Transforming Law and Society: Towards Responsive Law

Author: P. Nonet
Publisher:
Publish Date: 2004-01-01
Features: Excerpt Legal property control becomes actual control over people. We see that ownership thus assumes a new social function. Without changes in norms or the emergence of collective consciousness, an actual right is imposed upon the absolute dominion of individuals over tangible objects. This right is not based on specific legal provisions. It is a right of control—the power to issue commands and enforce them. We also see that this adjustment of power and labor relations remains hidden from the entire legal doctrine of the bourgeoisie, because their doctrine is merely aware of its formal, general, and external limitations, that is, its foundation is the employment contract. [31]
2. Law institutionalizes dependence. Dependent poor people are treated as "wards of the state": they are subordinate to specific systems (welfare systems, public housing systems, etc.), bureaucratic supervision makes them feel humiliated, and various official classifications (such as the standards that distinguish "valuable people" from worthless poor people) humiliate them. Therefore, if benevolent intentions merely reluctantly assist and target helpless beneficiaries, they can only create new patterns of obedience.
3. Law organizes social defense against the "dangerous class" through various means, such as criminalizing poverty conditions through laws on vagrancy. Suppression is only one side of class justice. The other side of class justice is the reinforcement of privileges. When the ruling group gains state protection and uses the authority of rights granted by the state, a dual legal system emerges. The law for the privileged is primarily "public law in nature," manipulated by specialized state institutions, and coordinated with the demands of political and administrative convenience. Its task is control; its characteristic is prescriptive and severe punishment. However, alongside this law for the privileged, we also see the development of another kind of law. This law is centered on rights, it is facilitative, and is primarily "private law in nature." This privileged law protects property rights and confirms the autonomous social arrangements of acts such as property bequests, contract formation, and partnerships. It is relatively free from political interference, implemented by independent courts, and is shaped more by precedent than by legislation. Here, the state is limited to a passive role; it is an arbitrator of private disputes and a maintainer of rules it has not itself created. Thus, paradoxically, the very dynamics of the legal order that confirms social obedience are a major source of the evolution of legal systems that move away from repressive law and toward systems capable of escaping and controlling state power. These dynamics lay the foundation for "the rule of law" that holds the government accountable. In other words, dual law embeds a mechanism for transforming into autonomous law precisely within the structure of repressive law.