Modern and Postmodern Traditions in Power and Law

Modern and Postmodern Traditions in Power and Law The Law and Power Relations in Society:  A Brief Review of Modern and Postmodern Traditions To achieve an understanding of how, at the beginning of the 21st century, law has come to be understood as a manifestation of social power, it is necessary to place the question within the framework of the dominant intellectual paradigms of the past one hundred years. Such a consideration is relevant because the two major paradigms namely, modernism and postmodernism have operated according to contrary assumptions about reality in general and social reality in particular. 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 that human beings are mainly motivated, not by rationality, but by a virtually endless diversity of individual and cultural values. Thus, any overarching theory about how people do, or should, live in so ciety is bound to be inadequate, and social institutions must allow for the full range of human diversity. In the discipline of sociology Functionalist Theory dominated the modern period, but 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, while 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 legal system. But during the postmodern period the legal 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, illustrate the modern conception of law perfectly. According to Mathieu Deflem (2009: 45-46), Weber argues that the law, like all modern social institutions, including politics and the economy, is dominated by purposive rationalization, posited as the standard for both jurisprudence (legal theorizing or lawmaking) and adjudication (law-finding) in the courts. Rationalization leads to the establishment of the principle of the rule 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 impersonal and objective, giving rise to a adage Justice is blind, a central value of Western democracies, sometimes phrased as the sayings 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 influence 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 cannot 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 formal or purely legal law, and substantive or extra-legal law. Similarly, Weber distinguishes between rational law, determined by general principles, and irrational law, determined by individual and contextual considerations. Formal rational law is called positive law, while formal irrational law is called charismatic or revealed law. Substantive rational law is called natural 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 po litical legitimization: traditional, charismatic, and legal. Once 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 rationality. 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 attack on various fronts since the 1960s. Austin Turk (1976: 276) sums up the critical legal position 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 relat ion 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 reflective distortion of reality in any human claim to knowledge, making Webers 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, culture 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 designed to maintain social inequalities. The indeterminacy 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 patriarchal and oppressive to women, especially in regard to such issues as abortion, rape, domestic violence, pregnancy, sexual harassment, employment discrimination, child custody, and pornography. Feminists are divided on how to ri ght 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 vigorously 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 expressed 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 à ©lite? Critics would argue that such an abuse is inevitable. References Armstrong, 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.

Free Nature vs. Nurture Essay :: Nature Nurture Biology Socialization Essays

The Nature vs. Nurture Debate   Ã‚  Ã‚  Ã‚  Ã‚  Being yourself, being who you are. When you hear those two lines you may think they mean the same thing but do they? Think about it, you were born into this world a tiny little baby with no ideas, or preferences, but as you grew you developed a personal identity, but did it really develop or was it in you to begin with. Such questions are what leads to the great debate of nature vs nurture. If you believe you were born already with a personality, then you take the side of nature. on the other hand if you believe that your personality developed based on influences in your life beginning when you were a child then you believe in nurture. Two totally different theories, both which are believed to make us who we are.   Ã‚  Ã‚  Ã‚  Ã‚  Nature, the more scientific theory of the two, is the belief that hereditary traits found in our genes make us who we are, believable but not very convincing when we consider the theory of nurture. Human beings learn new things everyday, as soon as we come in to the world, our learning process begins. As a newborn baby, we slowly learn and adapt in order to survive in a new environment which is unlike that of our mothers wombs, our first environment in which we first grew, adapted to and developed in. The home environment parents and siblings play a huge role in determining personality. Influences from outside the family are also very important to the development of ones personality. But everything starts at home.   Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  Ã‚  One can't enjoy snowboarding or claim to like it, until one tries it, without the experience its impossible to say you enjoyed it. Correct? Or do you think its already embedded in you're genes that you'll like snowboarding. Unlikely right? Exactly, experiences and influences are what make us who we are. On the other hand think about it, what if you went snowboarding for the first time and broke your arm; deciding then that you hated snowboarding. Well then it couldn't have been embedded in your genes that you'd like it.   Ã‚  Ã‚  Ã‚  Ã‚  Scientists make a good point about genes but I believe physical aspects come through genetics, but that personality development is shaped based solely on how a person has been nurtured through their lives. All children are bad at one time in their lives; consider this, a 4 year old girl throws a book at her brother, and is punished she is put in the corner.

