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CLJ 200; Week Four Notes

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CLJ 200; Week Four Notes CLJ 200

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These notes cover the forth week of class.
Law And Society
Professor Greg Matoesian
Class Notes
criminology, Law, Justice, Society
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This 17 page Class Notes was uploaded by Katie on Sunday February 7, 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 18 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: 02/07/16
Greg Matoseian CLJ 200 Law & Society Week Four Marxist Musings -One of the principles that emerged in the 80s was that state power should protect financial institutions at all costs. Privatize profits and socialize risks. -One barrier to capital accumulation or the labor question (moving jobs overseas, cutting costs etc) is overcome but at the expense of creating another or lack of a market. Solution? Credit. -Loosen the strings on everyone and cultivate new markets around the globe. -Wage repression good? Allows the rich to get much richer. They don’t invest in new activity or production. Invest in asset values like stocks etc. -Pit workers against one another; keeps capitalists safe (immigrants, women, minorities. “OH MY GOODNESS WE GOT TO GET TOUGH ON IMMIGRATION ETC” nonsense!) -But where can they invest? Unregulated derivatives and hedge fund markets. To hell with public interest. -That’s capitalism and how the crisis has systemic origins but you’ll never hear that outside of the classrooms. -Bailout has shown how the state and capital are more closely intertwined than ever. Structural v instrumental view of law. -We Americans have to roll up our sleeves, tighten our belts and save the system from ruin because personal responsibility is for workers not for capitalists right? -Funny thing? We get outraged by sexism, racism, ethnic and religious intolerance and so on but why don’t we feel the same way about the most pernicious form of inequality? That is, class inequality? Greg Matoseian -Marx (Communist Manifesto page 2 or 3?) “Modern bourgeois society with its relations of production, of exchange and of property, a society that has conjured up such gigantic means of production and of exchange, is like the sorcerer's apprentice, who is no longer able to control the powers of the nether world whom he has called up by his spells.” -President doesn’t control capitalism; capitalism controls him or her and everyone else. Max Weber on Law and Society -Why does he focus on law? Central to Cap economy. Have to have rational law and a legitimate and highly trained staff of legal specialists. -He wants to know to what extent does law influence material life, that is, how does it encourage or discourage certain types of economic activity? -He wants to know to what extent do economic factors shape legal thinking and how it’s been responsible for modification of specific legal institutions Weber: A legitimate and highly specialized and trained staff. Test Question -Basic Issue: what is the relationship between law and economic activity (go back and contrast with Marx, who felt it was a mere reflex of material interests and a superstructural component; that is, Marxian theory is explicitly concerned with law as a response to economic conflict; Weber thinks this is much too simplistic and inaccurate). Multidimensional thinker! Law and capitalism exert a reciprocal influence on one another (gestalt) [elctive ifinities]. -What is the connection between one particular set of legal institution, what he calls formal or legal rationality (or what I’ve called formal legal jurisprudence) and one specific form of economic organization: modern capitalism (the most fateful force in modern life, which is actually a question from Weber) Legal systems have import elective infinities. Test Question -What is the relationship between formal law and the rise of capitalism? Greg Matoseian -Think about it: if you’re going to have a growing market economy you need contracts etc and those must be predictable, enforceable, etc -But this isn’t the same as saying that capitalism causes formal rational law; -Weber claims that formal rational law and modern capitalism possess “elective affinities” Test Question! That is, they mutually influence one another in complex ways (notice the difference compared to Marx?) -Formal rational administration of law is one of the major conditions for achievement of greatest degree of calculability in any economic activity, esp those devoted to profit making. Formal rationality as in contracts increases freedom because it allows one to make calculations, predict economic activity, produce uniformity ala McDonalds Hamburgers. -Even though law and economy mutually influence one another the degree to which this is so is historically variable (or an empirical matter that must be studied scientifically). That is to say, the economic can stimulate or retard law and vice versa (where rational law absent economic growth will be slow or absent etc). For