Bourdieu’s Sociology of Law: Symbolic Power and Judicial Decisions

Posted on Oct 5, 2024 in Law & Jurisprudence

Bourdieu’s Sociology of Law: Symbolic Violence

The Strength of Legal Elements

2.2.: The Strength of the Right Elements for a Sociology of the Legal Field, Pierre Bourdieu

Breaking with the established dichotomy between the factual (power, experience) and the symbolic, Bourdieu highlights their relationship: symbolic X factual. Law often appropriates only the factual dimension, reducing the legal to the merely factual. This dichotomy represents modernity. However, Bourdieu urges a break with this break.

Bourdieu identifies three fields within law: law, jurisprudence, and doctrine. Doctrine defines and classifies but lacks explanatory depth. Law, according to Bourdieu, remains largely unclarified and unexplained. For example, Article 5 of the Introductory Law to the Civil Code mentions the common good and social purposes, but the law itself doesn’t define these concepts. The burden of explanation falls on the legal operator. The law does not describe; it uses language with a rhetorical function, not a descriptive one.

Symbolic Power
(often ignored, invisible, yet ever-present)
Symbolic power enforces legitimate power by ignoring its own basis. It is a structured and structuring structure, an instrument of domination.

The universality of law is often taken for granted. But this universality is situated within a specific time, social group, historical period, and place. When we encounter legal texts or definitions, we tend to accept them as natural, legitimate, and unquestionable. This acceptance is not a mere translation of reality; it is symbolic. The political, social, and cultural dimensions of the symbolic remain unseen yet shape attitudes and thoughts. A judge’s decision, for example, may involve extra-legal, symbolic power—the symbol of strength over the factual.

The subjectivity of the judge often remains hidden, masked by a pretense of objectivity and rationalization. Arbitrary elements are concealed through the use of legal language, which is presented as universal and objective (e.g., welfare, citizenship, social order). The ability to persuasively employ this language is crucial. Language with a rhetorical function.

Bourdieu’s Sociological Framework

2.2.: The strength of the right elements for a sociology of the legal field, Pierre Bourdieu (Cont’d)

Pierre Bourdieu’s work offers a developed framework for understanding society, exemplified by his analysis of class divisions in France.

Traditional legal teaching often employs a structuralist approach: the whole is greater than the sum of its parts; agents are insignificant; law is general and coercive.

Note: The concept of structure is central to Bourdieu’s analysis.

Basic Concepts

1) Field (social field): A setting where social relations are distributed according to different types of capital. Relations are defined objectively, independently of human consciousness. Practices contribute to the reproduction of capital. Fields are sites of struggle for change or maintenance.

2) Capital: Resources, their distribution, and inheritance. Types include economic, social, cultural, and symbolic capital. Incorporated capital is embodied in the body, shaping behavior. The social is embedded within us; habitus cannot be shed.

3) Habitus: Durable, transferable dispositions that shape the practices of a class or social group. Structured structures that function as structuring structures. Internalization of objective structures of class or social group, leading to the differentiation that characterizes social space.

4) Social Space: Positions constrained by habitus.

5) Symbolic Power: The power to legitimately impose meanings (what is considered right, wrong, beautiful, ugly). It naturalizes social hierarchies.

Method: Dyads (pairs of opposites), structural classifications of agents in the social field, and a relativization of appeals to universality.

Different modes of action (e.g., using a paper towel versus a tissue) express class differences. Internalized behaviors, manifested in the body, reveal different social classes.

Society is marked by relationships based on the resources of different groups. Society is defined as an expression of relations and structures independent of individuals. Structure: Objectively social relations independent of individuals.

Common Sense: Taste is not discussed.
Bourdieu:

I like to argue, as an expression of a social group.

EVERYTHING IS A MATTER OF SOCIAL POWER, EDUCATION!

Society comprises various groups and their relations. The force needed to maintain these groups defines social positions. Concepts are tools for understanding, but they only reflect certain elements of reality. Bourdieu sought a universal theoretical and methodological framework applicable to all social fields.

Note: Social fields reflect social relations distributed according to different types of capital.

Habitus predisposes individual actions. In legal decision-making, habitus plays a significant role. It is acquired and inherited. Positivist approaches, however, tend to ignore this social dimension, focusing on abstractions and equating judges while excluding the social.

How to explain the depoliticized character of the judiciary?

-Theory: Decision;
-Present influence: differentiation.
Law schools often resist this, viewing law as based on equality. Law students struggle with differences and inequalities.

Interpretation involves decision-making and conflict resolution. Family, school, law school, etc., are social fields that influence judicial decisions, extending beyond the strictly legal.

But how is the extra-legal seen as legal?

LUHMANN: Legal determination, causal independence;
FALBO: How extra-legal force, arbitrary violence—not normatively controlled by law and not universal.

Judicial interpretation is guided by a legal work divided into two sectors: theories and doctrines, and practical assessment. Legal work primarily involves jurisdiction—the right to say. This creates competition over who has the final say. Jurisdiction is exercised through interpretation by a competent person, based on a corpus of texts that offer a legitimate vision of the social world. Luhmann argues that law reflects a legitimate vision of society’s needs. This interpretation involves elements of legal culture that express habitus: (1) relative autonomy of performers, (2) a priori logic, (3) universalization of the subject, and (4) neutralization of rules. Theories aim to provide universal knowledge and explain judicial decisions. Doctrine or jurisprudence denotes teaching marked by uniformity and consensus. Universal/Consensus? Objective. However, practical assessment ultimately decides conflicts.

How does justice evade the status of violence, strength, and fairness? In legal practice, fairness and justice are not always achieved, as equity depends on the subjectivity of the assessment. Equity addresses differences; equity conceals, disguises, subtracts what is seen as strength—ex post rationalization. What is seen as justice may involve extra-legal ethical and philosophical elements; subjective decisions create uncertainty in social relations. Universality and objectivity are tools of concealment.

The judiciary resolves conflicts, legitimizing the state’s monopoly on force. The state has the power to resolve conflicts; society does not. The efficiency of the judiciary relies on the symbolic interpretation of law. But how is this interpretation regulated? Not by law (objective and universally accepted), but by doctrine. Doctrine provides interpretive and hermeneutic methods, which are not mandatory. This efficiency involves rationalization and formalization of arbitrary elements. Interpretation and jurisdiction occur within a context of monopoly and competition. The rules regulating and limiting interpretation are not explicit. Regulation and limits are provided through commonly known texts and the exclusion of competing standards. The power of legal language is paramount. Language can provide the basis for a decision, and a common language understood by all reflects competence. This creates a distinction between the “holy ones”—those who know and what they do, holders of capacity—and the “profane”—those who misunderstand. This clash makes the legal field an aristocracy of knowledge. There is competition to determine what is right. Conflicts are partly forgotten, and arguments become discussions among experts.

Note: The function of the judiciary (to say what is right) is a public service.

Judicial decisions are acts of symbolic power, involving naming and characterization; performative and magical acts. Subjective factors determine decisions. The judge’s choice is based on subjectivity. For example, the range of maximum and minimum sentences is defined within the law (objective), but extra-legal factors influence the decision.