Female Offenders

Aarron Eilers February 22, 2010 Female Offenders The number of women incarcerated is growing at a rapid pace. This calls for a reevaluation of our correction institutions to deal with women’s involvement in crime. Increasing numbers of arrests for property crime and public order offenses are outpacing that of men. The â€Å"War on Drugs† has a big influence on why our prisons have become overcrowded in the last 25 years. Women are impacted more than ever because they are being convicted equally for drug and other offenses. Female criminal behavior has always been identified as minor compared to Male’s criminal behavior. Over the years women have made up only small part of the offender populations. There is still only a small portion of the inmate population that is female but it is increasing at a high rate. Women are participating in more violent crimes and being convicted of crimes that were historically reserved for men. The Bureau of Justice Statistics which reports a yearend report of number of females incarcerated reported that there were 26,300 females behind bars for violent crimes after the year of 2002. Violent crimes in women prisons accounted for thirty-three percent of the population. The overall female population also increased 2. 9 percent from 2003 to 2004. People have recently started paying much more attention to women who commit violent crimes. Women most times have a plan and a target when committing a crime like murder. The target is usually someone very close to them such as a spouse or their children. The reasons for committing the murder range from jealously to self defense. The female usually has been a target of violence somewhere in her past as well. Research that has been done shows that a female who commits murder tends to be older than a one who commits a petty crime. The Bureau of Justice Statistics indicated that most women who commit such a crime as murder did so while they were alone with the victim. Only eight percent of the time was another female or male present during the offense. The Bureau also reports that forty percent of the time the female was under the influence of some type of drug or alcohol. Most women who have spent time in jails or prisons have a lifelong connection with the justice system. Estimates done in the United States show that fifty-eight percent of women are rearrested, thirty percent return to prison within three years, and thirty-eight percent are reconvicted. In Kruttschnitt and Gartner’s review of the literature they suggest that the demographic plays a major part in a female’s recidivism. Females who have a history of property crime, drug use, and a lengthy criminal history are more likely to recidivate. Deschenes and colleagues study of the cohort recidivism dataset revealed similar findings. They did note that the effect of drug abuse and institutional programs were absent from the report. Some questions have surfaced when looking at the general recidivism literature. Scholars argue that the study of recidivism should have a broader range of study. It needed to add the whole life perspective not just a short period in the female’s life. Now that women are committing crimes at almost the same rate as men the question arises, should men and women receive the same treatment in the criminal justice system. This issue has sparked debate in the last few years. The current law states that the defendant should not receive any special treatment due to characteristics such as race, gender, or age. These are considered extralegal and should not be considered during the sentencing process. Gender was ignored until the early 1980’s, but when it was given attention it focused on sex differences and sanctioning instead of questioning the crimes of men and the criminal justice system’s response to men’s crimes. Most research done on sentencing and gender goes as far back as 1934 when Martin concluded that females were no more likely than males to be sentenced to prison terms. One of the most recent studies by Spohn in 2002 stated that the odds of receiving a prison sentence are two and a half times greater for male offenders than for female offenders. For numerous years, prison officials applied the same type of treatment for men and women. In the last decade with the increasing number of women incarcerated, research shows that women have different physical and emotional needs. For example, women are more attached to their children that they are leaving behind, and some have histories of physical and mental abuse. The creation of two programs, Key Crest and Forever Free were created to help with women specific issues. Recent studies done by National Institute of Justice studies found that participants in these two programs stayed drug and arrest free for over three years. Participants were tested and interviewed once a year for three years. The studies also showed that the programs provided aftercare and treatment in areas that were not addressed in previous years. Even though both varied in their approach, they both recognized the many ways there were to treat the needs of women and how they differ from men. The studies