THE SOCIOLOGICAL PERSPECTIVE

 ROSCOE POUND, EUGENE EHLRICH , EMILE DURKHEIM (SOCIAL SOLIDARITY AND LAW)

 MAX WEBER (TYPOLOGY OF LAW, THEORY OF LEGITIMATE DOMINATION, CAPITALISM AND LAW)

 KARL MARX (IDEOLOGY AND LEGAL FETISHISM), JÜRGEN HABERMAS (CONCEPT OF MODERN STATE AND LAW)

-[Link] SINGH
ASSISTANT PROFESSOR
DEPT. OF LAW
MAIMS
INTRODUCTION
Sociological Jurisprudence:

The main subject matter of sociology is Society. Sociology is the study of society, human
behaviour and social changes. Jurisprudence is the study of law and legal aspect of things.

The Sociological school of Jurisprudence advocates that the Law and society are related to each
other. This school argues that the law is a social phenomenon because it has a major impact
on society. Sociological school of law focuses on studying the law in practice with relation to the
society. They lay emphasis on actual social conditions and situations which require the help of
the law.

Meaning of Sociological school of Jurisprudence:

The idea of Sociological School is to establish a relation between Law and society. This school
laid more emphasis on the legal perspective of every problem and every change that take place
in society. Law is a social phenomenon and law has some direct or indirect relation to society.
Sociological School of Jurisprudence focuses on balancing the welfare of state and individual.
The characteristics of Sociological school of law
1. Sociological School of Law lays emphasis more on the functional aspect of law rather than its
abstract content.
2. They consider law as a social institution essentially interlinked with other scientists and the
direct impact of the law on society with its formation according to social needs.
3. Sociological School of Law completely neglects positivism i.e., the command of sovereign and
also historical jurisprudence.
4. Sociological jurists describe the perception of the law in different ways like the functional
aspect of law or defining the law in terms of the court’s rulings and decisions with a realistic
approach of law.
5. The sociological jurists have greater concerns when it comes to the functioning and working
of the law rather than the nature of the law. The sociological school also emphasizes that law
can be a means of promoting social change. It can help address social inequalities, protect
marginalized groups, and regulate economic activity. Sociologists view law as both a reflection
of society's values and an instrument for shaping those values.
Reasons for the Emergence of the Sociological School
Laissez-Faire is the most important reason for the creation of the sociological school of
jurisprudence. It refers to the policy of minimum governmental interference when it comes
to dealing with the economy, the society or the individuals. Sociological school emerged
when there was a shift from laissez faire to welfare state.

According to the Britannia dictionary, “Laissez-faire is the policy of minimum governmental

interference in the economic affairs of individuals and society.”
It is a French term which translates to “leave alone” (literally, “let you do”), is that the less
the government is involved in the economy the better off business will be and by extension
society as a whole.

It is due to the increasing importance of the practice of Laissez-Faire that this law rose to
existence. However, due to the development and growth of laissez-faire, there seems to be a
greater relevance and focus on individual growth. The Sociological school came out as a
reaction against the laissez-faire because sociological school advocates the balance between
the welfare of the state and individual interest.

Pragmatists as well as progressives were melioristic in orientation and shared an optimistic

faith in the capacity of the social sciences to help identify justice and the public good, and
the best means to achieve them.
Jurists of the Sociological School of Jurisprudence

Montesquieu (1689-1755): Montesquieu was the French philosopher and he paved the way
of the sociological school of jurisprudence. He was of the view that the legal process is somehow
influenced by the social condition of society.
He also recognized the importance of history as a means for understanding the structure of
society and explained the importance of studying the history of society before formulating the
law for that society. In his book ‘The Spirit of Laws’, he wrote: “law should be determined by the
characteristics of a nation so that they should be in relation to the climate of each country, to
the quality of each soul, to its situation and extent, to the principal occupations of the natives,
whether husbandmen, huntsmen or shepherd, they should have relation to the degree of liberty
which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches,
numbers, commerce, manners, and customs.”

Auguste Comte (1786-1857): He is considered to be the founder of the science of sociology.

But the word “Sociology” was coined by Emmanuel Joseph Sieyes first and was then popularized
by August comte. Comte’s method may be called 'Scientific Positivism'. He pleads for the
application of the scientific method to the science of sociology.

