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Reading Eribon and Rereading T.H. Marshall – Inequality in Capitalist Democracies and the Role of the Legal System

12 Dec 2016 10:34 | Ulrike Mueller

Socio-legal science typically has a normative drive towards ideas of democracy, civil liberties and equality. Thus, French philosopher Eribon's Returning to Reims and his description of leftist academics losing touch to everyman and -woman could make us nervous – or, on the contrary, keep calm, as research into law in action runs less of a risk of distance to society's shop-floor level. But as part of academia, it still stabilises hierarchies of knowledge. Eribon obviously hit a nerve among politico-intellectual communities when he described how different societal inequalities – mostly education, income, sexual orientation – compete with each other. These insights are not new, but meet a desire to understand the recent success of European nationalist parties. The US-American election barely needs to be mentioned to start pondering about why working-class people vote against social security, and why migration can so easily figure as a scapegoat.

Does socio-legal science have something to offer to these questions, can it contribute insights into socio-legal possibilities of equality? It can refine its fast analysis on access to justice – not only by adding the aspect of access to legislation but by theorising links between legal and political participation. For instance my current research in Germany shows how unemployed people have lost confidence in parliaments, but not in courts. Germany is the only country with a separate branch of courts for matters of social security.

Furthermore, socio-legal science can not only scrutinize the legal profession, but also the legal clientele, and thereby, give voice to people from diverse societal positions. In addition, it can strengthen the connections between theoretical critiques of law and empirical data. For instance, growing hierarchies with regard to education have been analysed thoughtfully by 20th century's British sociologist T.H. Marshall. In his fundamental article Citizenship and the Social Class he describes the overall trend of increasing equality of rights, including socio-economic rights, and puts it into contrast with the simultaneous spread of capitalism as system of inequality. Searching for immanent boundaries of growing equality, he identifies education as the category of inequality which will gain influence, as it is connected to employment and perceived as legitimate. Thus, this aspect of class would become more important; Returning to Reims would become more difficult. These prediction fits incomfortably well into empirical data about current electoral participation which shows a high and growing degree of socio-economic inequality. Not only do upper-class people participate to a much higher degree in elections than lower-class people, but this distance is even growing when overall economic inequality is rising. But the role of law might be interesting: Marshall described courts as instrument of civil rights, disconnected from social rights. Germany's courts for social security – which offer more hope for unemployed than parliaments do – prove him wrong. Socio-legal science can contribute insights into the role of legal institutions and modes of regulation in the long-term conflict between democracy and capitalism.

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