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*NOTE: I am writing this paper on Word and pasting it on here as I go along because I am stil not comfortable with using the wiki format. Also, I will make this paper visible to everyone once I am done using my preliminary notes with people's names. I am keeping it private for now as a way to respect the identities of those whose quotes and ideas I am using.
The Law, Our Religion: A Durkheimian Perspective
-- By ChristinaYoun - 10 Feb 2008
What is Law?
Our course of study has focused on two prongs, the first of which is figuring out what “The Law” is. We have looked to some great legal theorists for guidance. While Holmes, Cohen and Frank have offered interesting perspectives on the law and its practice, I will analyze law from sociologist Emile Durkheim’s perspective to show that law is a religion. Law is the worship of a vehicle.
Durkheim on Religion
According to Durkheim, every known society has a religion. He says a religion is any institution whose function is to perpetuate society; it is the society divinized. Society creates religion as a manifestation of its values and morals. Thus, a religion emerges by separating the sacred (transcendental, extraordinary phenomena) and the profane (mundane, everyday activities). Members of society find solidarity through worship of the religion, that is, performing ceremonies that reinforce the belief in and power of the religion. They develop a sense of “us” versus “them.” Religion gives the members something to believe in and rally around. *
Our Class: An Example of Law as Religion
Our first assignment, which asked us to explain what we wanted in coming to law school, revealed a spectrum of perceptions on what “The Law” is and what it can do. On one side of the spectrum, people felt they could “make justice happen” or could “make a difference” by helping others with law. One person wished to promote child advocacy rights after experiencing his parents’ divorce. Another wanted to use law to shape and control his surroundings after he and his family got evicted from their home. On the other side of the spectrum, people said law was a “practical” endeavor that would expand career choices for them. One person was attracted to the “status and respect” that law brings to its practitioners. Another thought law would help him further his interest in economic development. Yet another saw law as a way to provide for his family. One unifying theme in the responses, however, was that not only did everyone want to use the law to accomplish one goal or another, but they also believed that the law had the power to make these goals happen.
By Durkheim’s definition, law is our religion. Law is the transcendental, extraordinary phenomenon that gives us a sense of who we are. One who abides by the law – one who believes in its power and yearns to learn it and how to use it – is one of “us.” While one who disregards the law – one who disrespects the power of law by breaking it and refusing to yield to it – is one of “them.” We worship and celebrate the law by structuring the way we think and act around it: we refrain from generating child pornography, stealing bread from the market, and killing our classmates because they are illegal; we carefully re-read and revise our contracts because they are legally binding. We revere it and seek its guidance and approval: we report our earnings and audit one another; we seek new forums and methods to share media and information in legal ways. We partake in ceremonies to reinforce its supremacy: we go to trial in the Courtroom and defer to its judges and juries.
What Does Law Do?
The second prong of our inquiry has been figuring out what law does for us. According to Durkheim, the deities that the members of society worship together (the transcendental notions of justice, righteousness, fairness, etc. for us) are projections of the power of society. Thus, in perpetuating society, religion propagates the powers that drive society. This has two different, but not mutually exclusive, implications for us. First, Durkheim could mean that law, in generating society, further empowers those who are already in positions of power. Or, Durkheim could mean that law is a vehicle for society to reflect the changing currents in society.
Law as Protector of the Status Quo
Durkheim’s theory provides that our religion exists to preserve the status quo. Since law is the projection of the power of society, those projections are the values held by those who make law (such as legislatures, judiciaries, and interest groups). In effect, the lawmakers’ values become law and the rest of society lives by that law, promulgating preservation of the status quo. Because the rest of society, the devout worshipers, follows the laws, the lawmakers continue to be in power. In “Transcendental Nonsense,” Cohen makes a pertinent point that a judicial decision is a social event, which is a product of “social determinants and an index of social consequences” (843). The decision’s true meaning comes from the social forces, the “human psychology, economics and politics” in play among the lawmakers. In the religion of Law, the lawmakers are the priests who guide us to the right (Law) from wrong (anti-Law).
Law as a Vehicle for Change
Section II
Subsection A
Subsection B
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