also show that gender specific programs do help inmates reenter into society. There are many factors that inhibit women to commit violent crimes. Most women suffer from substance abuse, spouse abuse and mental issues. The most common risk is being previously being abused earlier in life. A survey conducted in 2002 reported that thirty six percent of all female inmates in United States jails had been abused at some point. Twenty-six percent reported that they were abused by someone of their immediate family. Another possible reason for a rise in women’s crime may be due to an idea created by sociologists called â€Å"liberation hypothesis†. In this hypothesis due to the lack of access to certain areas in society women in the past were committing crimes such as shoplifting, fraud, and prostitution. As women start to gain access to more avenues in society they are able to commit more serious crimes. The murder rate, crimes against property, and street crimes have increased significantly. Women used to be just the drug smugglers but now they are the dealers. Dr. Chishom of the Southern Region Violence & Substance Abuse Prevention Center stated that â€Å"Quite frankly women became more daring†. Now they compete with men for the same crimes that once were dominated by men. Society also may be a reason for the rise in women’s crime rate. Society over the last 30 years has changed dramatically and has become more violent. Women feel that they may have to protect themselves more than ever. Dr. Barbara Scott of Northeastern Illinois University suggests that society has an increased acceptance of violence. Violence is portrayed in the media as a way of dealing with frustration and aggression, not only in women but in men as well. Women are no longer scared of doing things that once were deemed unacceptable. They are carrying weapons, being involved in shootings, and committing child abuse. One trend that is related to women committing crimes is drug dependency. The rising rate of drug dependency has a major impact on women’s crime trends. Women who rely on drugs must have a constant income to acquire these drugs on a routine basis. This is where women tend to be involved in burglaries and robberies to fund their drug habits. Drug use also tends to sink women into the underworld of a criminal subculture. It exposes them to violence and dangerous situations. This is where they meet men that are also connected to drug dependency. Most men that are drug dependant exploit women to feed their own habits. When studying the career of a violent female criminal research shows substantial gender variations. Most women’s careers start and end much earlier than one of a man. Females are more likely not to repeat violent crimes. Females are also more likely to shy away from any future crimes. Long term involvement as a career criminal by a woman is very rare. Case studies and interviews show a weak commitment to a life of crime. When explaining the female offending process most theories were created by men. Most theories have been challenged because they were created for men, and people wonder if those theories can be used to explain female crime. Some criminologists argue that traditional theories are male specific and are not designed to explain female crime. Approaches such as the anomie theory and conflict theory suggest that factors such as poverty and inequality underlie much of the basic crime. Consistent between the two approaches, both male and females show that they come from the poor and disadvantaged. These approaches help explain the gender gap as a consequence of the lesser relevance of success goals compared to men. The social processes such as differential association and labeling theory tend to explain common crime in terms of different opportunities for learning female values and skill sets. These theories would explain the gender gap as a consequence of lower access by females to learning criminal activity. The Control Theory suggests that poor social bonds account for much of the crime. This theory argues that most criminals come from a disproportional and dysfunctional family. Their education level is very low and they have a weak chain of conformity. The gender gap in this theory is explained through female socialization towards their bonding behavior. The utilization of the traditional theories is supported by evidence that shows that females and men overlap in their causes for committing crimes. For example, male and females alike tend to have poor education, be in low income bracket, and be of the minority status. Second, there is evidence that shows that there is close relation that females and males respond to the same societal forces. While traditional theories help understand male and female crime levels, they are less accurate at explaining different patterns of crime between the two. Different from male criminals, females are less likely to commit serious crime or lead crime organizations. When linked with males, females tend to be accomplices who help carry out the plan but never are the leader. Females are more likely to commit crime for more traditional reasons such as