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CLJ 200; Week Three Notes

by: Katie

CLJ 200; Week Three Notes CLJ 200

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These are notes covering the third week of class.
Law And Society
Professor Greg Matoesian
Class Notes
criminology, Law, Justice, Society




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This 9 page Class Notes was uploaded by Katie on Wednesday January 27, 2016. The Class Notes belongs to CLJ 200 at University of Illinois at Chicago taught by Professor Greg Matoesian in Spring 2016. Since its upload, it has received 55 views. For similar materials see Law And Society in Criminology and Criminal Justice at University of Illinois at Chicago.

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Date Created: 01/27/16
CLJ 200 Week Three Notes For the test know: Repressive law and social solidarity Team work, saving (Test Question) Law is the most objective and Crime is not an abnormality Marx Theory An instrument that invests and protect the upper class A Marxist would consider the law According to Marx (pg52) law is part of the super structure Anything Useful in D’s Theory? Yes. But you won’t read about it in a textbook. Society held together by feelings of right and wrong: emotional sentiments that impel people toward certain actions and into righteous revulsion against others. Sacred objects: religion (remember the G’s video?); (profane=everyday life; making a living etc; sacred=special moments of collective effervescence Ritual conduct governs how people should act in the presence of the sacred or sacred objects. Get the passions fired up. Mechanism by which moral sentiments are shaped into social forms. We celebrate the past; share its relevance for the present and optimism of future. Now you got it? Yes the law is a sacred object. Lawyers are the new priests in society. 1. Group assembled 2. who focus attention on some object/action, each aware that other is maintaining that focus 3. who share a common mood or emotion Trial/legal examples: OJ, R. King, Casey Anthony, Gov. Blago, Scopes Monkey Trial, swear in using Bible: Swear to tell truth, whole truth and nothing but truth. Trials are communal rituals: Gruber, Emerson, Mertz, openings, closings, black robe, elevated bench, solemnity, all rise, no talking or eating, get in line, examination, cross-examination, verdict, repetitive or over and over, step down, instructions. 9/11, trauma of losing a president, Kennedy Children. Goffman: frontstage/backstage; IM Durkheim -What mechanism can offset the fragmenting tendencies of industrial society? -Old gods are either dead or dying. -We need some form of secular morality as the source of social cohesion and this is why law is so important -Passions must be restrained or war of all against all -What regulates society now in modern industrial society? -What substitutes for religion? Answer? Law. -Gives authoritative voice to morality -In fact, one could say that law is the institution through which society worships itself -Modern Law helps maintain authority when religion declines. -Way morality expressed as impersonal rules in a form that unites citizens Durkheim on Law and Society -Legal System: highly specialized and indispensible “organ” of adaptation in modern societies (think what would happen if we didn’t have it) Test Q -Law is a moral system; in fact, society for D as we saw in the Giddens’ video is a moral system. Even something like contract law depends on some transcendent authority to ensure it will be enforced: trust (morality). Econ not the basis for society (Example) -If D were alive today, for example, he would attribute the success of civil rights legislation to the moral force that comes from the belief that it is wrong to favor one race against another etc. Social Facts are: Exterior, constraining and Collective. Test Question: All of the Above! Law is the most obvious and objective fact: Test Question -Law is the most obvious example of a social fact Test Q (it’s constraining, real, exterior or external since it has a sense of being “out there”) -Thus law is central to D’s theory: law best objective indicator of collective morality Test Q -Law functions to constrain individual behavior and produce social order -For D Law is a thermometer or operationalization of collective morality (that’s why he’s interested in it) -It’s written down, passed on through law school socialization, embodied in legal customs, buildings, prisons etc - Just as animals in nature evolve characteristically different physical forms to adapt to environment (watch the animal network and see certain animals change color to blend in with the environment to avoid predators etc), societies evolve different forms to move through different stages of development Two Types Of Society Correspond To Two Types Of Legal Order -Mechanical Solidarity. Low Division of labor, no individual, collective conscious, based on likeness (Feudal, primitive etc societies). Test Q. -Characterized by repressive law Test Q; punishment, criminal law dominant. Crime is an assault on universally shared values (usually religious). Crime is an offense against this transcendent authority. Shocks the collective conscious. No difference between law and religion here. Mechanical linked to repressive -But since law is an adaptive mechanism it changes in predictable ways to deal with the increasing complexity of society like breaches of contract, civil rights, securities fraud etc (repressive law in mechanical solidarity