Sociology of law is the principal matter that allows getting an approach to the understanding of the construction of the Human Rights. Durkheim conceived law as a manifestation of the specific culture of a society. Weber, on the other hand, saw law as manifestation of a social order, intended to guide or direct the actions of the individuals.
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The Conception of Human Rights From the Perspective of the Sociology of Law
Sociology of law is the principal matter that allows getting an approach to the understanding of the construction of the Human Rights. Durkheim conceived law as a manifestation of the specific culture of a society. Weber, on the other hand, saw law as manifestation of a social order, intended to guide or direct the actions of the individuals.
Sociology of law is the principal matter that allows getting an approach to the understanding of the construction of the Human Rights. Durkheim conceived law as a manifestation of the specific culture of a society. Weber, on the other hand, saw law as manifestation of a social order, intended to guide or direct the actions of the individuals.
POLTICA Y SOCIEDAD RUBN SANCHEZ DAVID ELABORADO POR DIEGO FERNANDO AGUILERA SNCHEZ ABRIL 12 DE 2012 The conception of Human Rights from the perspective of the sociology of law For the purpose of this writing the sociology of law is the principal matter that allows getting an approach to the understanding of the construction of the Human Rights. Two are the political theorist who has relevant propositions related to the subject previously announced, namely, mile Durkheim and Max Weber Both authors present notable differences in their respective approach. Durkheim on the one hand conceived law as a manifestation of the specific culture of a society and as such it presents a proportional relation between the development of law and social development 1 . Resulting from a social construction, these rules holds the spirit of the values established as commonly shared by the members of the society. Weber, on the other hand, saw law as manifestation of a social order, intended to guide or direct the actions of the individuals. Derived from this, emerge the notion of validity, dependent on the obligatory or exemplary character the law posses on the population. However, in order to get a connection between this propositions and the development of the Human
1 See Schluchter, The Sociology of Law as an Empirical Theory of Validity, p. 547. Rights is important to clarify the construction of the coercive norms in each theory. Rules of conduct and normative rules for action These are the general categories in which the coercive legal order is established in Durkheims and Webers work respectively. In Durkheims theory the range, intensity and solidity of the common conscience of a society are [] closely connected with a consciousness of penal law 2 . Among more is shared an idea in a society, more it can regulate the conduct of the individuals who compose it. This is why the penal law is composed with the rules derived from the most solid and shared ideas of the society. However, no matter how much logical the behaviour of the citizens can be, its necessary the presence of a coercive apparatus, that guarantees the performance of the law, in order to establish a social order. This is how the repressive laws, exclusive of the penal law, are created. With regard to Webers exposition, the society counts with a legal order, composed by rules for action, or more precisely, a sum of legal propositions that determine certain consequences for the
2 See Schluchter, The Sociology of Law as an Empirical Theory of Validity, p. 539. fulfilment of a specific action. Law has the function to secure the observance of rights, defined as the chance factually guaranteed to a person by virtue of the legal order of invoking in favour of his ideal or material interests the aid of a coercive apparatus which is in special readiness for this purpose 3 . Its within the framework of these proposals where is appropriate to develop a perspective about Human Rights, pertinent to be applied in the case of the European Court of Human Rights (ECtHR). The achievement of Human Rights Although both theoretical constructions are different and are based on dissimilar conceptions, an observation make possible to note some common starting points, namely, an evolution of rights generated by economic development and the perception of the human race and its individuals. First of all, Durkheim sees an evolution of the repressive law determined by social development and the increase of the division of labour. From this, its generated a radical change in the values of the society, as expressed by Schluchter: In the place of the cult of the group there arises the cult of the individual. Thereby the individual rights gain more importance, over the group rights. In Webers theory the development of the coercive legal apparatus and the monopolization of it by the State is correlated with the development of the market economy. On the other aspect, a link between the two theories is more evident in the conception of the role of the individual in the legal system. To Durkheim the defense and overcome of the individual rights doesnt pursue the protection of the particular and specific conditions of every citizen, but rather the ideal of the human being, the individual [...], the humanity in him 4 . Weber for his part, adopting the
3 See Schluchter, The Sociology of Law as an Empirical Theory of Validity, p. 545. 4 See Schluchter, The Sociology of Law as an Empirical Theory of Validity, p. 541-542. Kants insight, establishes that persons rights shouldnt be diminished by the pre-eminence of the interest of the group, since it derives in the loss of his dignity. Talk about Durkheims and Webers work on Sociology of law Development of coercive rules. Human Rights in each theory. Relation with the behaviour of the European Court.