8/12/2019 The Conception of Human Rights From the Perspective of the Sociology of Law

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COLEGIO MAYOR DE NUESTRA SEORA DEL ROSARIO

FACULTAD DE CIENCIAS POLTICAS Y GOBIERNO

POLTICA Y SOCIEDADRUBN 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 anapproach to the understanding of the construction ofthe Human Rights. Two are the political theoristwho has relevant propositions related to the subjectpreviously announced, namely, mile Durkheim andMax Weber

Both authors present notable differences in theirrespective approach. Durkheim on the one handconceived law as a manifestation of the specificculture of a society and as such it presents a

proportional relation between the development of

law and social development1. Resulting from asocial construction, these rules holds the spirit of thevalues established as commonly shared by themembers of the society.

Weber, on the other hand, saw law as manifestationof a social order, intended to guide or direct theactions of the individuals. Derived from this, emergethe notion of validity, dependent on the obligatory orexemplary character the law posses on thepopulation.

However, in order to get a connection between thispropositions and the development of the Human

1See 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 thecoercive legal order is established in Durkheims and

Webers work respectively.

In Durkheims theory the range, intensity andsolidity of the common conscience of a society are[] closely connected with a consciousness ofpenal

law2

. Among more is shared an idea in a society,more it can regulate the conduct of the individualswho compose it. This is why the penal law iscomposed with the rules derived from the most solidand shared ideas of the society. However, no matterhow much logical the behaviour of the citizens canbe, its necessary the presence of a coerciveapparatus, that guarantees the performance of thelaw, in order to establish a social order. This is howthe repressive laws, exclusive of the penal law, arecreated.

With regard to Webers exposition, the societycounts with a legal order, composed by rules foraction, or more precisely, a sum of legal propositionsthat determine certain consequences for the

2See Schluchter, The Sociology of Law as an Empirical

Theory of Validity, p. 539.

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fulfilment of a specific action. Law has the functionto secure the observance of rights, defined as thechance factually guaranteed to a person by virtue ofthe 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 purpose3

.

Its within the framework of these proposals where

is appropriate to develop a perspective about HumanRights, pertinent to be applied in the case of theEuropean Court of Human Rights (ECtHR).

The achievement of Human Rights

Although both theoretical constructions are differentand are based on dissimilar conceptions, an

observation make possible to note some commonstarting points, namely, an evolution of rightsgenerated by economic development and theperception of the human race and its individuals.

First of all, Durkheim sees an evolution of therepressive law determined by social developmentand 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 ofthe cult of the group there arises the cult of the

individual. Thereby the individual rights gain moreimportance, over the group rights. In Webers theorythe development of the coercive legal apparatus andthe monopolization of it by the State is correlatedwith the development of the market economy.

On the other aspect, a link between the two theoriesis more evident in the conception of the role of theindividual in the legal system. To Durkheim thedefense and overcome of the individual rightsdoesnt pursue the protection of the particular andspecific conditions of every citizen, but rather the

ideal of the human being, the individual [...], thehumanity in him4. Weber for his part, adopting the

3See Schluchter, The Sociology of Law as an Empirical

Theory of Validity, p. 545.4See Schluchter, The Sociology of Law as an Empirical

Theory of Validity, p. 541-542.

Kants insight, establishes that persons rightsshouldntbe diminished by the pre-eminence of theinterest of the group, since it derives in the loss ofhis dignity.

Talk about Durkheims and Weberswork on Sociology of law

Development of coercive rules.

Human Rights in each theory.

Relation with the behaviour of theEuropean Court.