can’t deal with these). Capitalism must have laws dealing with capital Capitalism and modern social theory -Organic Solidarity form of cohesion based on difference. Complex society, high Division of Labor, Emergence of Individual. Not homogenous like Mechanical Solidarity but heterogeneous system with different organs, each of which has a special role. Highly differentiated legal domains: civil, criminal, probate, family court, etc Test Q -Organic Solidarity sees emergence of restitutive law Test Q: restore broken relationships, sets of rights, contract, civil law. Law becomes detached from other institutions, esp religion. -Once again, law is an operationalization because it is the most visible symbol of social solidarity; provides the clearest statement of social norms. -Sum: DOL simple to complex; Mechanical to organic solidarity; punitive to restitutive; undifferentiated to differentiated legal institution. Durkheim On Crime -Although restitutive law predominates in complex societies repressive law doesn’t disappear. Why is that? -Crime is necessary or normal for societal integration. Test Q It persists. -Crime is normal or positively functional for society, at least for any healthy society (probably why you don’t see much crime in Nazi Germany or the Soviet Union etc). -Provides an occasion for the arousal and reaffirmation of the collective conscious: 9/11 -Boundary maintenance: Rudy, Erickson -Employment: Police, criminals etc -Social Change: Rosa Parks Crime is normal and functional, it is not abnormal. Test Question -As you might have guessed, crime and its ritual persecution/punishment have a religious aura about them. -Punishment is not useful in deterring crime or rehabilitation; it’s an act of vengeance. What we avenge is the outrage to morality -So can’t suppress crime (since it’s normal) -No way to get rid of it (it will just change its form: pot becomes legal while tobacco illegal etc. -This will occur because as the most harmful forms of misbehavior decline, collective conscience will come to treat more minor acts more harshly. What were once moral offenses would be reclassified as criminal: drug use, DUI -In fact, when crime rates decline below normal levels, according to D, it’s a sign of social disturbance. -So even a society of saints would soon have its sinners. It doesn’t matter what’s a crime; arbitrary Problems With Durkheim’s Theory -D shows how law adapts to changing soc conditions: forms of solidarity correlate with legal system variation. But -He oversimplifies primitive societies or mechanical solidarity. Malinowski found that the Trobriand Islanders engaged in structural restitution; secular not religious. Restitutive sanctions exist in a broad range of societies (some researchers even suggest the opposite; think about the massive imprisonment rate in the U.S!) Crime is not the dominant form of law in mechanical solidarity! We seem to be increasing the use of criminal sanctions (think about victimless crimes etc). -Is law a good indicator of social solidarity or collective morality? Durkheim assumes a moral consensus (check over consensus theory in chapter 1). But there is great disagreement over all sorts of issues in our society: affirmative action, abortion, pot, protection of the environment, bailing out banks etc -More fruitful to see law as an arena for conflict (see conflict theory in chapter 1). -D has no role for conflict in society; no role for the state; no role for power; no role to give legal actors in development of law to further their own interests etc. Anything Useful In Durkheim’s Theory? -Go back to the video and the discussion on D and religion, more specifically the Sacred v Profane. Seen in this light, the law is a sacred institution with a sense of awe, majesty, power – some mysterious and deserving of respect. -Think about the Constitution, buildings of govn, halls of the Supreme Court, myths, rituals, ceremonies etc. Robert Emerson Saving Test Q -Or just think about traffic court. No smoking, talking, chewing gum, cell phones, etc -Display of respect for the sacred. Rise when the judge comes in, dressed in black, gives a serious speech about pleading and the legislature, calls your name, queuing up, etc -Or think about the current presidential elections on the news -Law plays an important expressive role in society and crime/punishment/law represent symbolic mechanisms for galvanizing public sentiments -If you’re interested in this check out Durkheim’s Elementary Forms of Religious Life 1912 -We’ll see later how this aspect of law relates to Erving Goffman’s idea of interaction ritual Marx and Law Critical. Do not take for granted or limit themselves to state definitions of crime. Crime is viewed as a social harm or violation of human rights. Test Question They do not accept conventional analyses of causation that blame the individual offender without also considering how offenders have themselves been victimized by society and by the selective CJ system. Test question on Castro. (very well educated) -Critical because they oppose the existing social order based on power and inequality, facilitated through the capitalist organization of society. -They question the current CJ system which is seen as little more than a reflection of the dominant power structure. The current CJ system is not designed to get rid of crime but to foster the impression that crime is street crime, which needs to be controlled. -Not reformists but seek to overthrow the entire system. -LAW and MARXISM: Law is an instrument that