The Conflictual Theory of Law A Pragmatist Conception of Laws as Social Institutions (original) (raw)
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Nowadays democratic liberal societies face a rising challenge in terms of fragmentation and erosion of shared values and ethical pluralism. Democracy is not anymore grounded in the possibility of a common understanding and interpretation of the same values. Neverthless, legal and political philosophy continue to focus on how to reach consensus, especially through monist, objectualist, contractualist, discursive and deliberative approaches, rather than openly affording the issue of disagreement. Far from being just a disruptive force, disagreement and conflict are matters of fact that no reflection on democracy can underevaluate. They are the major issues through which to look at the intersection of law, politics and morals. The inclusion of dissent is a powerful tool for moral recognition of different understandings of justice. That is where legal procedures become crucial. Law is a fundamental element in the building of a democracy. But it is also particularly exposed to disagreement. Language indeterminacy, dogmatic concepts and value pluralism constitute the main elements that lead to alternative and conflicting interpretations of law in a democratic framework. Major legal progress in the past has come from different understandings of the same legal materials. In this article I argue that respect for disagreement should be a moral principle in democracy and that the role of legal disagreement is essential to understand the evolution and the future directions of democracy as the government of a political community. To do so, a link between respect for disagreement and legal interpretation and argumentation must be established in order to make room for reason and avoid extreme skepticism on the contribution of law to the enforcement of democracy.
The research reported here attempts to reveal the complex relationships between ‘law’ and social behavior. The assumption is that social representations are the socio-cognitive mechanism that creates social behavior; thus, revealing the social representation of ‘law’ can give us an explanation of social behavior as it is related to law. The social representation of law among members of the divided Israeli society is very complex. It simultaneously embodies obedience to and violation of the law, freedom and limitations, negative xperiences, and criticism of the law, together with an understanding of its importance. The social epresentations of the law among our interviewees permits them to experience a feeling of autonomy, while keeping behavior within normative limits to uphold the law. Interviewees were also found to believe that the law is the strongest instrument available to ensure that society is protected and the status quo preserved. The law is seen as the defender of democracy, the weapon for coping with unstable security and the guardian against social and political chaos. By revealing the complex construct of the social representations of ‘law’, we reveal the mechanism that controls the social behavior related to ‘law’, including obedience or disobedience and the social logic for these behaviors. KEY WORDS: Israeli society, law, obedience, social representations, sociocognitive mechanism for social control
Reflections on the sociology of law: A rejection of law as 'socially marginal'
International Journal of Law, Crime and Justice, 2009
Rejecting the concept of law as subservient to social pathology, the principle aim of this article is to locate law as a critical matter of social structure e and power e which requires to be considered as a central element in the construction of society and social institutions. As such, this article contends that wider jurisprudential notions such as legal procedure and procedural justice, and juridical power and discretion are cogent, robust normative social concerns (as much as they are legal concerns) that positively require consideration and representation in the empirical study of sociological phenomena. Reflecting upon scholarship and research evidence on legal procedure and decision-making, the article attempts to elucidate the inter-relationship between power, 'the social', and the operation of law. It concludes that law is not 'socially marginal' but socially, totally central.