accomplishment, betterment, and self preservation. Situational pressures such as relationship problems, loss of a loved one, or need for income is a few reasons females turn to offending. The reentry contextual has been a way of understanding recidivism. The neighborhood a women returns to after being released is a main focus. Most women who are released go back to an impoverished environment which is not suited to keep them clear of crime. Most of these areas do not have the proper treatment centers that are needed to make them successful. The job markets in these neighborhoods are slim and sometimes nonexistent. In turn, moral for a woman who is trying to turn their life around becomes very low. Living conditions are also a key factor. Suitable living arrangements provide social and emotional support. Mallik-Kane and Visher found that fifty six percent of women released ended up living with family and friends. Most had been given some sort of financial and emotional support. Over one quarter of these women had not received any support from their families. The Justice Department's Bureau of Justice Statistics reports that there are roughly 2. 1 million female violent crime offenders in the United States. Three out of every four women commit crimes on other women. Two thirds of all violent women had some sort of relationship with their victim prior to committing the crime. Forty percent of these women were under some influence of drugs while carrying out the crime. Over half of these offenses were committed at or near the victim’s house. In 1997, there were 44 known women inmates on death row. This made up about 1. 3 percent of the total on death row inmates. Society itself is always changing and has changed a lot in the last couple of decades. Crime is constant battle here in the United States and around the world. All we can do is hope to contain it and keep it as minimum as possible. As reports have been released and studies have been conducted we can see that the crime rate involving women has increased. The rate of violent crimes as in women has significantly risen every year since the early 1980’s. At the end of 2001, there were nearly 9 times as many men (5,037,000) in prisons as there were women (581,000). However women are the fastest growing population in American prisons. In 2004, men were ten times more likely to commit violent crimes than women. That statistic is now false as women are committing more crime than ever before. Some argue that the reasoning for this is because of the economy and their social conditions. The majority of the females arrested for violent crimes came from poverty stricken neighborhoods where there was little chance for advancement. Over half of the females did not have a stable job when they offended. Females are included in more organized crime than they were ever before. This comes from being exposed to the elements to commit crime. Inhibiters such as the media who says it’s Ok to take anger and frustration out through violence or men who use women to be an accomplice in a crime. Females seem to dig themselves deeper into the criminal subculture until they end up serving a ail sentence. Unlike decades ago there are programs to help females through the incarceration process. Key Crest and Forever Free were created to help females’ obtain the correct tools and support they need to return to a normal life. Due to research done after release, it has been shown that these programs due help females stay off drugs and become a positive member of society. Works Cited Doerner, J. K. , 2007-11-14 â€Å"An Examination of Sentencing Outcomes in U. S. Federal Courts: Does a Gender Gap Exist?   Paper presented at the annual meeting of the AMERICAN SOCIETY OF CRIMINOLOGY, Atlanta Marriott Marquis, Atlanta, Georgia Online . 2010-01-24 from http://www. allacademic. com/meta/p201202_index. html Drug treatment and reentry for incarcerated women, (2005, Dec). Retrieved February 22, 2010, http://www. ncjrs. gov/pdffiles1/nij/212776. pdf Hickey, Eric. (2003). Encyclopedia of murder and violent crime. Thousand Oaks, CA: Sage. Why Women Are Committing More Crimes, (2000, July). Retrieved February 22, 2010, http://findarticles. com/p/articles/mi_m1355/is_4_98/ai_63291519/pg_2/? tag=content;col1 Women coming home: long-term patterns of recidivism. (2010, April). Justice Quarterly, 225-254. Retrieved February 22, 2010 from http://www. informaworld. com/smpp/section? content=a910861149&fulltext=713240928 Women & Girls in the Criminal Justice System. Retrieved February 22, 2010 from National Criminal Justice Reference Service Web site: http://www. cjrs. gov/spotlight/wgcjs/Summary. html Women in the criminal justice system. (2007, May). Retrieved February 22, 2010,http://www. sentencingproject. org/doc/publications/womenincj_total. pdf Women offenders, (1999, Dec). Retrieved Feb 21, 2010, http://bjs. ojp. usdoj. gov/content/pub/press/wo. pr Zaplin, T Ruth. (2007) Female Offenders: Critical Perspectives and Effective Interventions, Second Edition Sudbury, MA. Jones.

How Ethics Is Important For Business Environment - 1563 Words

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