Law and Social Theory: Normativity, Coercion, and Exchange Prof. Vik Kanwar

Spring Semester 2015 Course Description

In this class we will engage with fundamental questions of legal and political theory, and do so at a

certain level of abstraction that taps into the best of classic and contemporary social theory. We will

look at two aspects of law—normativity and coercion (and to a lesser extent a third element we can call

“exchange”)—and seen how various theorists treat these topics.

Hobbes claimed we have been able to exit the state of nature (unsociability or disorder) by creating a

modern state which monopolizes violence and enforces a civil peace. Hobbes presupposes that before

law, society was chaotic; law raises humanity from its animal existence. Modern sociologists and

anthropologists would say this description is incomplete at best. Here, we will look beyond foundational

myths of the state and bring into view continual negotiations of violence and morality in defining law

and settling legal disputes. This course introduces law students to the main traditions of social theory,

focusing particularly on how social thinkers understand law and legal institutions. Though case studies

will span the globe, we will read a largely western canon of writers (albeit not the ones taught in most

courses on jurisprudence and legal philosophy): Maine, Marx, Freud, Weber, Durkheim, Elias, Foucault,

Bourdieu, Habermas, Luhmann, Ellickson, and Unger, all of whom track the continuing emergence of

modern society through the interplay of norms and force. These sociological understandings can be

supplemented by anthropological theories of Boas, Turner, Cohn, Geertz, Comaroff, and Scott, whose

works track the emergence of forms of “lawfulness” present in state and non-state entities as, among

other things, the codification of manners, forms of play, theatrical performance, the work of rumors,

formalization of magic, or channelization of private wars. Through lectures and class discussions we will

explore how these thinkers approached law’s social forms and functions; its relationship to other social

institutions, its underlying ideals, and its operative controls. The course is organized around a main

theme of law-like authority emerging out of “problems of order and meaning,” which will in turn serve

to introduce the main sociological theories of law and legal change, modernity and postmodernity, the

rule of law and disciplinary society, moral authority, and legal pluralism; cultural identity; conflict

management; third party roles in cross-cultural conflict. While we will focus primarily on the emergence

or failure of the emergence of state authority, specific illustrations of the dynamics of norms and force

may range from disputes and challenges arising in TV Westerns, civil wars, Balinese cock fights, cricket

matches, American supermarkets, and Indian auto accidents. The course does not presuppose prior

knowledge of sociology or social theory.

We will explore, through myriad disciplines, three answers to the Hobbesian question: “How can one

establish a society in which force and fraud are not routinely used in satisfying wants?”: normative,

coercive, and exchange. The contribution of Leviathan to political science and jurisprudence has been

incalculable. Here we will revisit the story of the “state of nature” through what the modern social

sciences tell us: sociology, history, archaeology, economics, anthropology, international relations, and

even comparative mythology. (Keeping in mind that among social sciences, law actually preceded non-

law approaches, and that the founders of various social sciences—Marx, Durkheim, Smith, Morgenthau,

Maine, Weber—modeled theories on legal concepts, or used legal training as a point of departure. We

will start with the model proposed by Hobbes, an think of ourselves as skeptical editors, trying to help

Hobbes come up with a thicker, more complete theory without trashing his model altogether. Here are

some of the paths we can take, setting up each class session based on a mode of inquiry. (See topic list

below).

Topics for Class Sessions are Based on Modes of Inquiry:

(1) Taking Hobbes as a Starting Point. What is the importance of the Leviathan Metaphor?

Introducing three issues: Normativity, Coercion and Exchange.

(2) Working backward, or looking around the world, and seeing if there is anything actually

resembling the “state of nature” and see if the Leviathan metaphor works in practice. History

and anthropology could help us here. (“Primitive Law”: State Formation: Primordial, Mythic and

Evolutionary Accounts)

(3) Raising questions about the incomplete monopolization of force by the state, and the continued

existence of plural orders, whether alternative legal systems or elaborate criminal organizations.

(4) Questioning the role of fear and self-interest at the core of the model, and see if alternative

motivations and mechanisms (sympathy, commerce, morals, evolving customs and manners)

account for the creation of social and legal order.

