Law and Social Injustice, Spring, 05, Dr. Unnever. Please bring this copy of the test with you to class. Also, do not write on it. I will select two questions for you to answer the day of your exam.
1. Use Diamond's analysis of the origin of law in proto-states to thoroughly comment on Durkheim's analysis of law.
2. Compare Weber's 'substantive irrationality' to Diamond's discussion of how cultures that have not created a proto-state or nation state maintain law and order. According to Diamond and the class lectures, what preconditions are necessary for the creation of a proto-state? How are these preconditions reflected in the legal order and courts? What are the differences between early proto-states and full-blown modern nation states?
3. Use Weber and Unger to explain why a relatively autonomous state/legal order (define, in detail) and a formal rational legal order (define) only developed in post- feudal Europe. What role did the introduction of capitalism play in the creation of this formal legal order? Include in your answer a detailed explanation of what natural law is (define, in detail) and how it may have influenced the form and content of the American capitalist legal order. Also, include in your answer a brief historical sketch of the origin of common law. The British eventually exported this legal order to the U.S.
4. What are the purposes of Weber's typology of different legal orders? Why does he analyze structures of lawmaking and lawfinding? Fully reproduce Weber's typology. Describe the legal order in each cell and include illustrative examples.
5. For Weber, the capitalist legal order facilitated the expansion and growth of capitalism as an economic system--explain. Use Weber's analysis of "contracts" to show why and how capitalism needs a formal rational legal order. However, Weber develops a very critical approach of the consequences of a formal legal order and capitalism as an economic system through his analysis of contracts--explain. Is his perspective similar or different from Durkheim's--why or why not? Compare and contrast Weber and Durkheim's analysis of contracts.
6. Discuss the two sources of lawmaking at the federal level in the United States. Is legislative lawmaking formally rational--why or why not? What are the sources of legitimacy for both legislative law and for case made common law? One could theoretically argue that Supreme Court Justices are the ultimate interpreters of the law. In addition, given the natural law base of the American Constitution, these justices are just trying to create a system that is 'right' with God--explain. That is, Supreme Court Justices are free from ideological biases and those who, in theory, simply interpret the Constitution create a natural law sense of justice. Use Unger and Weber in your answer.
7. Explain: In sum, during the 300 years preceding the establishment of English colonies in North America three important innovations were introduced into English law and English legal thought. First, law became an important ally of those seeking to maximize profit through capitalist market relations by defining many acts that disrupted the predictability of market relations as crimes, that is, as harms against the state, rather than as civil violations of contracts between individuals. Second, criminal law came to be seen as an appropriate tool for insuring an adequate supply of cheap labor, first for the agrarian economy and later for the developing industrial-mercantile economy of early capitalist England. Third, and perhaps most importantly for contemporary criminal law, members of the laboring class who turned to theft, violence, idleness, or other forms of deviance as an adaptation to the brutal conditions of their lives were defined as criminals. In so doing the English State absolved the emerging capitalists who profited greatly from the brutal conditions of working class life of all responsibility for the consequences of these conditions.
8. Would Durkheim, Weber, and Unger agree with the argument that the state is a value neutral arbitrator between competing interest groups? Given that the USA is a capitalist society and therefore creates economic classes some of which are more powerful than others (the capitalists), would Durkheim, Weber, and Unger agree that our laws simply and only reflect the interests of the capitalist class? How does one reconcile the obvious fact that groups that are well organized have more influence on the content of our laws than ordinary citizens? If you believe that the rich dictate the content of our laws than why do you and most of everyone else obey the laws of the United States?