Modern and Postmodern Traditions in Power and Law

Modern and Post redbrick Traditions in Power and LawThe Law and Power Relations in companionshipA Brief reexamine of Modern and Postmodern TraditionsTo achieve an understanding of how, at the beginning of the 21st century, natural equity has come to be understood as a manifestation of kind office staff, it is necessary to place the question within the mannequin of the dominant intellectual paradigms of the onetime(prenominal) one hundred years. Such a consideration is relevant because the devil major paradigms namely, modernism and postmodernism have operated according to contrary assumptions approximately reality in global and brotherly reality in crabby. Modernism, which dominated Western society throughout the 20th century until the 1960s, assumed that all human enterprises should be conducted according to the principles of universal rationality, with a strongly centralizing tendency emphasized in all social institutions. Postmodernism, on the other hand, assumes th at human beings atomic number 18 mainly motivated, not by rationality, nevertheless by a virtually endless diversity of individual and cultural set. Thus, any overarching theory about how people do, or should, live in society is bound to be inadequate, and social institutions must hold for the full range of human diversity.In the discipline of sociology Functionalist Theory dominated the modern period, exactly during the past few decades Critical Theory has come to dominate the postmodern period. To put it simply, Functionalism assumes that society works, because of its inherent harmony, spot Critical Theory assumes that society does not work, because of its inherent conflicts. As far as law is concerned, during the modern period a rationally independent and fair distribution of justice was supposed to characterize the judicial dodge. But during the postmodern period the level-headed system has come to be regarded by many of its critics as the source of often inequitable i. e. distributions of power, specifically motivated by, and ultimately working for, the interests of the state in general and the cultural elite in particular.The writings of Max weber (1864-1920), one of the founding spirits of sociology, instance the modern conception of law perfectly. fit to Mathieu Deflem (2009 45-46), Weber argues that the law, like all modern social institutions, including political simile and the economy, is dominated by purposive rationalization, posited as the standard for both natural law (legal theorizing or law devising) and adjudication (law-finding) in the courts. rationalisation leads to the establish ment of the principle of the line up of law. This means that all social conflicts are to be settled in the courts according to established laws that are written down and codified. The rule of law is intended to be electroneutral and objective, giving rise to a adage Justice is blind, a central value of Western democracies, sometimes phrased as the sa yings All are equal before the law and No one is above the law.According to Joyce Sterling and Wilbert Moore (1987 68-69), Weber accepts law as creating its own sphere of autonomous social reality, but its catch is relative, not absolute. The more a legal system looks to itself rather than to external social, political, and ethical systems in making and applying law, the greater the degree of relative autonomy. In the United States legal system The Exclusionary Rule and The Miranda Rule are examples of the law defining itself and acting independently of other social concerns. A second characteristic of legal autonomy is the principle of equal competencies whereby counsel is provided for those who potnot afford it.Weber distinguishes between subjective rationality, in which values influence individual decisions, and objective rationality, in which principles determine social decisions. He also distinguishes between glob or purely legal law, and substantive or extra-legal law. Simi larly, Weber distinguishes between rational law, determined by general principles, and incorrect law, determined by individual and contextual considerations. Formal rational law is called convinced(p) law, while formal irrational law is called charismatic or revealed law. Substantive rational law is called intrinsic law, while substantive irrational law is called traditional law. In the words of Sterling and Moore (1987 75), Although Weber denied that he was posing a unilineal process of rationalization, he did tend to view legal systems as moving from irrational to rational, and from substantive to formal rationality. Moreover, Weber links his typology of law to his typology of politics. He identified three types of political legitimization traditional, charismatic, and legal. formerly again, according to Sterling and Moore (1987 76), As law becomes rationalized, it becomes its own legitimizing principle in other words, the rule of law, what Weber calls formal legal rationalit y. This is aided by bureaucracy and professionalization, ensuring calculability or predictability in legal matters and making the system self-contained and seamless, almost totally isolated from moral, economic, political, and cultural interests. Webers modern rationalistic conception of law has suffered a severe critical encounter on various fronts since the 1960s. Austin Turk (1976 276) sums up the critical legal rank perfectly Contrary to the rational model, law is actually a set of resources whose control and mobilization can in many ways . . . generate and exacerbate conflicts rather than resolving or softening them. In short, power is the control of resources and law is power (280). The mere mention of power in relation to law is bound to evoke the spirit of Karl Marx (1818-1883).According to Alan Hunt (1985 12, 20-22), the content, principles, and forms of law are all matters of ideology that is the pondering distortion of reality in any human claim to knowledge, making W ebers political legitimation by rule of law nothing more than one opinion among many (sometimes irrational) competing opinions about the proper relation of law and power. Moreover, as Elizabeth Armstrong and Mary Bernstein (2008 75-76) point out, the modified Marxist argument whereby governments are the only rule makers and social reformers define themselves solely in relation to the state has now become obsolete. According to these authors, floriculture itself is constitutive of power. If this is true, then law has already lost much of its supposed power merely by definition.Kim Lane Scheppele (1994 390-400) provides an excellent overview of critical jurisprudence theory, all of it based on the foundational belief that rational jurisprudence theory masks the fact that political interests or power relationships are what really drives the legal systems of Western democracies. An attack on liberal legalism argues that rights, neutrality, and procedural justice are all fictions design ed to maintain social inequalities. The indefinity thesis argues that contradictions and inconsistencies within the law make purely rational adjudication impossible. There are many particular manifestations of critical jurisprudence theory. Feminist jurisprudence, for example, contends that the way gender is defined socially often makes the law olden and oppressive to women, especially in regard to such(prenominal) issues as abortion, rape, domestic violence, pregnancy, sexual harassment, employment discrimination, barbarian custody, and pornography. Feminists are divided on how to right the wrongs of rational jurisprudence. Some advocate treating women exactly the same as men, while others argue that women should be treated differently. In either case, the objective is to achieve equality with men through the law. Similarly, critical race theory argues that people of color have been oppressed by the law by being silenced or having others speak for them, and they have pleaded vig orously for the opportunity to tell their stories, so their culture and their lives can be treated fairly by the law. In fact, the theme of the relationship of power to the law has been most compelling addressed in terms of the indeterminacy of language itself an argument explicit by Jacques Derrida in his theory of deconstruction. If the rational rule of law is enshrined as a written code, but language itself is open to a diversity of interpretation, how can the rule of law be trusted not to be abused by the judges and lawyers representing a powerful political lite? Critics would argue that such an abuse is inevitable.ReferencesArmstrong, E. A., Bernstein, M. (2008). Culture, power, nad institution A approach to social movements. Sociological Theory, 26 (1), 74-99.Deflem, M. (2008). Sociology of Law Visions of a Scholarly Tradition. Cambridge Cambridge University Press.Hunt, A. (1985). The ideology of law Advances and problems in recent applications of the concept of ideology to the analysis of law. Law Society Review, 19 (1), 11-38.Scheppele, K. L. (1994). Legal theory and social theory. Annual Review of Sociology, 20, 383-406.Sterling, J. S., Moore, W. E. (1987). Webers analysis of legal rationalization A critique and constructive modification. Sociological Forum, 2 (1), 67-89.Turk, A. T. (1976). Law as a weapon in social conflict. Social Problems, 23 (3), 276-291.