What are the sources of law? In the West, the law embodies a phenomena that transcends individual or even social group control; arguably it is above politics and above social or even economic class. Is this true?
One thing that I've understood based on my studies is that law is a product of two powerful forces in society which are distinct and intertwined in the same breath, namely: culture and politics.
Law differs largely on how important one source is over the other or how much one source has overcome another in society's makeup. For instance, while the law against murder exists in the United States, Europe, Africa, and the Middle East, the interpretation of legal murder differs from one society to the next based on the culture. In the Middle East, some cultures allow for the "murder" of one's daughter if she has brought shame on the family, in the US, one may "murder" another for self-defense but may not kill one's daughter for her acts. In Europe, the death penalty is banned while in the US and many other societies, the death penalty is still alive and well, e.g. Saudi Arabia. The point being made here is that while law against a specific human behavior may exist universally in all systems, the circumstances allowing the application of this law or exceptions to it differ drastically.
So next posting, I'll talk a bit on politics and I invite commentary on my points thus far.
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3 comments:
I am happy to see you have your blog up and running. Looking forward to your entries and learning more about your work.
Jessica
I'll tackle your first question - is law in the western sense above politics, social or economic class? In theory it is supposed to be; but once thrown into the mix of human emotions, wants, controls, and the world of competing interests, then this question is merely an academic one. A marxist would argue that law is a mere controlling process thrown upon the masses to keep them subserviant to bourgeouis interests. A capitalist would claim law is the pillar that holds property rights in-tact and keeps private interests in motion, while an anthropologist may argue law provides indigenous people rights they may not realize they ever had...point is, it depends upon the perspective you're looking at it from, namely whether your perspective is from the top of the mountain or the bottom of the valley. The OJ trial was a pretty good example of the failure of law and how money, power, culture, and politics all played a part in getting OJ out of an otherwise red-handed predicament. So, I guess I would have to add economics and/or power to your list of forces. Granted economics is a bi-product of culture in some sense, e.g. tribal cultures practicing reciprocity and indigenous controlled trade as opposed to western modes of inpersonal market mechanisms. However, power and who controls what in society can be associated with politics and culture but is in a class of its own.
Anyway, it appears you are looking at things from a constructivist perspective, where norms and ideologies of a society provide the driving force behind law and changes of it.
Glasgow: good points. The perspective always determines the schemata of thought and usually the final conclusion. A woman attempting to procure public housing in the US must mitigate the legal culture of social welfare and particularly administrative law. This differs quite drastically from the legal culture of a Chinese citizen in Sezchuan province dealing with the Chinese welfare state. So ultimately, culture and politics alone is probably a bit too cursory. Perhaps we should distinguish whether we are talking about the "legally empowered" as opposed to the "legally disenfranchised." The distinction definitely makes a difference in the terms of what legal choices are available and more importantly what legal system is chosen to resolve conflict. For instance, in the rural communities, "gentleman's agreements" still arguably exist in contract law; whereas in an urban context, a lawyer is nearly a requirement in any contract drafting. The same holds true in cross-cultural comparison where the West works on a paper-electronic banking system built on international and national regulations by administrative agencies. Compare this to the havala system in Southwest Asia and the Middle East which arguably involves a much smaller amount, several billion, but still a significant number.
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