Questions

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fit into the workings of the overall structure.Theorists embracing conflict and Marxist ap- proaches emphasize the structuring of economic relations that provide, for them, the foun- dation for various specific studies of legal trends I shall now consider these two approaches in soihe detail.

The Functionalist Approach "Functionalism is." writes Robert A. Nisbet (1969:228), "without any doubt, the single most significant body of theory in the social sciences in the present cenlury. It is often thought to be essentially a theory of order, of stability. of how society is possible." Histor- ically. functionalism was brought into sociolog), by borrowing directly, and developing analogies for, concepts in the biological sciences. Biology', since the middle of the nine- teenth century, frequently referred to the "structure" of an organism. meaning a relatively stable arrangement of relationships between the dilferent cells, and to the

*function" of the organism lhat considered the consequences of the activity of the various organs in the life process- The principal consideration of this organic analogy was how each part of the organism contributed to the survival and maintenance of the whole.

Sociologists distinguish between the manifest and the latent functions (Merton, 1957j,9-54). Manifest functions are those lhat are built into a social system by design. They are well understood by group members. Latent functions are, by contrast, uninten- tional and often unrecognized.They are unanticipated consequences of a system that has been set up to achieve other ends. For example, the minimum wage law was enacted to provide unskilled laborers with an income slightly above poverty level. Unintentionally'. however. this law contributed lo the increase in teenage unemployment, particulady among black youths (Herbers, 1979), and reduced job prospects of low-wage earners. When the minimum wage iucreased, employers tended to hire more part-time than full- time workers, and the overall level of hiring was lower.

The basic tenets of functionalism are summarized in the following key assumptions (Van den Berghe. 1967:294-295):

1. Societies must be analyzed "holistically as systems of interrelated parts." 2. Cause-and-effect relations are "multiple and reciprocal." 3. Social systems are in a state of "dynamic equilibrium," such that adjustment to

forces affecting the system is made with minimal change within the system. 4. Perfect integration is never attained so that every social sYstem has strains and

deviations, but the latter tend to be neutralized through institutionalization. 5. Change is fundamentally a slow adaptive process, rather than a revolutionary

shift. 6. Change is the consequence of the adjustment of changes outside the system,

growth by differentiation, and inlernal innovations 7. The system is integrated through shared values.

In sociology, functional analysis is as old as the discipline. Comte, Spencer. Durkheim, Malinowski, Radcliffe-Brown, Merton, and Parsons. to name a few, have en- gaged in the functional analysis of the social world (Turner and Maryanski. I979:XI).The early theorists viewed the world in systematic terms (Ti:rner and Maryanski, 1995:49-5-5).

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CHAPTER 2 Theoretical Perspectives 61 f

For them. such systems were considered to have needs and prerequisites that had to be met to ensure survival. They viewed such systems as having normal and pathological stales, thus suggesting a system of equilibrium and homeostasis. The social world was seen as composed of iiiutually interrelated parts. and the analysis of lhese connecled and in- terdependent paris focused on how they futfilled the requisites of the sysiems as a whole and how thus. system equilibrium was maintained.

Ever since the classical sociological theorist Emile Durkheim postulated the notion that cleviance could serve certain social functions in a society- sociologists have looked for evidence to support this contention. Durkheim had in mind the idea that a society needed deviance to conlinually reaffirm its boundaries of propriety. Functional arguments for the importance of deviance are intriguing. They provide a novel wa1' of showing how certain institutions in a society, if not the society itself, continue to operate. Durkheim points out. for example, that without the existencr of sinners, a church could not exist.Their very exis- lence provides the opportunity for believers to reaffirm the faith that has been offended by the sinner.Thus. the worst thing that could happen to a church is to completely elimi- nate sin from the world and completely propagate the faith to society.

Functionalism is also present in legal anthropology. For example, in Ifre Cheyenne Wa_y, Karl N. Llewellyn and E. Adamson Hoebel (1941) outline their law-job theory about society as a whole. For societies to survive, there are certain basic needs that must be met. It is within this context lhat the wants and desires of individuals, their "divisive urges," assert themselves. The conflicts produced are unavoidable but, at the same time, essential to group survival. "The law-jobs entail such arrangement and adjustment of people's behaviour that the society (or the $oup) remains a society (or a group) and gets enough energy unleashed and coordinaled to keep on functioning as a society (or as a group)" (f941:291). They consider the law-jobs as universal, applicable. and necessary to all groups and to all societies.