Society is like an organism and it can progress when it is guided by scientific principles. These
principles should be formulated by observation and experience of facts excluding all
metaphysical and other like considerations. The implications of Comte's theory are many. He
Roscoe Pound, Eugene Ehlrich , Emile Durkheim
Eugene Ehrlich (social solidarity and law)
(1862-1922)
According to him, the institutions of marriage, domestic life, inheritance,
possession, contract etc. govern the society through “living law” which
dominates the human life. Ehrlich considered society as a main source of
the law. And by society, he means “association of men”.

By “living law” he meant extra legal controls which regulate social

relations of men.

In his opinion the centre of gravity of legal development in the present

time or the past lies neither in juristic science nor in judicial decisions but
in society itself. His living law is the law which dominates the social life
even though it has not been promulgated in the form of enactment or
Eugene Ehrlich (1862– decision of the courts.
1922) was an influential
Austrian legal scholar He argued that the true law is not always found in written rules but in the
who is best known for his customs, practices and everyday behaviors that govern society. It is a set
contributions to the of social norms and practices that people adopt informally but are
development of nonetheless powerful and influential in regulating behavior. This living
sociological law evolves organically in society, reflecting the values, needs and
as particularly interested in the role of customary law or unwritten norms in society.
ved that many societies rely on customary law, which is formed through social practices and accepted beha
an written law. These norms govern many aspects of people's lives, even in the absence of formal legal sys
ustomary law as a vital component of social order, especially in traditional societies or in situations where
gal structures might be absent or underdeveloped.

Ehrlich's concept of "living law"—the idea that law is shaped by social customs and practices
an just written statutes—has faced several criticisms:

ness: The idea of "living law" lacks clear definition and is difficult to apply systematically.
emphasis on State Law: Ehrlich downplayed the role of formal state law, which remains central in mode
vism: His focus on customary law risks tolerating unjust practices if they are socially accepted.
fying Living Law: It’s challenging to determine what constitutes "living law" in practice, especially when d
ave conflicting norms.
zation of Customary Law: Customary law may perpetuate inequalities or injustices, which Ehrlich’s
oesn't fully address.
enges to Reform: Emphasizing social norms can hinder efforts to challenge or reform unjust laws or pract
Positivism Conflict: Ehrlich's views clash with legal positivism, which treats law as a set of
d rules created by authority.
of Focus on Rights and Justice: His focus on social order may overlook the need to protect
l rights and ensure justice. Despite these criticisms, Ehrlich’s work remains significant in the field
ogical jurisprudence.
Émile Durkheim Social Solidarity
(1858–1917) Social solidarity refers to the social bonds that connect individuals in a
society. Durkheim identified two types of social solidarity:
mechanical solidarity and organic solidarity, each corresponding
to different stages of societal development.

1. Mechanical Solidarity
This type of solidarity is found in traditional, small-scale societies,
where people share common values, beliefs, and ways of life. The
division of labor is simple, and people perform similar tasks (e.g.,
farming or hunting).

His work has had a In these societies, social cohesion is based on the resemblance
significant between individuals. The stronger the similarity between individuals,
influence on the the more they are bound together.
study of society,
culture, and law.
The law in societies characterized by mechanical solidarity tends to be
Durkheim focused
on understanding
repressive—focused on punishment and deterrence. Violations of
the structures and social norms are viewed as threats to the collective unity, so law
functions of enforcement tends to be punitive to reassert societal cohesion.
societies,
particularly how
2. Organic Solidarity

This type of solidarity emerges in modern, complex societies, where the division of labor
becomes more pronounced. As societies become more industrialized and urbanized, individuals
begin to perform specialized tasks that require interdependence.

In these societies, social cohesion is not based on similarity but on interdependence—

individuals rely on one another to fulfill specialized roles (e.g., a teacher depends on a baker for
food, while the baker depends on the teacher for education).

The law in societies with organic solidarity is restitutory—it focuses on restoring relationships
and resolving conflicts rather than punishing offenders. The goal is to maintain balance and
cooperation between the different parts of society.
Law as a Reflection of the Collective Conscience
Durkheim believed that law reflects the collective conscience, the shared values, beliefs and
norms that hold a society together. The law mirrors the moral standards of the society, and as
society evolves, so too does its law.

