidarity in the society is expected to highlight the differences exhibited by the society members.
These differences henceforth weaken the collective conscience that bonds the society members. Therefore, it is evident from the work of Durkheim that laws are meant to guide how the members of a particular society interact (Law, 2011, p. 107). Emile Durkheim stipulates that laws act as focal point of society integration.
Differences in the Two Accounts
The two theorists have highlighted that the society and law are integral. They are a constitutive part of the human life and therefore they should be studied with un-subdued commitment. However, it should be noted that in the process of explaining the theories as narrated by the two theorists, a number of differences have come out. First, it should be noted that Max Weber identified the types of authority that exist in the society.
Besides this identification, Max goes on to explain the legitimacy that each type of authority possesses. On the other hand, Emile Durkheim in his view of law in the society seeks to explain ways law integrates the society. He compares individualism with collectivism.
He holds that law is supposed consolidate the society in which a society that has less division of labor is supposed to be held together more by a collective conscience as compared with a highly specialized society. In the process of making these identifications, Durkheim came up with the concept of mechanical solidarity and organic solidarity (Schaefer, 2007, p.317).
The Similarities in the Two Accounts
Despite the differences that have been identified to exist between the two theories, it would be an injustice to decry that there are some similarities that have been noted in the process of explaining them. As far as the subject matter is concerned the two classical thinkers have a similar subject matter. They advocate for the rule of law in the society.
Max Weber in his opinion seeks to explain that laws in the society are legitimate on the basis of three paramount grounds. First is that laws were traditionally implementable, secondly, they arise as a result of charismatic leadership and lastly from legal-rational leadership.
On the other hand, Emile Durkheim seeks to explain how laws work in the society. In their views, they sort to bring out that law is a means of integrating the society. For instance, Weber is of the opinion law is supposed to unite and govern the society (Cotterrell, 2001, p. 255).
Conclusion
In conclusion, it is evident that the role played by Weber and Durkheim in giving the modern law its foundation is immense. The two great sociologists have observed the law as the source of societal unity.
It should be noted that the theories of law have benefited the society in many ways among them its ability to discern the legitimacy of the governing authority of a particular country and how the societal laws that are in place at the modernized society tell of the solidarity in the state in terms of mechanical or organic solidarity.
Therefore, it is prudent to conclude that these classical theories have played a notable role in the elucidation of the theoretical law from a sociological point of view.
References List
Andersen, H. and Kaspersen, L., B. 2001. Classical and modern social theory. New York: Wiley-Blackwell.
Calhoun, C. and Gerteis, J. 2007. Classical Sociological Theory: New York: Wiley- Blackwell.
Camic, C., Joas, H. and Levine, D., N. 2004. The dialogical turn: new roles for sociology in the post disciplinary age. New York: Rowman & Littlefield.
Cotterrell, R., B., M. 2001. Émile Durkheim: law in a moral domain: Jurists–profiles in legal theory. Upper Saddle River: Cengage.
Law, A. 2011. Key Concepts in Classical Social Theory. New York: Sage.
Luhmann, N. 2005. A sociological theory of law. New York: Taylor & Francis.
Schaefer, R., T. 2007. Sociology. McGraw-Hill.
Stone, J.2006. Law and the Social Sciences: The Second Half Century. New York: Rowman & Littlefield