Functionalism is also evident in other writers. For example, in Jerome Frank's (1930) Law and the Modern Mind, the entire discussion of the "basic legal myth" and the associated "legal magic" is grounded in an examination of their functional consequences for the legal system. Similarly,Thunnan Arnold's {1935) concern with the role of symbol- ism within legal institutions is consciously functionalist. Felix Cohen (1959) also resorts to functional analysis in his elaboration of "functional jurisprudence." Also, the writing of Lon Fuller (1969) on law morality, Julius Stone's (1966) Luw antl the Social Sciences. Philippe Nonet's (1976) ideas on jurisprudential sociology. and Andras Sajo's (2003) study of the nature and politically determined functions of governmental corruption in postcommunist transition and how political structure itself creates corrupt practices that become a structural feature of transition societies are illustrative of the functionalist ap- proach to the study of law and society (see also Nuijten and Anders.2009).

Almost from the beginning, however, the functionalist approach was attacked both for alleged theoretical shortcomings and on ideological grounds. Criticisms included com- plaints that the whole notion of function is oversimplified. Questions such as "Functional for whom?" were raised. and not without grounds, for the interests and needs of different groups in a society are often in conflict. What may be functional for one group may be dysfunctional for another. Others argue that functional analysis is a static, antihistorical mode of analysis with a bias toward conservatism. Some sociologists even suggest that

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162 CHAPTER 2 Theoretical Perspectives

there is an implicit teleology in functional analysis. in that this mode of analysis inappro- priately attribules purposes to social institutions as if they were conscious beings. As ex- pected. a sizable amount of literature in the field has been devoted to bolh fi>rmulating and refuting theib charges (see, for example,Turner and Maryanski, 1979.1995). In spite of these criticisms, as Rich correctly points out, "It can be concluded that most sociology of law theorists are adherents to structural-functionalist theory" (1978:153).

Gonflict and Marxist Approaches Conflict and Marxist approaches are based on the assumption that social behavior can best be understood in terms of tension and conflict between Efoups and individuals (see, for example, Goldstein.2005). Proponents of these approaches suggest that society is an arena in which struggles over scarce commodities take place. Closely intertwined with the idea of conflict in society is the Marxian notion of economic tlelerntinism. Economic organization, especially the orvnership of properly, determines the organization of the rest of society. The class structure and institutional arrangements, as rvell as cultural val- ues, beliefs and religious dogmas, are. ultimately. a reflection of the economic organiza- tion of a society.

According to lvlarx, law and the legal system are designed to regulate and preserve capitalist relations. For the Marxists. law is a method of dominalion and social control used by the ruling classes. Law protects the interests of those in power and serves to maintain distinctions betrveen the dominated and the domineering classes. Consequently, law is seen as a set of rules that arise as a result of the struggle between the ruling class and those who are ruled. The state, which is the otganized reflection of the interests of the ruling class, passes laws that serve the interests of this domineering class.

This breakdown of sociely into two classes* a ruling class that owns the means of production and a subservient class that works for wages-inevitubly leads to conflict. Once conflict becomes manifest in the form of riots or rebellions, the state, acting in the interest of the ruling class, will develop laws aimed at controlling acts that threaten the interests of the status quo. As capitalism develops and conflict between social classes be- comes more frequent. more acts will be defined as criminal.

It is not surprising: therefore. that many sociologists interested in law, Particularly criminal law' have espoused this perspective.The conflict view of criminal law is most no- ticeable in the now controversial writings of Marxist criminologists. Quinney (1974), for exarnple. argues that law in capitalist society gives political recognition to powerful social and economic interests.The legal system provides the mechanism for the forceful control of the majority in society.The state and the legal system reflect and serve the needs of the ruling class. In The Critique of Legal Orrler Quinney (2002:16) argues that as capitalist so- ciety is further threatened. criminal, law is increasingly used in the attempt to maintain do- mestic order.The underclass will continue to be rhe object of sriminal law as the dominant class seeks to perpetuate itself- To remove the oppression, and to eliminate the need for further reward. would necessarily mean the end of that class and its capitalist econom-v.

Similarly.William Chambliss and Robert Seidman take a conflict approach in their analysis of law. While emphasizing conflicting interests in society, they argue that "the slale becomes a lveapoo of a particular class. Law emanates from the stale. Law in a sosi- ety of classes rnust therefore represent and advance the interests of one class or lhe

CHAPTER 2 Theoretical Perspectives 631

other" (1952:72-73). For them.law is an instrument sought after and employed by power- ful interest groups in society. Chambliss (1978:149) further reinforces the notion of law as an instrument of the powerful io society by specifically pointing out that

o'acts are defined as criminal becaiibe it is in the interests of the ruling class to so define them." Austin Turk (1973) also sees law as "a weapon in social conflict," an instrument of social order that serves those who are in power. The control of legal order represents the ability to use the state's coercive authority to protect one's interests.The control of the legal process fur- ther means the control of the organization of governmental decisions and the workings of the law, which diverts attention from more deeply rooted problems of power distribu- tion and interest maintenance. Reasons (1974:103-104) considers crime as a phenome- non created by special interests who. with their definition of rectitude. create the laws of society.

