COLEGIO MAYOR DE NUESTRA SEORA DEL ROSARIO

FACULTAD DE CIENCIAS POLTICAS Y GOBIERNO

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.