example, capitalism contributed to development of law in the sense that private contract law constitutes a function of modern capitalism. But the law also influences economic activity, for instance a formal rational adjudication system aids economic market development Calculation would classify as a central theme/theory of Weber -Only in the West do we find rational capitalist business with fixed capital, free labor, rational specialization etc bound up in market economy. Why is this unique? Why did this only happen in the West? Where did it come from? What is the role of legal ideas in this? He claims that the legal and economic exert a reciprocal influence on one another or what he states: “Capitalism and formal legal systems have important elective affinities”. What is the relationship between rational systematization of law and modern capitalism? What do law and cap have in common? -Indian Law - Obstacle to rational capitalism. Controlled by Hindu Priest. No specially trained jurists (recall his definition of law as a specialized staff? Now you know what he’s talking about). Formal law not well developed. Too much religion and too many irrational elements in law. Here’s an example from his Greg Matoseian Economy and Society (you may wish to read this). He talks about a creditor who had difficulty getting paid would go to the debtor’s house and either hang himself or sit at the house and starve himself to death. Creditor hoped to force his clan to intervene on his behalf and thereby increase pressure on the debtor. TEST Question!!!! -You can see that in India, according to W, this and other beliefs the Indian religion has too much magic and irrational elements (don’t forget the religious duty to uphold the caste system) like withdrawal from the world and follow strict religious rituals etc. -Chinese Law - Also an obstacle to rational capitalism. No independent jurists. Tended to avoid written legislation; Too much magic (for instance here’s an example from Weber. If someone sold a house to another but became poor they could show up many years later and demand to live in the house. The person would be accepted as a nonpaying boarder out of fear that ancestral spirits would be disturbed). (Mining or railways or factory smoke and other innovations would be a threat to the spirits). So you won’t see much capitalist development or legal development under such a system. For Weber Confucianism was an obstacle to rational capitalism. -Same problems with Islamic Law and Judaism (like lending for a profit to Gentiles or Muslims but not other Jews). -So for W these sacred legal systems don’t do much for development of rational capitalism (in fact, they retard its growth) by rejecting change, prohibiting certain economic activities (like usury) and generally making economic activity unpredictable (the other component of rationality). Rationality=calculation, uniformity, prediction & McDonald’s Hamburgers. -W’s theory of state: related to soc of law. Why? Domination in modern society legitimated by legality. Politics and law are further related because the legality of rational domination finds its purest expression in the bureaucracy which is in turn governed by formal procedures and law. Types of legal thought Greg Matoseian -Rationality: means-ends; control; logical; universal (law of theft doesn’t care what was stolen); reduction of concrete cases to one or more legal principles -Rationality is the hallmark of Western Civilization; absent elsewhere Indian Law, go to the house and starve yourself Chinese Law Four types of legal thought; Rational Thought: Test questions! Four Types Are; 1. Formal legal rationality; legal thought derived from legal sources; written documents; criteria internal to legal system; high degree of predictability; Unique product of Occident. -Example of this deductive logic: a. Felon in possession violation of law; b. LeRoy Reed is a felon and in possession of a firearm; c. therefore L. Reed is guilty. Prosecuting attorney’s opening statement/closing statement. -Law involves consistent logical rules independent of moral, religious or other normative criteria: formal rationality 2. Formal Irrational Legal Thought. Uses fixed rules like magic, oracles, revelation or ordeal. No means- end relationship; beyond intellect. -Example: Exodus 28: specific Holy Garment, stone in pocket; If priest picks stone x=yes; stone y=no. -Evans-Prichard: Chicken Poison Oracle -But although this is based on supernational forces it still involves strict adherence to formal procedures. 