Conflict theorists point out that most of the American criminal law comes directly from English common law. C. Ray Jeffery (1957) contends that acts such as murder, thefl, trespassing, and robbery, problems that were once resr:lved in the kinship group. became crimes against the state when Henry II, King of England, centralized political power and declared them wrongs against the crown. Jerome Hall (1952) traces the growth of prop- erty and theft laws to the emergence of commerce and industrialization. With the advent of commerce and lrade. a nerr economic class oI traders and industrialists emerged. and the need to prot€ct their business inlerests grew. As a result, new laws were established to protect the interests and economic well-being of the emergent class. These laws included the creation of embeizlement laws and laws governing stolen property and obtaining goocls under false pretense. According to conflict theodsts, notions of crime have their ori- gins less in general ideas about right or wrong than in perceived threats to groups with the power to protect their interests through law.

Critics have not been kind to this type of argumentation, holding that it involves enormous simplification, reification, and absence of sensitivity to the complexity of social interacrion (Manning,1975:12).There are many who concede the validity of conflict and interest-group arguments but who, at the same time, contend that bold assertions about the "ruling class" conceal more than thel' reveal. Surely, lawmaking phenomena are more complex than implied in these statements that hint at a monolithic ruling class that deter- mines legislative behayior and the creation of rules. In spite of these and other criticisms, Marxism exists in contemporary sociological theorizing and "must exist-because alien- ation exists,Alienation ret'ers Io the xay in which human beings under capitalism do not control their work, but instead are dominated by their work and by the requirements of the profit-system" (Agger, 1979:1). Elements of the Marxist approach enter into a num- ber of sociological studies on law and society and are influential on epistemological. methodological, anri theoretical approaches. as evidenced. for example. in the works of Charles E. Reasons and Robert M. Rich (1978), who present the major paradigms in the sociology of law, with a particular emphasis on conflict and Marxist approaches. The col- lapse of the Soviet planned economy ended the most extensive attempt to implement Marxism ever, and it is unlikely that another attempt will ever be made to create an econ- omy of any scale that rejects private property, markets, money. financial instruments, prices, money wages, profits. and interest. Thus" the Marxist conception of an economy that would be the negation of capitalism is a dead letter today. This is ooi to say that the

r 64 CHAPTER 2 Theoreticat perspectives

Marxist ideas have no continuing (albeit nowadays limited) appeal;they can be expected to retain some of their ailure for approaching the study of taw in society.

Critical Legal'studies Movement critical legal studies (CLS but also referred to as CRITS in more popular parlance) is a vibrant, refreshing. controversial, and enduring addition to the ongolrg jurisprudential debate on law,legal education. and the role of lawyers in society (Belliotti. l99z:L6z-lg9; Kennedy- 2007; Kramer- 1995; Neacsu. 2000; sampford, 19g!i:r 43-r46:Tirshnet. 200g; Unger, t983, 1986' 2004). It is widely considered. by critics and followers alike, to com- prise some of the most exciting sociolegal scholarship around, and one sociologist of law described it as being "where the action is" (Trubek. 1984). The movement began with a group of junior faculty members and law students at Yale in the Iate 1960s who

*have since

moved to other places. In 1977,the group organized itself into the conference on Critical Legal Studies, which now has over 400 members anrt holds an annual confererce that draws more than 1.000 participants.

The movement has been greatly influenced by Marxist-inspired European theorists, and its roots can be traced back to American legal iealism (Tomasic, tsss:ia;. Legal real- ists in the 1920s and 1930s argued against the nineteenth-century belief that rhe rule of law was suPreme. They contended, because a good lawyer could argue convincingly either side of a given case, there was aclually noihirg about the law that made any judi- cial decision inevitable' Rather, they pointed out, the out"ome of a case depended targely, if not entirely, on the predileclions of the judge who happened to be deciding it. Tnui far from being a science. the realists argued. law was virtuatiy inseparable from politics, eco- nomics, and culture. They rejected the idea that law is above poiiti", and economics

Proponenls of the moYemert reject the idea that theri is anything distinctly legal about legal reasoning- As with any other kind of analysis, legal reasoning. they maintain, cannot operate independently of the personal biases of lawyers orjudgei. or of the social context in which they are acting (see. for example. Bankowiki and Maclean.2007). Fur- thermore, Iaw is so contradictory lhal it allows the context of a case to determine the out- come' That attribute of law-its inability to cover all situations*is called indeterminacy (Tiubek. 1984:578). Because law consists of a variety of contradictions and inconsistencies, judicial decisions cannot be the self-cootained models of reasoning as thev claim to be. Decisions rest on grounds outside of formal legal doctrine, which are inevitaLly political.