(5) Raising questions based on alternative models of the “state of nature” For example, instead of

presupposing that before law, society was chaotic, we might look at tradition – associated with

Rousseau and the early Marx – presupposing that people lived in a harmonious self-organized

state, and the imposition of law actually creates divisions between people that had not existed

in a state of nature.

(6) Exploring those models that have not been proposed in political theory, but in other traditions

of thought, such as through comparative mythology and religion. What claims and overlaps do

we encounter here?

(7) Looking at ways normativity and coercion work in everyday life, law and order actually work,

and see if there is anything that an out the implications of the theory that continue to bear fruit.

For example, could political scientists, game theorists, and economists add to the description of

how relationships between “protectors” and clients” are established and how these entities

continue to rely upon each other.

(8) Looking at the reenactment of the establishment of sovereignty in times of “emergency” and

“exception.”

(9) Looking at the common claim that the international sphere remains an anarchical state of

nature, and other claims refuting this.

(10) Mapping three concepts and how are they related in each of the above accounts: Normativity,

Coercion and Exchange.

Requirements

20% Class Presentation: 20 minute presentation on one of the core topics or readings listed below.

30% Book Review: A critical essay based on a reading of a book or a set of chapters in a book, surveying

the applicability of the book to the central concepts of the class. To be critical means to effectively

convey the intentions and intellectual context of an author’s work and to ask appropriate questions

based on competing approaches or internal coherence. Students may (though they need not) engage in

original research or an evidence-based approach.

50% Take-Home Exam: This will be an integrative essay pulling together and comparing conceptions of

normativity, coercion, and exchange as constitutive elements of the law. This will be equivalent to a

research paper, and some advance preparation will be required.

Note on Attendance and Participation: Points lost in any of the categories above may be regained

through consistent class participation, which may account for up to five marks added to the class

presentation score. University policies and UGC guidelines concerning attendance will be followed.

Readings (Indicative)

1. Abbott, K.W., “Coercion and Communication: Frameworks for Evaluation of Economic

Sanctions,” 19 NYU Journal of Int’l Law & Politics 781 (1987)

2. Abbott, K.W., Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan

Snidal, “The Concept of Legalization,” International Organization, Vol. 54, p. 401, 2000.

3. Anderson, S., "Coercion", The Stanford Encyclopedia of Philosophy (Spring 2014 Edition),

Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2014/entries/coercion/>.

4. Arendt, H. (1963a) On Revolution. New York: Viking Press

5. Arendt, H. (1963b) Eichmann in Israel. A report on the banality of evil. New York: Viking Press

6. Arendt, H. (1970) On Violence. London: Allen Lane/Penguin Press

7. Bailey, F.G., Strategems and Spoils: A Social Anthropology of Politics. Oxford: Basil Blackwell.

(1969).

8. Balbus, I., “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law”

(1977) 11:3 Law & Society Review 571.

9. Baumgold, D. “Pacifying Politics: Resistance, Violence, and Accountability in Seventeenth-

Century Contract Theory” Political Theory 21/1 (Feb. 1993): 6–27.

10. Blau, P. (1964). Exchange and Power in Social Life. New York: John Wiley & Sons;

11. Bull, H. (1977, 2002), The Anarchical Society: A Study of Order In World Politics, Third Edition

(New York: Columbia University Press)

12. Canetti, E., Crowds and Power (Trans. Carol Stewart) 188-190 (1960, 1978).

13. Cooter, R. (1997). Normative Failure Theory Of Law, 82 Cornell L. Rev. 947.

14. Cover, R.M. (1986). ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601–29.

15. Cutler, A.C. (2003). Private Power and Global Authority: Transnational Merchant Law in the

Global Political Economy (Cambridge University Press).

16. Delacroix, S. (2006). Legal norms and normativity: an essay in genealogy. Oxford: Hart

Publishing.

17. Dickey, L. “Doux-commerce and humanitarian values”, Grotiana, new series, 22/23 (2001-

2002):271-317.