protects and advances the interests of the upper classes. Law is a form of domination, exploitation and oppression Test Question Marxist are radical Law is a form of exploitation, and a form of oppression. (Test question) Matt Taibbi -Law is socially constructed product of powerful interests, controlling the social meaning of society’s institutions and dominant values. -Law is inherently conservative force pressed into the needs of capitalism, though it hides beneath the veneer of applying to all. Health care example on TV and red tape. -What counts as a crime depends on capitalism (eg immigration and other matters deal with regulatory agencies such as illegal immigration, EPA, tainted food rather than the CJ system which is for poor folks and street crime). Acts that are in keeping with powerful economic interests are either ignored or given lesser punishments. -While convention crim folks see the criminal primarily as the economically marginal person, critical Marxists see little difference between criminals and noncriminals. No difference between drug dealer on the street and the giant pharmecuetical companies, tobacco and booze merchants selling dangerous substances even though legal. That’s why for Marxists corporations are guilty of crime when they pursue normal business practices of laying off people to make a larger profit. -In essence capitalism as an economic system in inherently criminogenic. It is a direct determinant of crime since its system of production encourages destructive conflict through competition for wealth and power. -Law relies on ideas that reflect the interests of the ruling elites and support the interests of the powerful: ideologies or hegemony (eg Private Property) -Marx talks about base and superstructures of society. Law is part of the Superstructure. Test Question! -Conflict theory: major critique of Marxism: essentialism/determinism. Test Question -Gender: much more deeply engraved and enduring that class conflict. Views law as a product of males and therefore has a patriarchal character. Ideas, objectivity and neutrality celebrated in law are actually masculine values celebrated as universal values (MacKinnon). -Gender isn’t a natural fact but a social, historical and cultural product. -Gender relations order social life and the law -Gender relations not equal but organized around male domination -Knowledge reflects male views of the natural and social world. Product of legal knowledge are gendered -MacKinnon: control of women’s sexuality is central to male domination. Power maintained through sexual violence. Focus on violence against women and the role of law that permits it. (eg rape is an experienced harm for the women but the standard for its criminality belongs to male ideology, that is, the law). Test Question -Structural vs Instrumental Marxism -Example: Health care debate -Wall St. Meltdown. Antonio Gramsci: contributions to Marxist thought Two different types of political control. 1. Power or coercion 2. Hegemony or consent -No type of state could sustain or reproduce itself on power #1 alone, at least not for long. It requires legitimacy of some sort, especially during a period of crisis like we confront today. What he means by #2 is civil society like unions, family, school, church, mass media, entertainment etc and values/beliefs/morals that support the system in power. -Hegemony socializes us into every area of life and becomes taken-for-granted or just common sense or a worldview. Elites and those in power seek to make their own interests appear as the natural order of things or “naturalize” culture, morality and existing arrangements. It functions for the masses and becomes justified by intellectuals who produce “theories” or “facts” about how existing arrangements are natural, logical and scientifically sound. TARP is good for society as a whole; it’s good for all of us. -Hegemony works better than tanks or guns because it mystifies power relations and public issues (how many of you understood the complexity of the Tiabbi interview?). It makes us fatalistic and passive toward political change and it justifies all the “sacrifices” and hardships that we’re suppose to endure. That’s how we consent to our own exploitation, oppression, misery. The problems of insecurity can be solved if you only look harder for a job or “tough” it out or go back to school or get lucky or work harder. But the problem certainly isn’t systemic. We just need the President to pump a few buck into the economy and we’ll all get jobs and everything will be great. -Gramsci: Prison Notebooks. In orthodox interpretations of the base-superstructure model the law is an instrument of domination and oppression wielded by the dominant capitalist class. Gramsci claims that coercion is only half the equation; the law is also a vehicle for organizing consent, having citizens consent to their subordination. -Law is more than coercion of the dominant class (too simple). Serious and complex issue is: how can we explain consent? Capitalism doesn’t just force us into submission but convinces us folks (read: simpletons) that capitalist institutions like law, economy, politics etc work in their best interests or that no viable alternative is feasible. This is what he means by hegemony. For Gramsci, how can we account for the reproduction of these ideologies? Think about political elections! The law is part of the process through which ideologies are embodied in words and ideas and then interpreted.


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