Critical scholars also rejeet law as being value-free and above political, economic. and social considerations. Laws only srem neutral and independent, even those that re- flect the dominant values in societv. Moreover, laws legitimizl those values that predomi- nate in society. Therefore, laws legitimate the *trtur quo. They maintain that law is actuallir part of the system of power in society rather than a protection against it.

Although proponents of the movement insist thirt theii irleas are still tentative and evolving, their attacks on law and legal training have created a good deal of criticism. The movement has been called Marxist, utopian, hostile to rules. aid incoherent. Critical le- gal scholars have been accused of favoring violence over bargaining, of advocating the inculcation of leftist values in legal education. and of being preiccupiia with ,.illegitiinate hierarchies" such as the bar (Schwartz,l9s4): their appioach to Lw is,.nihilist]c,,, and they teach cvnicism to their students. which may resuli in "rhe Iearning of the skills of

CHAPTER 2 Theoretical Perspectives 65 f

corruption." Nihilist law teachers with a proclivity for revolution are likely to train crimi- nals and, they have, therefore "an ethical duty to depart from Iaw school" (Carrington, l9&4:227\.It is unlikely thar the controversy between proporents and opponents of the movement will bi settled in the foreseeable future (Tiubek and Esser, 1989). Further, al- though the movemeni has been fairly successful in questioning the validity of the West- ern legal system, it has failed. as the following sections will demonstrate. its major objective of developing and gaining broader support for new legal doctrines that are more representative of class, gender, and race differences. So far. the most useful function of the moyement is indicating the extetrt to which politics influences the legal svstem (Goodrich, 1993).

Feminist LegalTheory Feminist Iegal theory is another intelleclual moyement of considerable influence, signifi- catrce, and impact. It is concerned with issues that are central to a broader intellectual and political feminist movement: sex-based equality at the work place, reproductive rights, domestic violence, sexual harassment. sexual preferences. and rape. just to mention a few (see. for example, Barclay et al.. 2009: Fineman et al.,2009; Ford.2006; Horvath and Brown.2009; Kolmar and Bartkowski,2010; Lloyd et a1.,2010: Paxton and Hughes.2OAT:. Rhode and Sanger,2005).It draws from the experiences of women and from critical per- spectives developed in other disciplines in analyzing the relationship between law and gender (Frazier and Hunt, 1998: Frug, 1992a Greenberg et aI.,2008; Heinzelman,2010; Sullivan. 2004: Wittianns, 2004). Unlike critical legal studies, which started in elite law schools and were inspired predominantly by notions of what may be considered contem- porary Marxism, feminist legal theories emerged against the backdrop of mass political movements (Rhode,1991:334).These political backlashes for feminists included the de- feat of the Equal Rights Amendment. setbacks in abortion rights. same-sex marriage ob- stacles, continued sexual subordination and exploitation in the profession of law, and the general prevalence of sexism in mosl walks of life. The "tough on crime" policies are also thought to have had a series of negative consequences on women: cuts from social services to pay for crime control can disproportionatelv affect women: women incur in- creased responsibility for family while men serve longer sentences. and women are often victimizecl as thfud parties by government when women are associated with criminals (Chesney-Lind and Pasko, ?OO4a,20O4b; Miller, 1 998).

A dominant tendency in feminist legal theories is to regard men as the source of women's problems (Lorber, 2009; Naffine, 1990:20. Wing. 2003). There is a strong convic- tion that male-dominated jurisprudence perpetuates women as objects (Abrams, 1995; Eskriclge and Hunter,1997). Society is viewed as basically patriarchal, organized and {ominated by men, and, as a result, not very hospitable to women. Not surprisingly, pro- ponents of the theory consider it one of the most crucial challenges to contemporary law and legal institutions (Bartlett and Kennedy. 1991:1).