In societies with mechanical solidarity, the collective conscience is more uniform, and the law
tends to reflect strict moral codes.
In societies with organic solidarity, the collective conscience is more diverse, and the law
becomes more focused on regulating behavior and resolving conflicts rather than enforcing a
shared set of values.

Anomie and the Breakdown of Social Solidarity

Durkheim also discussed the concept of anomie, which refers to a state of normlessness or
disintegration of social norms. Anomie occurs when there is a breakdown in the collective
conscience, often due to rapid social change or a shift in the division of labor. In such cases,
individuals feel disconnected from the moral values of society, leading to feelings of isolation
and confusion about societal expectations.

Anomie can contribute to social problems such as crime, suicide and deviance because
individuals no longer know the rules or norms they are expected to follow.

Durkheim believed that law can play a role in addressing anomie by helping to restore order,
Roscoe Pound
(1870–1964)
Pound’s legal philosophy was centered around functional aspect of
law which in other words, meant ‘law in action’.

He pointed out that law is more than a set of abstract rules. The real
function of law is balancing of conflicting interests by satisfying
maximum wants with minimum friction.
The main function of law is to satisfy the maximum number of
people. Not only this function but also to reconcile the conflict in the
interest of individuals and society.

He preferred to describe sociological jurisprudence as experimental

jurisprudence and focused on application of law to social realities of
Roscoe Pound (1870– life.
1964) was an influential
American legal scholar
and the Dean of
Harvard Law School
from 1916 to 1936. He is
best known for his work
in sociological
jurisprudence and his
Theory of Social Engineering
Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the
Engineers. Engineers are required to use their engineering skill to manufacture new products.
Similarly, social engineers are required to build that type of structure in the society which
provides maximum happiness and minimum friction.

Social Engineering is balancing the conflicting interest of Individual and the state with the help
of law. Law is a body of knowledge with the help of law the large part of Social engineering is
carried on.
Law is used to solve the conflicting interest and problems in society. He mentioned that
everybody has its own individual interest and considered it supreme over all other interest. The
objective of the law is to create a balance between the interests of the people.
For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and expression’ but
on the other side, State put some restriction on this right. And when the conflict arises between
Individual right and State’s restriction, then the law comes to play its part and solve the conflict
between the interests. He describes that there are various kinds of interests in society and the
main task of law is to make all possible efforts to avoid conflict between them.

Thus, courts, legislature, administrators and jurists must work with a plan and make efforts to
balance these three categories: Public, Private and Social Interests.
Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the
overlapping of the interests, he put boundaries and divide the kinds of interests.

Individual/ Private Interest: These are claims or demands involved from the standpoint of
the individual life which consists of interest of personality, interest in domestic relations and
interest of substance. The individual’s interest is known as private interest like physical
integrity, reputation, etc. and they’re protected by the law of crime, torts and Contract Law,
etc. Domestic relations of a person such as a husband and a wife, parents and children, etc.
are protected by Personal Law. The interests of the property, succession, contractual relations,
testamentary relations, etc. are protected by Property Laws.

Public Interest: These are the claims or desires asserted by the individual from the
standpoint of political life which means every individual in a society has a responsibility
towards each other and to make the use of things which are open to public use. Main public
interest is interest in the preservation of States. Administration of trust, charitable contracts,
protection of the environment, regulation of public employment, etc. are being protected by
the States.

Social Interest: These are the claims or demands in terms of social life which means to fulfil
all the needs of society as a whole for the proper functioning and maintenance of it. Interest in
the preservation of general peace, health, the security of transaction’s, preserving social
institutions like religion, politics, economic.
Interest in preservation of peace and health. Preserving social institutions of religion, politics
and economics. Preserving certain prohibiting acts like prostitution, gambling, etc.
Conservation of social and natural resources. General progress including economic, political
and cultural areas. E.g.- Freedom of Trade and Commerce, Speech and Expression, etc. Interest
to make
Jural a political,
Postulates byphysical, social and economic life to promote personality.
Roscoe Pound