18. Edmundson, W.A., Is Law Coercive? Legal Theory, Vol. 1, pp. 81-111 (1995).

19. Elias, N. (1994a) The Civilizing Process (originally in two volumes: volume 1, The History of

Manners, volume 2, State Formation and Civilization), translated by Edmund Jephcott, Oxford:

Blackwell; originally published in 1939 as UÈ ber den Prozess der Zivilisation, Basel: Haus zum

Falker

20. Ellickson, R. (1991), Order Without Law: How Neighbors Settle Disputes (1991);

21. Ellis, DP The Hobbesian Problem of Order: A Critical Appraisal Of The Normative Solution,

American Sociological Review 1971, Vol. 36 (August): 692-703

22. Etzioni, A (1961) A Comparative Analysis of Complex Organization. New York: Free Press.

23. Fanon, F (1961) The Wretched of the Earth (2002) (1961).

24. Filmer, R. Patriarcha (London: Chiswell, 1685).

25. Foucault, M. (1977a) Discipline and Punish. The birth of the prison, translated by Alan

26. Foucault, M. “Society Must Be Defended”: Lectures at the Collége De France, 1975-76 15

(2003).

27. Freud, S. (1994) Civilization and its Discontents. New York: Dover Publications; originally

published in 1930

28. Geertz, C. (1973) The Interpretation of Cultures. New York: Basic Books

29. Giddens, A. (1985) The Nation-State and Violence, A Contemporary Critique of Historical

Materialism, vol. II. (1985).

30. Gouldner, A.W. (1960). The Norm of Reciprocity: A Preliminary Statement. American

Sociological Review, 25, 161–178.

31. Greif, A. 2005. “Commitment, Coercion, and Markets: The Nature and Dynamics of Institutions

Supporting Exchange.” 2005. In the Handbook for New Institutional Economics. Edited by

Claude Menard and Mary M. Shirley. Norwell MA: Kluwer Academic Publishers.

32. Greif, A., Impersonal Exchange without Impartial Law: The Community Responsibility System,

5 Chi. J. Int'l L. 109 (2004-2005) Chicago Journal of International Law 5: 109. (2004)

33. Hale, R. , Coercion and Distribution in a Supposedly Non-Coercive State, 38. Pol. Sci. Q. 470-

494 (1923) at 470-478.

34. Hampton, J. Hobbes and the Social Contract Tradition

35. Hathaway, O.A. and Shapiro, Scott J., (2011) "Outcasting: Enforcement in Domestic and

International Law" 121 Yale Law Journal 252 (2011)

36. Hetcher, S. (1999) Creating Safe Social Norms In A Dangerous World, 73 S. Cal. L. Rev. 1 (1999);

37. Hirschman, A.O. (1977, 1997). The Passions and the Interests. Political Arguments for

Capitalism before its Triumph (Princeton, Princeton University Press, 1977, 1997 ed.),

38. Hobbes, T. Leviathan (Any edition)

39. Hont, I. (2005) Jealousy of Trade: International Competition and the Nation-State in Historical

Perspective (Cambridge, Massachusetts and London: The Belknap Press, 2005),

40. Kanwar, V. “A Map of Force: Coercion, Normativity, and Exchange in International Law,” in

Ugo Mattei and John D. Haskell, eds., Research Handbook on Political Economy and Law,

(forthcoming, Edward Elgar Press, 2014).

41. Kennedy D., (1985) The Role of Law in Economic Thought: Essays on the Fetishism of

Commodities The American University Law Review, Vol. 34: (1985) 939 (1985: 976–977)

42. Kingsbury B. and Benjamin Straumann, “State of Nature versus Commercial Sociability as the

Basis of International Law: Reflections on the Roman Foundations and Current Interpretations

of the International Political and Legal Thought of Grotius, Hobbes, and Pufendorf,” in (eds)

Samantha Besson and John Tasioulas, The Philosophy of International Law (Oxford: Oxford

University Press, 2010) 33.

43. Korsgaard, C. (2006). The Sources of Normativity. Cambridge (1996)

44. Koskenniemi, M. (1989, 2004), From Apology to Utopia (2nd Ed., Cambridge: Cambridge

University Press).

45. Lewellen, T.C. Political Anthropology: An Introduction (3rd Ed.)

46. Lewis, TJ (2000) “Persuasion, Domination, and Exchange: Adam Smith on Political

Consequences of Markets,” Canadian Journal of Political Science 33, no. 2 (June 2000): 273–

289.