There are at least three predominant. although by no means mutually exclusive. themes in feminist legal literature (see, for example, Delamont.2003; Moran,2006).The first deals with women's struggle for equalitl, in a male-dominated legal profession and in the broader society. Feminists challenge legal claims of fairness and the impartiality of

r 66 CHAPTEB 2 Theoretical Perspectives

law in dealing with women (Grana,2009). The argument is that men directly or indirectly have endeavored to maintain their own power and to keep women in their place. There are many structural constraitrts to perpetuate inequality. One is law's respect for prece- dent. But for feininists, the emphasis on precedenls raises lwo concerns. First, existing precerlents tend to support and reinforce a status quo that may be more favorable to male than to female interests. Second, reasoning not based on precedent or accepted doc- trine is often viewed as extreme and is less likely to be successful than arguments based on precedents. Examples of these two concerns are male-only combat rules, job security for pregnanl women. and materoal child-custody preferences.

In rhe second broad theme of feminist legal scholarship, the argument of male bias is extended to include practically every feature of law. The law. according to this theme, is a reflection of a typical male culture, a masculine way of doing things. Law. therefore. is cor- rupted for women by its inherent masculinity-The task feminists face is to come up with a completely new law for women- Such lavr should be devoid of norms and characteristics that reinforce male prerogatives and female powerlessness about gender roles and private intentions. For example, the male legal culture dismisses or trivializes manv problems that women face, such as sexual harassment and date-rape (Horvath and Brown,2009: Stein, 1999).They capture different subiective experiences of shared social realities: For the man, an office pass is sex (and pleasurable): for the woman, it is harassment (and painful). For the man, the dinner and ils aftermath is a date (with certain expectations): for the woman, it is rape and frightening. Many gender-specific injuries are still dismissed as trivial (sexual harassment on the street); consensual (sexual harassment on the job); humorous (nonvio- lent marital rape); deserved or private (domestic violence); nonexistent (pornography); legally predetermined (marital rape, in states where legislatures have yet io outlaw it) (Frug. 1992b;808); or lhe use of battered women syndrome defense as an excuse for a vari- ety of crimes. ranging from homicide to fraud (Coughlin. 1994).

The third dominant theme challenges the very concepts law invokes to support its contention that it is a just and fair iustitution. Contrary to professed notions, law is not yalue-neulral. objective, rational, dispassionate. and consistent. This is because law de- fines those concepts in a typically masculine way, ignoring or devaluing the qualities as- sociated with the experience of women- Essentiall]'' the problem is that law claims to be neutral in relation to the sexes (and other social categories); yet, the verY way it argues for its neutrality is gender-biased.The particular style of maleness can best be illustrated by the concept of "rational person," a mythical legal subject who is coherent. rational, acts on ftis free will, and in ordinary circumstances can be held fully accountable for /lri' actions (Naffine. 1990: L-23).

Feminists are pragmatists (Chafetz,1997:Heinzelman.20l0;Radin, 1991) and rely on feminist legal methods (Bartlett, 1991; Jarviluoma et ai.,2003; Kleinman,2007: Ra- mazanoglu and Holland,2OOZ) to advance their cause. Feminists contend that ri/ithout un- derstanding feminist meihods, law will nol be perceived as legitimate or "correct." These methods, although not unique to feminists. seek to reveal features of a legal concern that more traditional approaches tend to ignore or suppress- There are three such basic merhods (Bartleft . i991 :370*403).

One method asks lhe woman question.rrhich is designed to probe into the gender implications cf a social practice or rule. Asking the woman queslion compensates for

AD

CHAPTER 2 Theoretical Perspectives 67 I

law's failure to take into account experiences and values that are more typical of women than of men. Nowadays. feminists ask the lyoman question in many areas of the law. In the case of rape, they ask why the defense of consent deals with the perspective of the defendant and what he "reasonably" thought the woman wanled rather than the point of view of the woman and what she "reasonably" thought she conveyed to the defen- dant. The woman question asks why pregnancy is virtually the only medical condition excluded from state employee disability plans; why women cannot be prison guards on the same terms as men; and why conflict between family and work responsibilities is considered a private matter for women Io resolve rather than a public concern involving the reslructuring of the workplace. Essentially. the woman question shows how the predicament of women reflects the organization of society rather than the inherent characteristics of women.