According to Roscoe Pound, every society has certain basic assumptions for proper order and
balance in society. These assumptions are implied and not in expressed form and are called as
Jural Postulates of the legal system of that society. These assumptions of man related to the
reference for what they want from the law or legal system or we can say that it is the
expectation of a man from the law. He has mentioned five kinds of jural postulates:
1. In a civilized society, man must be able to assume that others will not commit any intentional
aggression on him.
2. In a civilized society, man must be able to assume that they must control for beneficial
purposes. E.g.- control on whatever they discover or create by their own labour.
3. In a civilized society, man must be able to assume that those with whom they deal as a
member of societies will act in good faith.
4. In a civilized society, man must be able to assume that the people will act with due care and
will not cast unreasonable risks of injury on others.
5. In a civilized society, man must be able to assume that certain people must restrain from
doing harmful acts under their employment and agencies which are otherwise harmless to
them.

So, these Jural Postulates are a sort of ideal standards which law should pursue in society for
civilized life and with the changes in society, the jural postulates may emerge or originate in
society.

Criminal: An interest in protection from any intentional aggression.

For Example, Assault, Wrongful restraint, Battery, etc.

Law of Patent: An interest in securing his own created property by his own labour and hard
work. E.g., agricultural land, any music or artistic things.

Contract: The interest in making the contract and getting of reasonable remedy or
compensation when his right violates.

Torts: Protection against Defamation and unreasonable injury caused by the negligent act of
another person.
Strict Liability: Similarly, in case Ryland Vs. Fletcher Protection of our interest if the injury
caused by the things of another person.
It is the duty of other people to keep his/her things with his/her boundary and should look
Conclusion

It is to be stated that howsoever divergent the views of various sociological

jurists may appear. they have one common point that the law must be studied in
relation to society This view has a great impact on modern legal thought. But it
should not be taken to mean that other methods have completely ceased to exist
Still there are advocates of natural law thought with a 'variable content’.

There are Catholic jurists who plead for maintaining a close relationship between
law and morals. But these approaches are. in many respects, basically different
from earlier approaches of type on the subject and are influenced by the
sociological approach.
Max Weber
(Typology of law, theory
of legitimate domination,
capitalism and law)
Weber’s Conception of Law

Max Weber viewed law as a system of norms that regulates the behavior of individuals within
a society. However, his approach was distinct from other thinkers in that he focused on the
social and historical context in which law emerged and operated. For Weber, the evolution of
law was linked to the development of rationalization in Western society, which involved the
growth of bureaucratic structures and legal-rational authority.
Weber distinguished between various forms of authority and legitimacy, which are crucial for
understanding his ideas about law.

Typology of law: Weber identified traditional, charismatic, and legal-rational types of law, with
modern societies favoring legal-rational law.

Theory of legitimate domination: Weber argued that authority can be legitimate in three
forms traditional, charismatic, and legal-rational and that modern states predominantly operate
under legal-rational authority.

Capitalism and law: Weber argued that the development of capitalism in the West was
facilitated by legal-rational, legal systems and certain Protestant values, which helped establish a
legal framework necessary for economic activity.
[Link] of Law
Weber outlined a typology of legal systems in his work, classifying law according to how it is
organized and implemented in different societies. He distinguished three types of legal
systems:-

Traditional Law: This type of law is based on customs and traditions. It is often informal and
passed down through generations. Traditional law is deeply rooted in the social and cultural
practices of a society.

Charismatic Law: This form of law arises from the personal authority of a leader, often
charismatic figures who create laws or enforce them based on their perceived special qualities.
The legitimacy of such laws is tied to the personal qualities of the leader and the belief in their
unique mission.

Legal-Rational Law: The most modern and formalized type of law, characterized by the
bureaucratic structures in which rules are codified, written down and applied in a systematic
manner. Legitimacy is based on the belief in the validity of the law and its rational, impersonal
nature. In such systems, laws are applied uniformly and follow a bureaucratic or
institutionalized framework, often through a system of courts and regulations.
2. Theory of Legitimate Domination
Weber’s theory of legitimate domination (also referred to as "authority") deals with the nature
of power and how authority is justified within society. He explored how different types of legal
systems and authority emerge and sustain themselves over time. Legitimate domination refers
to the right to rule and command obedience, and Weber identified three types:
He identified three primary types of legitimate authority:

Traditional Authority: Based on established customs, traditions, and long-standing practices.