3. Substantive Irrational Thought. Ad hoc (e.g. “now’s my turn to get back at those sons-of-bitches”) 4. Substantive Rational Thought: guided by rules that derive from nonlegal sources like religion, ethics or politics not law (not internal to law like formal rational thought); objective is to bring about social changes in line with certain ethical considerations (e.g. affirmative action, etc) Greg Matoseian “You wouldn’t take a seven year old and ask them all these questions” or “that sheriff’s deputy had no business telling him to go home and get that gun” -Sum: Only the West produced a formal rational system of law and only in the West do we find a rational capitalistic economy Calculation (prediction) in administration of law is feature of modern capitalism 6 Test Questions on Rationality! -Weber poses significant questions: -Is legal organization fused with rules or tradition? -Are legal decisions determined by general rules or on an ad hoc basis -Failure of other civilizations to develop rational law explains why only in Europe could modern capitalism arise Protestant Ethic and Spirit of Capitalism -Since rationality is so crucial we must address where come from and how did it emerge to situate us where we are now? Protestant Ethic and Spirit of Capitalism instrumental for the development of Western Civilization. -Main Components of PESC: strict asceticism with regard to consumption of material goods, diligence in worldly calling, systematic use of time. Ben Franklin and John Calvin are major figures for Weber’s analysis. Free copy to read on line. (you’re going to enjoy this one!) -Verstehen or “understanding”: represnets a major method of inquiry for Weber Protestant Ethic Lecture Max Weber and Law What accounts for the development of the West? Greg Matoseian What’s the role of ideas? How do ideas transform societies? How did capitalism and rational law develop? Protestantism and capitalism related? (Ideal types and verstehen) What accounts for the rise of the Occident compared to the Orient etc? But keep in mind that while Marx talks a lot about capitalism he never says where it comes from -Weber is challenging Marx’s materialism/class economics He emerges from a nervous breakdown with some strange ideas (lasting 5 years or so)! He has some prima facie noticings. Protestants more successful than Catholics (P and C). Why is that? Do they like money more? Do they like to acquire stuff more? No Ruthless acquisitive activity has been here since the beginning of time. What accounts for the rise of Modern Western Civilization (Occident)? What is the direction of its development? (a steel hard casing dominated by impersonal and instrumental relationships). Influx of precious metals? Tech advances? Desire for riches? Economic supermen? Insufficient to explain origin of capitalism (modern cap that is). PESC: uniqueness of West and its development W distinguishes capitalism and rational modern capitalism Former existed universally (in the form of speculators and adventure capitalists) The latter arose only in the West Economic supermen/precious metals etc have existed throughout the ages None of this would offer an explanation that separates capitalism from modern capitalism That’s Weber’s main task What is the ethos or spirit or PE? Greg Matoseian Rational capitalism: legally free labor, relatively free market, market exchange, rational organization of industrial companies, double entry bookkeeping and stable calculable law. Oriented systematically to profit and industrial organization to free labor China/India: absence of formally guaranteed law, no rational administration and judiciary. India: caste system; no free labor. China: free trade, precious metals, money exchange etc were all favorable or conducive to capitalism But this was outweighed by negative forces Too much magic and religion opposed capitalism Something else going on here. Starts off by examining economic traditionalism as he calls it. (let’s just arbitrarily put this at 1517 when Luther nails down those 95 theses). Work shorter hours Earn same amount of money Not how much can I earn but how much do I need to survive? Prefer increased leisure time over profits Economic traditions precedes SOC (spirit of capitalism) Ben Franklin comes in. Make money for its own sake. Greed turned into an ethical imperative The capitalist is not a bold adventurer or opportunist but: risk minimizing/profit maximizing actor This is the foundation for genesis of capitalism and formal legal rationality Martin Luther. Calling. God calls us to do something. What? Work! What does Luther do? Confiscate Church Lands Greg Matoseian Translate the Bible Tells people that they’re responsible for their own salvation Didn’t make the church too happy! But Luther’s still conservative. Perform your job. That’s it. Keep your place. Not dynamic That dynamic moment is: John Calvin (scary guy) Think about traditionalism. Work is drugery esp for aristocrats and only slaves and low lifes work; world was a negative place compared to sacred religious world Calvin takes Luther and makes him dynamic. God has not only called us but: Diligence in worldly callings Strict asceticism with use of material goods or conspicuous consumption Systematic use of time (think of Dicken’s character “Mr. Scrooge”) Predestination Calvins doctrine of predestination in 16 and 17 centuries creates a deep anxiety with respect to the main question: Am I among the saved? Differs from Catholicism right? Catholicism magic? Ceremonial? Monks mediate between masses and god (give monk money and you go upstairs, do a hundred hail marys, climb up the church stairs on your knees etc) Cycle