Another method,lirninist prlclital reasoning,, deals with features not usually re- flected in legal doctrine. The underlying assumption is that women approach the reason- ing process differently from men. that women are more sensitive to situation and context, and that they tend to resist universal generalizatir:ns and principles. An example is mi- norso access to abortion. The notion of family autonomy seems to justify the legal require- ment that a minor obtain parental consent before abortion. The young woman is immalure, and parents are best suited to help her to decide whether or not to terminate her pregnancy. However, the oflen tragic and wrenching circumstances under which a mi- nor may want to avoid notifying a parent about an abortion demonstrate the practical difficulties of the matter. Often, minors are traumalized by their parents' knowledge of their pregnancy.Women may be compelled to coutinue their pregnancy and subsequently give up the child for adoption, 'rhich is contrary to their intenlions. Or they may be sub- jected to various forms of parental rejection or manipulation. Feminist practical reason- ing challenges the legitimacy of the norms of those who claim to speak on behalf of the community, and they seek to identify perspectives not represented in the dominant monolithic male culture.

A third method. consciousness-rolsrng provides an opportunity to test the validity of legal principles through personal experiences of those who have been affected by those principles. The idea is to explore common experiences and patterns that come about from shared recollection of life events. It enables feminists to draw insights from their own experiences and those of other women and to use these newly formed insights to challenge dominanl versions of social reality. In consciousness-raising sessions, women share their experiences publicly as victims of marital rape, pornography, sexual harass- ment on the job, or other forms of oppression or exclusion based on sexual orientation (Lloyd et a1..20101Robson, 1994;Williams,2004), in an attempt to alter public perception of the meaning to women of practices that the dominant male culture considers harmless or flattering.

Of course, feminist legal theory and its methods are not without their detractorr In part as a reaction to feminist legal scholarship. there is a nascent intellectual movement of critical studies of masculinity (see, for example, Collier. 1995;Hearn. 1992).The con- tention is that men a(e oppressed within patriarchy in a fashion comparable to women's oppression- It is not yel an institutionalized attempt at "men's liberation." albeit there are already efforts lo legitimize the endeavors of politically powerful individuals and

t 68 CHAPTER 2 Theoretical Perspectives

organizations to "improve" the legal rights of men (Collier, L995:26\.There is also a call for the development of a lesbian legal theory, "a theory about law that is relentlesslY and inteltigently lesbian." as a component of contemporary legal scholarship (Robson. 1992:37;see also.Frneman el al.,2009; Richardson and Seidman' 2{D2)-

The assumption of a dominant androcenlric homogenous legal culture is an exag- geration. It is more of a rhetorical than a factual contention. The classical Marxist polar- ization of the sexes into a dominant and a subordinate class, with the concomitant proletarianization of gender, represents a forceful argument but one of limited intellec- tual substance and appeal. In an attempt to depicl the benefits that accrue to men in what is considered an essentially sexist institution, many feminists have overlooked the fact that not all men benefit equally from legal sexism.Indirectly and perhaps unintention- ally, allusions are made only to successful white middle-class males. with their unique form of white middle-class masculinity while minority and gay males are excluded (Cante, 2010; Keen and Goldberg, 1998). A close examination of the principles and methods of law also reveals thal there are many people who are omitted or maltreated on the basis of class, race, and ethnic background, in addition to gender. Thus, to assume that we are tlealing with a clear-cut issue of "us versus them" gender-based exploitation is an oversimplification.

There are also some perplexing dilemmas confronting feminists For example, there is no consensus in the literature aboul various options. In the context of male-only draft, statutory rape laws, and pregnancy, feminists have two choices: Either they claim equality for women otr the basis of similarities between the sexes or they demand special treat- ment for women on the grounds of basic sexual differences. This difference-versus- similarity argument carries over into a variety of other areas. Il is an either/or proposition, and critics maintain that feminists cannol have it both ways (Williams. 1991). Feminist legal theory also fails to address issues of democracy and citizenship (Higgins. 1997) and age (should a 4-year-old pre-kindergarten boy be suspended for "inappropriately hug- ging" a teacher's aide or a S-year-old for "sexually harassing" a girl in his class b5'pinch' ing her bottom? [Hunter,2006]). and neglects the formulation of a positive theory of female sexuality (Franke.2001). It should also be noted that a century or so ago, in 1913, Toronto already launched an experiment in feminist ideals: a woman's police court-This particular court offered a separate vetrue to hear cases that involved criminalized women (prostitutes, vagrants. thieves, alcoholics, and so on) gathered and struggled with the meaning of justice (Glasbeek. 20i0).

The cult of victimhood has also become widespread; women are viewed as defense- less and oppressed, social and sexual violence are treated as the same. and men are guilty

and are to be held accountable. But by conflicting real and false victims, feminism runs the risk of tosing credibility with the younger generation. Preoccupied by putting men on trial, the movement of recent years has reaciivated old stereotypes and ignored the issues that were the reasons for ils existence and thus coming to a dead end (Badinter, 2006). Still. in spite of these criticisms, feminist legal theory and its methods represent an important in- tellectual movement challenging traditional legal doctrine both in the United States (Bartlett and Kennedy, 199i; Bartlett et a1.,2009; Ford,2006; Frug. 1992; Greer.2000l Naffine,1990) and in Europe (Bernstein 1994).