The legitimacy of the law is based on the belief that it has always been that way. People obey the
ruler or authority because it has always been this way (e.g., monarchies, tribal systems).

Charismatic Authority: Based on the personal qualities of a leader, such as exceptional

bravery, vision, or talent. People follow the leader because they believe in their personal charisma
or extraordinary abilities (e.g., revolutionary leaders or religious figures like Gandhi or Jesus). The
legitimacy of their laws comes from the followers' belief in the leader’s vision.

Legal-Rational Authority: Based on established laws and rules that are applied universally.
Authority is not vested in a person but in legal norms and bureaucratic systems (e.g., modern
states, corporations, or public institutions).
Weber argued that, in modern societies, legal-rational authority is the dominant form of
legitimate domination, where the law itself, not an individual or tradition, confers authority.
3. Capitalism and Law
Weber’s analysis of capitalism and law primarily focuses on the relationship between the legal
system and the rise of modern capitalist economies. He argued that the development of legal-
rational systems was crucial to the rise of capitalism, particularly in the Western world.

Legal Frameworks for Capitalism: Weber argued that the development of capitalism in the
West was closely tied to the evolution of legal-rational systems, which provided the necessary
framework for economic activity. Capitalism thrives in a setting where laws are predictable,
enforceable, and protect private property rights, contracts, and the rule of law.

Protestant Ethic and the Spirit of Capitalism: In his famous work, The Protestant Ethic and
the Spirit of Capitalism, Weber linked the development of capitalism to certain Protestant
values, particularly those stemming from Calvinism. The Protestant work ethic, which
emphasized hard work, thrift, and individual responsibility, helped foster a legal and economic
environment conducive to capitalist growth. Weber believed that these values, alongside the
development of rational legal systems, encouraged a focus on economic success and a system
that could support it.

Bureaucracy and Capitalism: For Weber, the rise of bureaucracy was also essential to the
functioning of modern capitalism. Bureaucratic organizations are structured in ways that
promote efficiency, predictability, and impersonal rules, all of which align with the needs of a
Weber’s Perspective on the Weber on Law and Social Change
Rationalization of Law
Weber believed that the rationalization of Weber also recognized that law plays a
law was a defining feature of modern crucial role in shaping social change.
society.
He was particularly concerned with how
This idea of rationalization refers to the legal systems help maintain order but
growing reliance on rational legal can also reinforce or challenge social
systems (codified laws, bureaucratic hierarchies.
administration, and legal procedures) that
replace traditional or charismatic forms of In his work, Weber examined how law
authority. can serve the interests of various social
groups, often reflecting the power
In traditional societies, legal systems structures of the time.
were often arbitrary and based on customs
or the whims of rulers. For example, Weber analyzed how the
law can serve capitalist interests or
In modern, rational-legal societies, law is how legal systems are used to maintain
systematized, predictable, and social order in the face of class
impersonal. This makes it easier for legal struggles. He also explored the idea that
systems to handle complex economic, legal systems can sometimes be a tool
social, and political systems, but it also for social transformation, as seen in
Weber's Focus on Bureaucracy and the Legal System

Weber’s emphasis on bureaucracy is important in understanding his views on the law.

Bureaucratic administration which is impersonal, rule-based, and hierarchical becomes a key

feature of modern legal systems.

He saw bureaucratic legal systems as enabling the rational organization of society, which
was crucial for both the functioning of capitalism and the orderly administration of law.

Legal bureaucracy is characterized by specialized legal professionals (judges, lawyers,

etc.) who apply standardized laws and legal norms without personal bias. This creates a legal
system where rules are applied uniformly, regardless of personal or political factors.

Weber saw this as a necessary feature of modern legal systems, as it ensures that legal
decisions are made according to rational rules and not personal preferences or arbitrary power.
Weber and the Development of Capitalism

Weber’s work is also deeply tied to his analysis of capitalism. He famously explored the
relationship between the Protestant Ethic and the development of modern capitalism in his
work The Protestant Ethic and the Spirit of Capitalism (1905).
Here, Weber suggested that rational legal systems (what he calls "legal-rational authority")
are essential for the functioning of capitalism.