47. Malcolm, N., Aspects of Hobbes (Oxford: Oxford University Press, 2002)

48. Mauss, M. (1966). The Gift: Forms and Functions of Exchange in Archaic Societies. London:

Cohen & West, 1966).

49. Merry, S.E. 2006. "Anthropology and International Law." Annual Review of Anthropology

35:99–116

50. Miéville, C (2005). Between Equal Rights: A Marxist Theory of International Law (Leiden and

Boston: Brill)

51. Mitchell, R.B. and Patricia M. Keilbach, Situation Structure and Institutional Design:

Reciprocity, Coercion, and Exchange, International Organization. International Organization

55, 4, Autumn 2001, pp. 891–917.

52. Morgenthau, H.J. 1985, 2005 Politics Among Nations: The Struggle for Power and Peace. New

York: Alfred A. Knopf. 6th Ed. 2005.

53. Nagel, T. The Need for Nations (Review: Law Without Nations?: Why Constitutional

Government Requires Sovereign States by Jeremy A. Rabkin), The New Republic June 27, 2005,

pp. 29-31.

54. North, D.C., J.J. Wallis and B.R. Weingast, (2009) Violence and Social Orders: A Conceptual

Framework for Interpreting Recorded Human History (Cambridge: Cambridge University

Press).

55. Parsons, T. 1937; The Structure of Social Action. Glencoe, Illinois: The Free Press.

56. Pashukanis. E.B. “Law and Marxism: A General Theory by Pashukanis, (1978) Pluto Press, Chris

Arthur, ed.,

57. Pavlakos, G. (2014) "Between Reason and Strategy: Some Reflections on the Normativity of

Proportionality," in Grant Huscroft, Bradley W. Miller, and Gergoire Webber, Proportionality

and the Rule of Law: Rights, Justification, Reasoning (Cambridge). at p. 90-122.

58. Pennock J. R, and John Chapman, eds., Nomos XIV: Coercion (New York: Aldine Atherton

1972).

59. Polanyi, K. (19..) The Great Transformation Beacon Press (19..) at 15.

60. Porter, B.D. (1995) War and the Rise of the State (1994).

61. Posner, E., Law and Social Norms (June 2000);

62. Raz, J. The Authority of Law, Oxford 1979, Ch. 3.

63. Rose, G. (1984)The Dialectic of Nihilism: Post-Structuralism and the Law, New York: Blackwell

64. Russell, B., A History Of Western Philosophy (1961)

65. Sahlins, M. 1965 "On the sociology of primitive exchange." Pp. 139-237 in M. Banton (ed.), The

Relevance of Models for Social Anthropology. London: Tavistock Publications.

Sheridan, Harmondsworth: Penguin; originally published in 1975

66. Shklar, J (1989), “The Liberalism of Fear,” in Nancy L. Rosenblum (ed.), Liberalism and the

Moral Life (1989).

67. Sorel, G. (1906, 1999), Reflections On Violence (Jeremy Jennings Ed., 1999) (1906);

68. Tilly, C (1992). Coercion, Capital And European States, Ad 990-1992 (1992).

69. Torben, S, Legal Positivism, Law’s Normativity, and the Normative Force of Legal Justification,

in Ratio Juris Vol. 16:4 2003.

70. Turner, S.P. and Factor, R.A. (1994) Max Weber. The lawyer as social thinker. London:

Routledge

71. Van Creveld, M (19??) The Rise and Decline of the State.

72. Vogelin, E. The Necessity to Limit Disobedience and Indecision, (Chapter VI The Impersonal

Use of Force §4), in Erich Vogelin, Collected Works, 27, (Year) pp 61-62

73. Walzer, M Obligations (Harvard University Press 1970)

74. Watson, P. Ideas: A History Of Thought And Invention From Fire to Freud

75. Weber, M Economy and Society, vol. I, 158-60

76. White, T.H. (1958, 2011) The Once and Future King. (Pick an edition)

77. Wight, M. (1991): International Theory: The three traditions [Edited by Brian Porter, Gabriele

Wight]. Leicester: Leicester University Press.

78. Wrong, D. 1961 “The Oversocialized Concept of Man in Modern Society.” American

Sociological Review 26: 183-193

Further Information

1. A sample class lecture is available at the following link:

http://www.youtube.com/watch?v=F6W-PI7Oi2Y