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CHAPTER 2 Theoretical Perspectives 69 f

Critical Hace Theory Critical race theory (CRT) is an eclectic, dynamic, and growing movement in law with close to 900 leading law review articles and dozens books directly or indirectly devoted io it (see. for example, Ayres. 2003; Delgado, 2004; Delgado and Slefancic.2000; L6pez, 2006. 2007: Yaldes et al., 2OO2).

Like feminist legal theory. CRT is concerned with questions of discrimination, op- pression. difference. equality, and the lack of diversity in the legal profession (Johnson, 1997). Ahhough its intellectual origins go back much farther, the inception and formal organizalion of the movement can be traced back to a 1989 workshop on CRT in Madi- son, Wisconsin (Delgado. 1994, 2004; Delgado and Stefancic. 2000; Harris. 1994: Hayman. 1995: Scheppele, 1994). Many of the proponents have been previously involved with criti- cal legal studies or feminist jurisprudence. and the 1989 conference effectively ratified CRT as an important component of legal lheory. The CRT movement" along with the Latino-focused critical legal scholarship or LatCrir (Bender,20O4:Valdes, 1997;Valdes et a1..2002), atrempts to rectify the wrongs of racism while acknowledging that racism is an inherent part of modern societ1,. Racism is embedded in the system. and proponents rec- ognize that its elimination is impossible: but at the same time. they insist that an ongoing struggle to counteryail racism must be carried out.

In a way, the word critical reflects a continuity between critical legal studies and critical race studies. Both seek to explore the ways in which law and legal education and the practices of legal institutions work to support and maintain a system of oppressive and inegalitarian relations. But CRITS do not generally look outside of the law to iden- tify the forces that aclually determine the content of legal rules while CRT prompts a recognition of the urgency of racial problems and an uncompromising search for real so- Iutions rather than temporary and comforting stopgap measures (Chang. 1993: Culp. 1994; Farber, 1994). The basic premise is that persons of color in the United States are op- pressed and being oppressed creates fundamental disadvantages for those who are so lreated. CRT focuses on the experiences and situations of oppressed people of color, and provides an outlet for the concrete experiences of subordinates. Because of oppression, people of color perceive the word differently than those who have not had such experi- ence. CRT scholars can thus bring to legal analyses perspectives that were previously ex- cluded. Through narratives and "story telling," some scholars share thefu experiences or the experiences of other people of color to make their presence felt in legal scholarship.

Critical race theorisls extend traditional civil rights scholarship to Iocate problems beyond the surface of doctrine to the deep structure of American law and culture (see. for example, Fleury-steiner and Nielsen,2006). Racism is viewed not only as a matter of individual prejudice and everyday practice, but also as a phenomenon that is deeply em- bedded in language and perception. Racism is in a ubiquitous and inescapable feature of modern society, and despite of{icial rhetoric to lhe contrarv. race is always present even in fhe most neutral and innocent lerms. Concepts such as justice,lntlh,and reason ate open to questions that reveal their complicity with power. This extraordinary pervasive- ness of unconscious racism is often ignored by the legal system.

Proponents of CRT have a commitment to a vision of liberation from racism through reason and efforts to separate legal reasoning and institutions from their alleged

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racist roots. Justice is still possible. and it is the property of both whites and nonwhites. CRT seems confident that coming up with the correct theory of race and racism will lead to enlightenment. empowerment, and. eventually, to emancipation.

As all othii intellectual developments. CRT has also come in for criticism (see. for example, Ayres, 2003). As a matter of formal law, blacks and other people of color are no longer barred from professional jobs. Evolving laws and social norms have opened the door, particularly for quatilied pectple of color. How widely this door has opened is the subject of debale. But for present purposes. it is enough to observe that, over the past thirty years, changes in our laws and nonns have increased the representation of people of color in professional workplaces. The diversification of the professional workplace ren- ders these workplaces important sociul contexls for thinking about racial formation-that is to say, the social construction of race.