of sin, repentance, atonement, release, followed by renewed sin. Ceremonial not psychological; doesn’t transform everyday life in the working world; Calvin “cranks” up the tension! Few items. Greg Matoseian Keep in mind that this is the most religious moment in history. Central question on the mind of a person: where am I going (when I kick the bucket). Priests/monks are religious superstars. People go to church for everything not just worship but entertaining, education etc. Also, Weber is only talking about the genesis of capitalism. When capitalism gets going it doesn’t need the PESC. In fact, in its unholy alliance with capitalism ascetic Protestantism had planted the seeds of its own destruction! (think about what would happen to the economy if we didn’t spend etc) Once the Spirit of Capitalism assisted the growth of modern capitalism, capitalism sustains itself on means-end rationality alone. The Puritan wanted to be a person with a vocational calling; we now MUST be (us modern humans) Luther dispensed with the priest Catholic priest served as mediator between sacred and profane Christian monasticism was relatively modest (compared to other places) but still ascetic requirement. Strong inner worldly focus and emphasis on labor/manual labor Calvin: get rid of all this nonsense and magic Predestination. God has predestined who’s going to heaven and to hell; nothing you can do about it. No way to communicate with god. But doesn’t that lead to fatalism? Why work hard if nothing you can do? Actually practices in this world will reveal “proof” of election. Sign that God loves you. Calvin is around 1509-64 Richard Baxter (1615-91) in England was really the one who made a number of adaptations to Calvin’s horrible notion of predestination Intense worldly activity could counteract all doubt and anxiety in ones election Greg Matoseian Produce the evidence: wealth and profit (I know what you’re thinking: “this sounds like a Marxian ideology/superstructure) When God gives you a McDonalds in your calling and you increase its value that’s a good sign that you’re on the right track. Let’s see where we’re at now. Catholicism static and other worldly. Monks are only ones who work like crazy, produce etc. Calvin: not other worldy but THIS WORLD. What Luther and Calvin do is turn us all into monks! But we have to be active in this world! This worldly asceticism. Calling: counteracted egocentric desires, provided regulation to the believer’s life and tame “creaturely” desires! Labor became endowed with significance with respect to ones salvation status (Am I among the saved) Labor assumes a providential character (much different from traditional views of labor) You can’t purchase salvation, only demonstrate it. Ties faith to work. Psychological consequences of this are massively dynamic. God wants us to have wealth, prosper, etc to praise his goodness. Need for proof of election cranks up this psychological tension in us. Good bye tradition. Since you only have a limited time on earth in which to give glory to god and make sure you’re elect and not damned then every moment spent daydreaming, loafing, gossiping, sleeping too much etc sign of damnation Massive disturbance in our psychic structure (I know what you’re thinking but you have to put yourself in the everyday person’s shoes. Everyone goes to church, monks religious superstars etc) Greg Matoseian Ascetic Protestantism provided the psych sanctions that disciplined conduct and directed subjectivity by giving direction to practical conduct. That’s what distinguishes Occident from other parts of the world like Orient etc Produces a “this-worldly asceticism” Proof of salvation: diligence in calling, asceticism, time (time is money says Ben Franklin and even your time belongs to God) Weber: When you limit consumption (scrooge) with release of acquisitive activity what’s the result? Capitalism! Elect is active not passive; Activity guided by intellect not emotions; time span is long not short; struggle to impose order This is NOT the desire for riches alone Or the efficient adaptation to economic forces BUT Work motivated from within by an internally binding set of religious values. This ethos produces a systematization of life organized around ethical principles and a planned regulation of your life on behalf of work and the pursuit of wealth. Put another way: we are to be godlike! Constant self control and methodical rationalization of life. Once again back in those days people wondered one thing: where am I going and how can I find out. Upsets the traditional cultural ethos Ethically ordered way of life So although you can never be certain of your other worldly salvation you could produce evidence of it, such as wealth and profit (self fulfilling prophecy in other words). Since God wants his children to prosper to serve his glory you can see how profits accumulated in a certain manner would reveal your sign of election. Greg Matoseian Accumulation of wealth glorifies God. Wealth equals evidence of salvation! Moral conduct of average person deprived of plan less and unsystematic