In capitalist societies, predictable, impersonal legal systems allow for the efficient
functioning of markets. Legal contracts, property rights and rules governing economic
transactions all rely on rational, codified laws.

Capitalism, Weber argued, requires a legal system that can regulate economic transactions
and disputes in a predictable way. This is why bureaucratic legal structures are seen as
essential for modern capitalist economies.
Criticisms

1. Typology of Law:

Over-Simplification: Weber’s division of law into traditional, charismatic, and legal-rational types oversimplifies
the complexity of legal systems, which often combine elements from multiple categories.
Neglect of Informal Systems: Weber focuses on formal legal structures, neglecting informal legal systems that
play a significant role, particularly in non-Western societies.

2. Theory of Legitimate Domination:

Overemphasis on Legitimacy: Critics argue Weber focuses too much on legitimacy and doesn't address how
power is maintained through coercion or violence.
Underemphasis on Class and Economic Structures: Weber’s framework overlooks the material basis of
power, such as class relations, in maintaining domination.
Exclusion of Gender and Race: Weber’s theory largely ignores how gender and race affect authority and
domination.

3. Capitalism and Law:

Causality and Economic Determinism: Weber’s focus on the Protestant ethic as the cause of capitalism is
critiqued for neglecting material economic factors that contributed to capitalism's rise.
Idealism: His analysis of capitalism is criticized for being overly idealistic, focusing on values like thrift rather
than economic structures and exploitation.
Eurocentrism: His theory doesn’t sufficiently explain the rise of capitalism outside Western Europe, ignoring the
global context.
4. Rationalization and Bureaucracy:

Dehumanization: Weber’s view of bureaucracy as an "iron cage" overlooks its positive aspects,
such as efficiency and fairness.
Unintended Consequences: Bureaucracy can become inefficient and rigid over time, which
Weber didn’t fully account for.

Alternative Organizational Forms: Critics argue Weber neglects other organizational structures
that may be more adaptive than bureaucracy.
In summary, Weber’s theories are criticized for oversimplifying complex social phenomena,
neglecting key power dynamics (like class, gender, and race), and focusing too much on cultural
factors while underestimating material conditions in the development of capitalism and law.

In conclusion, Weber’s theories are criticized for oversimplifying complex social phenomena,
neglecting key power dynamics (like class, gender, and race), and focusing too much on cultural
factors while underestimating material conditions in the development of capitalism and law.
Karl Marx
(ideology and legal
fetishism)
Karl Marx is renowned for his profound critiques of capitalism and his
elucidation of historical materialism. While Marx did not explicitly formulate a
comprehensive theory of law, his writings laid the groundwork for what has
come to be known as Marxist Legal Philosophy. This philosophy delves into the
nature of law within the context of class struggle, economic relations, and
social structures. By critiquing the role of law in maintaining and perpetuating
capitalist dominance, Marxist Legal Philosophy has significantly contributed to
the development of modern jurisprudence.
Karl Marx's ideology, particularly his concept of "legal fetishism," critiques how law in capitalist
societies can appear neutral and universal but actually serves to legitimize and perpetuate
class inequalities by masking the underlying economic structures of power.

Karl Marx's ideology and legal fetishism are key concepts in his critique of law and the
capitalist system.

Legal fetishism refers to the process by which law and legal institutions are viewed as
autonomous or separate from the underlying material social relations that they are designed
to regulate.

Marx borrowed the term “fetishism” from his critique of commodity fetishism (where
commodities are treated as having inherent value, independent of the labor that created them).
Similarly, legal fetishism involves viewing laws as having an independent, almost mystical,
power that exists apart from the social conditions and power relations that shape them.

The Fetishization of Law: Marxists argue that laws are not neutral or objective but rather are
shaped by the economic structure of society. Legal systems are seen as reflecting and
maintaining the power dynamics that favor the ruling class. However, through legal fetishism,
people come to view the law as an impartial and objective force, which conceals the true power
dynamics at play.
Example: In capitalist societies, laws are often presented as being universally applicable and
False Consciousness: A key aspect of Marx’s theory of ideology is the concept of false
consciousness, where the working class accepts and internalizes ideologies that are not in their
best interest but rather in favor of the ruling class. For example, laws may seem to be neutral or
just but actually protect the interests of capitalists, not workers.