Anolher concern is that CRT articulates its conception of race as a social construc- tion aI the raacro level, focusing primarily on legal and sociopolitical processes. It has not paid attention to the interpersonal ways in which race is produced. That is, CRT often ignores the racial productivity of. the choices people of color make about how to present themselves as racialized persons. As a general matter, CRT's race-as-a-social-construction thesis does nol include an analysis of the race-producing practices reflected in the daily negoriations people of color perform in an atlempt to shape how people (especially white) interpret their nonwhite iclentities. For example, a Latina may decide not to speak Spanish at work. she may decide to hold her tangue.or she may refrain from socializing with other Latina workers.These are all race-constructing choices: How a Latina exereises them will inform how her employer and fellow employees experience het as a Latina-

There also seems to be a contradiction between its commitment to radical criticism and its emphasis on racial emancipation. If the very language used to describe justice is infected by racism and gradations of power, what is the objeclive of critique? Another criticism is that it lacks a standard methodology and a set of common tenets. Further, it is also seen as a reformist project, not really new and distinguishable from traditional civil rights scholarship (which is different from the current controversies surrounding civil rights and counterterrorism policies [see, for example, Dyzenhaus,2009]), which was set to eliminate discrimination but failed to achieve fully its stated objective. In the final analysis, CRT is a lroung intellectual movement that has the potential to have a profound effect on legal scholarship in the coming years.

SUMMARY This chapter has traced the development of legal systems and has examined the principal theories of law and society. In a historical coutext,legal development. industrialization, urbanization. and modernization are closely intertwitred" Legal developmenl is condi- tioned bv a series of integrative demands, stemming from society's economic. political, educational, and religious institutions. From a developmental perspective. the primitive, transitional, and modern legal systems were discussed. These three types are still present in the world's societies. Although one should be careful not to emphasize unilinear evo- lution. it caa be inferred from the discussion that, to the extent legal change takes place

CHAPTEB 2 Theoretical Perspectives 711

in a society, it will follow more or less the pattern outlined. What distinguishes these legal systems from each other is the comparative degree of differentiation between basic legal elements. In the process of development, the once-blurred elements of larry. courts, legis- lation, and enfortement become increasingly separated from one another. Accompany- ing the emergence of laws. court systems, police force. and legislation is a trend toward increasing size. complexity. differentiation. and bureaucratization.

Among the theorists discussed. there seems to be more or less a general consensus that societal ancl legal complexities have gone hand in hand. Beyond that. there is little agreement. Many of the European pioneers discussed reacted in various ways to the in- fluence of natural law and attempted lo account for it from an evolulionary perspective. The classical sociological theorists covered have recognized the essential role of legal in- stitutions in the social order and have made important explorations of the interplay be- tween law and society.The sociolegal theorists were guided by social science principles rn the development of their diverse perspeclives on law and society. Making sense of the idea of law remains an ongoing enterprise. as evidenced by the efforts of the contempo- rary theorists discussed.

These efforts at explaining the interplay between law and society should be seen in the context of intellectual, political, and social climates of the particular theorists. [n each historical epoch. every interpretation of social reality posils certain questions and pro- vides certain ans\yers. According to S. N. Eisenstadt {1972').tension is inherent in intellec- tual life because of the tendency to challenge the intellectual construction of social reality. If a theory of law and society is developed by one group of intellectuals, this will' provide an incentive ficr others to view the matter in another way. Eisenstadt's insights account, in part, for the diverse explanations of the relationship belween law and society and the nature,province, and function oflaw in society.

Currently, there are two widely accepted approaches to the study of law and soci- ety. Sociologists embracing the functionalist approach attempt, in various wa!,s, to ac- count for law in society within the overall framework of the theory that society consists of interrelaterl parts that work logether for the purpose of maintaining internal balance. Sociologists advocating conflict and Marxist approaches to the studl, of law in society consider conflict inevitable and ubiquitous in societies. as a result of inescapable compe- tition for scarce resources.They are preoccupied with debunking myths about society and advocating changes in what they regard as harmful social relations. structures, and processes that exist in today's social order- Proponents of the CLS movemenl argue lhat there is nothing inherently rational. scientific. or neutral about the law-nothing that would dictate the outcome of a particular case. They maintain that law is riddled with contradiction and prejudice and that it is heavily in favor of the wealthy and powerful. Another movement of considerable influence is that of the feminist legal theory. Propo- nents challenge the impartiality of larv in dealing wilh women and argue that law is a re- flection of a typical male culture. Feminists rely on feminist methods that seek lo reveal aspects of law that more traditional methods tend to ignore or suppress. Finally, propo- nents of CRT argue that the rool causes of racial inequality still persist in American soci- ety, embedded in law, language, perception and structural conditions, and there must be an uncompromising search Ior real solutions rather than convenient stopgaps.