character and subjected to a consistent method of conduct as a whole. New surveillance turned the individual into his or her own accountant. So the ascetic and other worldly organization of life in the monasteries now becomes transformed into a “this worldly” asceticism that organized believer’s life comprehensively around work in a methodical calling: pursuit of profits. This gives birth to modern society in Occident Keep in mind that this is: SOC (remember too that the SOC is not just about making a buck or two but: M-C-M’). Only the genesis of capitalism. Once under way capitalism doesn’t need this ethos. Rationalization of the world: calculation, prediction and uniformity (think about double bookkeeping or cost benefit or the fact that you count how much going in and how much money going out) You have to relentlessly monitor your environment (McDonalds). Get rid of emotions, mysticism, magic, honor, Disenchantment of the world and detached attitude to dealing with customers, suppliers, repress all human feelings of solidarity. Rationality Protestant believer’s task was to bring God’s order to the natural world. Rationalized: social action is now disciplined, systematic, rigorous and methodical (esp law). Calculation like double entry bookkeeping (what is coming in and what is going out) Capitalism emerges as an unanticipated consequence of religious values! And you can see how Leroy Reed and rational law fits into that picture. Capitalism requires formal legal rationality to ensure prediction, calculation and uniformity (felon in possession or how we link the unique case to universal legal principals) Greg Matoseian Keep in mind that Weber isn’t trying to substitute a 1 sided idealistic version of reality to Marx’s 1 sided materialism. He’s trying to show the interaction between material and ideas. Not a simple causal relationship. Spirit of capitalism has an elective affinity with certain material conditions. When these link up in a specific way the dynamic may materialize. Here SOC precedes capitalism. What is the role of values in the development of modern capitalism PESC powerful demonstration of the ways in which social action influenced by non-economic forces How do values and ideas influence the playing out of economic interests OK. But is rationality good? W is not so sure. Ruthlessly dynamic Problematizes every arrangement Seeks to surpass every achievement Chokes off human freedom Iron cage of bureaucracy and that’s what the law is. Think of standardization. Makes rational measurement and assessment possible. Intellectualization means the whole of life is subordinated to rational scientific scrutiny. No magic. No room for making moral judgments Rationality makes life capable of calculation So it’s a double edge sword De-mysticizes world and allows individual to emerge from collectivity But then makes you and I the target of calculating procedures We’re dominated by bureaucratic organizations and formal legal rationality Rationality: unstoppable force in history. Life will be bleak and deterministic Greg Matoseian W uses metaphors like cages, cogs, engines and machines (think about how we communicate now via machines) De-humanizes; think of working (and eating) at McDonalds Just quantity; how long can we keep this patient alive but not improving the quality of life Disenchantment of the world Destroys human spirit Calculating world of uniformity (how are we moral creatures? Take the ethics test at work and calculate your grade means your ethical or not) Destroys meaning and tradition Irrationality of rationality (inefficiency, high cost, illusory fun and reality like Disney World, threats to health and environment, homogeneity, dehumanization and alienation) Not a happy picture for the future of civilization: concentration camps and McDonalds Think about it? We get rid of brotherhood, compassion and heroic ethical action in this new and inflexible “cosmos” where duty, punctuality, reliability, and calculations of interests and advantage domination (kind of like the Wall St. video right?). We retreat into the private realm of intimacy and try to cultivate this private realm (where meaning and dignity are left intact etc). All civic virtues are gone from this impersonal mechanism. In fact, these will go “extinct” with the inexorable march of calculation, predictability and manipulation etc Go back to our first lectures on Weber and Law. We’ve come full circle (remember specialized staff of legal professionals?) Rationality finds its purest expression in formal legal rationality (uniformity, calculation and prediction) Along the way we’ve learned something about the uniqueness of the Occident and how it came about. Greg Matoseian We’ve also seen the role of ideas and noble values that produced our rational modern world of capitalism and bureaucratic mentality, esp in the law. Just as crucial: we’ve learned something about methodology and research. That is, the crucial role of meaning or Verstehen when trying to understand the nature of social reality. Greg Matoseian


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