The sociology of law became clearly established as an academic field of learning and empirical research after the Second World War. After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of , for instance, law is conceived as an essential mechanism of social control. In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged. Critical sociologists, developed a perspective of law as an instrument of power. However, other theorists in the sociology of law, such as , argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well. Still other scholars, most notably the American sociologist , developed a resolutely scientific theory of law on the basis of a paradigm of . Equally broad in orientation, but again different, is the theory of the German sociologist , who presents law or "the legal system" as one of the ten (see ) of society.
On the other hand, adoption of a pragmatist theory offers the ideal of a system rooted in experience and the experimental method. As opposed to the overly rationalistic and insular picture of legal decision-making offered by the classical legal theorist, the legal pragmatist argues for a more empirical jurisprudence. The normative argument, in outline, is that a jurisprudential theory rooted in sensitivity to context, a theory that functions without a belief in false foundations, one that is judged along explicitly instrumental criteria and that also acknowledges the inevitability of perspective, is better suited to bring about justice in a complex and unpredictable world than a theory that rests upon untested essentialistic assumptions and a non-experimental and universalistic view of reason.
The Emergency Medical Treatment and Active Labour Act of 1986 (EMTALA) was enacted to ensure access to health screening for all people who present regardless of their ability to pay. The number of people seeking and requiring medical attention without insurance or ability to pay is increasing, causing a shift in healthcare delivery, due to legal mandate to provide care for all. On any given night in a busy Emergency Room, the ‘regulars’, drug seekers and pungent homeless can be found, these individuals still deserve dignity and care, regardless of a nurse’s personal feelings or beliefs. System abuse and limited resources influence nurses’ perspective on ethical care. People in a society have a right to healthcare, but policy makers appear to disregard the ability of resource limited health systems to provide that care, potentially to the detriment of others. As a result there has been significant downsizing, and closures of care centres.
Finally, the legal pragmatist adopts a stance that embraces the problem of perspective. Perspectivalism entails a suspicion of broad generalities and an acknowledgment of eclectic manners of description. As opposed to legal formalism, which "holds that determinate meanings exist in legal texts which may be discerned by reason and that objective, immutable principles simultaneously inform and transcend the practice of applying rules," perspectivism emphasizes that all is messy, open-ended, and subject to revision in light of another perspective or further information (Shutkin 1993, p. 66). The acknowledgment of perspective entails that an overly deferential stance towards precedent and previously endorsed analogies could be unfairly restrictive towards new and possibly more inclusive descriptions.
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As can be seen from the above, legal pragmatism offers a significant alternative to more traditional views of the legal domain. In fact, Stuart Scheingold argues that this lack of awareness of conflicting perspectives is a pervasive quality of traditional legal thought. As he puts it "Law professors and lawyers do not believe that they are either encumbered or enlightened by a special view of the world. They simply feel that their legal training has taught them to think logically. In a complex world, they have the intellectual tools to strip a problem, any problem, down to its essentials (Scheingold 1974, p. 161)." But if such an assumption is itself just one perspective, and one that obviously would distort any appreciation of other alternative perspectives, such ignorance of their own perspective would be an important vice to identify.
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THE RELATIONSHIP BETWEEN LAW & JUSTICE: A PHILOSOPHICAL PERSPECTIVE I INTRODUCTION A significant theme that has occupied the terrain of legal theory is the relationship between law and justice,1 specifically the tension between formal legal processes and 'rules of law' and the achievement of substantively 'just' outcomes in individual cases. Law and justice are not synonymous. 'Justice is a fundamental value which monitors the scope and content of the law.'2 It functions as a catalyst by which laws are enacted, amended, or abolished.3 The concept of justice is one of the most prominent theoretical notions in jurisprudence and is a regular feature in the common discourse about public life.4 It is a concept that is readily understood, especially in the context of its negation, 'injustice'. Justice is a fundamental ethical concept, and is one that can be ascribed in situations involving consciousness, rationality and moral sense.5 Law, on the other hand, is seen as an instrument of achieving justice. Commentators from Plato to Derrida have called law to account in the name of justice, to ask that law provide a language for justice, and demand that it promote, insofar as possible, the attainment of a just society.6 This essay will focus on the relationship between law and justice. It will explore the different philosophical perspectives that have developed throughout the history of legal theory regarding what is meant by the term justice and its relationship with law, and will reflect on a modern interpretation of the relationship between the two. II NATURAL LAW, FORMALISM AND THE 'RULE OF LAW' One of the fundamental tenets in which scholars have examined the relationship between law and justice is the theory of natural law, primarily examined by philosophers such as Aristotle and Saint Thomas Aquinas.7 Aristotle proposed that the meaning of justice is based upon the premise that a just law will allow citizens to fulfil their potential in society.8 He distinguished between distributive and corrective justice and believed that distributive justice should aim to achieve proportionality, while corrective justice should correct unfairness and restore equality.
is a concept developed by legal sociologists and social anthropologists "to describe multiple layers of law, usually with different sources of legitimacy, that exist within a single state or society". It is also defined "as a situation in which two or more legal systems coexist in the same social field". Legal pluralists define law broadly to include not only the system of courts and judges backed by the coercive power of the state, but also the "non-legal forms of normative ordering". Legal pluralism consists of many different methodological approaches and as a concept, it embraces "diverse and often contested perspectives on law, ranging from the recognition of different legal orders within the nation-state, to a more far reaching and open-ended concept of law that does not necessarily depend on state recognition for validity. This latter concept of law may come into being whenever two or more legal systems exist in the same social field".
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Our time has been experiencing the most intense questioning of the capitalist global domination of the last fifty years. In this perspective, debates about the difficult relations between law and violence are retaken in order to ground a new nómos, which seems to materialise itself only through radical changes, able to deconstruct the whole Western political-juridical tradition. Is law just a form of violence? How to construct a knowledge of the juridical normativity that does not reduce itself to the mere facticity of power? Can political exception be compatible with legal norms? Which is the meaning of the democratic system, understood as constituted violence, in scenarios where violent popular constituent practices bloom? How can we criticize the action of economic violence over juridical institutions? Is it possible to think and to live a nonviolent law? Such questions are discussed in the seven essays of this book based upon the ideas of Hans Kelsen and Carl Schmitt, authors of Philosophy of Law who, despite having been on opposite sides in the struggle for the order during pre-nazi Germany, knew how to visualize the original anomy of violence that only law can challenge.