Class and Ideology: Marx argued that the ruling class (bourgeoisie) creates and controls the
Ideology:ideologies
dominant Marx believed that the
in society, law, along
including with
laws, other societal
morality, institutions
and culture, is shaped
which help by thetheir
perpetuate
ruling classinterests.
economic to maintainThese ideologies obscure the true nature of social relationships, particularly
their
the economic interests.
exploitation of workers (proletariat).
The working class is often misled by ideologies that make them accept a system that benefits the
capitalists.

Legal Fetishism: The law is often viewed as independent and objective, but in reality, it serves
the interests of the
capitalist class and disguises the underlying social relations of exploitation.
In essence, Marx’s critique of ideology and legal fetishism reveals how law functions not as a
neutral set of rules
but as a tool of domination and control, upholding the interests of the ruling class and
perpetuating
the capitalist system.
Jürgen
Habermas
(concept of
modern state
and law)
Jürgen Habermas, a German philosopher and sociologist, is widely known for his work on the concept of
modernity, democracy, and the relationship between state and law, particularly in the context of deliberative
democracy. His ideas on the modern state and law are largely shaped by his theory of communicative action
and his critique of traditional political theory.

1. The Concept of the Modern State

Habermas is concerned with how the modern state can be understood within the framework of democracy,
rationality, and legitimacy. The modern state for Habermas is not merely a system of coercive power but a
political system grounded in the rational consensus of its citizens.
Legitimacy through Public Reasoning: For Habermas, the legitimacy of the modern state comes from
public deliberation. The state must be based on principles that can be justified to all citizens, and its laws
must be rationally communicable in the public sphere.
The Role of the Public Sphere: Habermas highlights the importance of the public sphere as a space where
individuals can come together to engage in rational debate and discuss matters of common concern. The
modern state is legitimate only if it allows citizens to participate in such discourse.

2. Law and the Rule of Law

Habermas views law not just as a set of rules but as an institution that functions to mediate relations between
citizens, the state, and society. In this view, law plays an essential role in creating a framework for
cooperation and social integration.
The Law as a Medium of Communication: Habermas sees law as a tool for enabling communication and
dialogue among citizens. It provides the framework in which social norms and values can be negotiated and
enforced.
Formal Proceduralism: He argues that law should be founded on procedures that ensure fairness and
3. Deliberative Democracy and the Role of Communication
One of Habermas's major contributions to political theory is his theory of deliberative
democracy. He emphasizes that in a truly democratic society, the legitimacy of laws and
policies should come from the public's deliberation, not from the mere exercise of power or
representative institutions.
Communicative Action: Habermas introduces the concept of communicative action, where
individuals come together in a discourse that is free from coercion and aimed at reaching mutual
understanding. Laws should be the result of such a process where everyone is free to participate
and where communication is guided by the goal of mutual understanding rather than strategic
advantage.
Democratic Legitimacy: Habermas believes that the modern state and its legal system must
be structured in such a way that the law reflects the will of the people, not through top-down
commands but through inclusive, rational deliberation in public discourse.

4. The Intersection of Law and Morality

Habermas also addresses the relationship between law and morality. He argues that laws should
not simply reflect the coercive power of the state but should align with moral principles that can
be rationally justified in public discourse.
Procedural Justice: Habermas's theory of justice is procedural. Justice does not consist in the
content of specific laws, but in the fairness of the procedures by which laws are made and
applied. Law must be based on principles that could be justified in a public, rational discourse.
5. Post-Secularism and the Role of Religion
In his later work, Habermas addresses the issue of religion and its place in the modern state. He
argues for a post-secular society, in which religious traditions and secular norms can coexist
and influence the public discourse, provided that religious arguments are presented in a way
that can be translated into secular, rational terms.

Religious Contributions to Public Reasoning: Habermas believes that religious citizens can
contribute to democratic discourse, but they must translate their beliefs into a language that
can be understood by all, irrespective of religious affiliation. This aligns with his broader
commitment to the idea of a public reason that is inclusive and communicative.