Sociology of law
The sociology of law, legal sociology, or law and society is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies.[1] Some see sociology of law as belonging "necessarily" to the field of sociology,[2] but others tend to consider it a field of research caught up between the disciplines of law and sociology.[3] Still others regard it as neither a subdiscipline of sociology nor a branch of legal studies but as a field of research on its own right within the broader social science tradition. Accordingly, it may be described without reference to mainstream sociology as "the systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience".[4] It has been seen as treating law and justice as fundamental institutions of the basic structure of society mediating "between political and economic interests, between culture and the normative order of society, establishing and maintaining interdependence, and constituting themselves as sources of consensus, coercion and social control".[5]
Irrespective of whether sociology of law is defined as a sub-discipline of sociology, an approach within legal studies or a field of research in its own right, it remains intellectually dependent mainly on the traditions, methods and theories of sociology proper, criminology, administration of justice, and processes that define the criminal justice system, as well as to a lesser extent, on other social sciences such as social anthropology, political science, social policy, psychology, and geography. As such, it reflects social theories and employs social scientific methods to study law, legal institutions and legal behavior.[6] The sociological study of law, therefore, understands jurisprudence from differing perspectives. Those perspectives are analytical or positive, historical, and theoretical.[7]
More specifically, sociology of law consists of various approaches to the study of law in society, which empirically examine and theorize the interaction between law, legal, non-legal institutions and social factors.[8] Areas of socio-legal inquiry include the social development of legal institutions, forms of social control, legal regulation, the interaction between legal cultures, the social construction of legal issues, legal profession and the relation between law and social change.
More than often sociology of law benefits from research conducted within other fields such as comparative law, critical legal studies, jurisprudence, legal theory, law and economics and law and literature. Its object and that of jurisprudence focused on institutional questions conditioned by social and political situations converge - for example, in the interdisciplinary dominions of criminology and of economic analysis of law - contributing to stretch out the power of legal norms but also making their impacts a matter of scientific concern.[9][10]
Sociological approaches to the study of law[edit]
Modern sociology of law[edit]
The sociology of law became clearly established as an academic field of learning and empirical research after the Second World War.[33] After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of Talcott Parsons, for instance, law is conceived as an essential mechanism of social control.[34] In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged. Critical sociologists,[35] developed a perspective of law as an instrument of power. However, other theorists in the sociology of law, such as Philip Selznick, argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well.[36] Still other scholars, most notably the American sociologist Donald Black, developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology. As "pure science" sociology of law is not concentrated on offenders, but on the functions or consequences of disorder, violence and criminality, approached as products of the physical and social environment determined by law, morality, education and all other forms of social organization.[37] In turn, as ´´applied science´´ it is focused on the solution of concrete problems, which is why - given the theoretical and methodological shortcomings of the study of causes and effects particularly in crime-related matters - the attention of contemporary sociologists is absorbed in the identification and analysis of risk factors (e.g., turning children and youth in potential offenders) and protective factors (tending to bring about "normal" personalities and ´"good" community members)[38] Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann, who presents law or "the legal system" as one of the ten function systems (see functional differentiation) of society.[39][40]
Socio-legal studies[edit]
'Socio-legal studies' in the UK has grown mainly out of the interest of law schools in promoting interdisciplinary studies of law.[60] Whether regarded as an emerging discipline, sub-discipline or a methodological approach, it is often viewed in light of its relationship to, and oppositional role within, law.[61] It should not, therefore, be confused with the legal sociology of many West European countries or the Law and Society scholarship in the US, which foster much stronger disciplinary ties with social sciences. In the past, it has been presented as the applied branch of the sociology of law and criticised for being empiricist and atheoretical.[62] Max Travers, for example, regards socio-legal studies as a subfield of social policy, 'mainly concerned with influencing or serving government policy in the provision of legal services'[63] and adds that it "has given up any aspirations it once had to develop general theories about the policy process".[64]
Notable practitioners of socio-legal studies include Professor Carol Smart, co-director of the Morgan Centre for the Study of Relationships and Personal Life, (named after the sociologist, David Morgan), as well as Professor Mavis Maclean and John Eekelaar who are joint directors of the Oxford Centre for Family Law and Policy (OXFLAP).
Socio-legal methods of investigation
The sociology of law has no methods of investigation which have been developed specifically for conducting socio-legal research. Instead, it employs a wide variety of social scientific methods, including qualitative and quantitative research techniques, to explore law and legal phenomena. Positivistic[65] as well as interpretive (such as discourse analysis) and ethnographic[66] approaches to data collection and analysis is used within the socio-legal field.[67]
Sociology of law in Britain[edit]
Sociology of law was a small, but developing, sub-field of British sociology and legal scholarship at the time when Campbell and Wiles wrote their review of law and society research in 1976. Unfortunately, despite its initial promise, it has remained a small field. Very few empirical sociological studies are published each year. Nevertheless, there have been some excellent studies, representing a variety of sociological traditions as well as some major theoretical contributions. The two most popular approaches during the 1960s and 1970s were interactionism and Marxism.
Symbolic interactionism and Marxism
Interactionism had become popular in America in the 1950s and 1960s as a politically radical alternative to structural-functionalism. Instead of viewing society as a system regulating and controlling the actions of individuals, interactionists argued that sociology should address what people were doing in particular situations, and how they understood their own actions.[68] The sociology of deviance, which included topics such as crime, homosexuality, and mental illness, became the focus for these theoretical debates. Functionalists had portrayed crime as a problem to be managed by the legal system. Labeling theorists, by contrast, focused on the process of law-making and enforcement: how crime was constructed as a problem. A number of British sociologists, and some researchers in law schools, have drawn on these ideas in writing about law and crime.[69]
The most influential sociological approach during this period was, however, Marxism—which claimed to offer a scientific and comprehensive understanding of society as a whole in the same way as structural-functionalism, although with the emphasis on the struggle between different groups for material advantage, rather than value-consensus. This approach caught the imagination of many people with left-wing political views in law schools, but it also generated some interesting empirical studies. These included historical studies about how particular
statutes were used to advance the interests of dominant economic groups, and also Pat Carlen's memorable ethnography,[70] which combined analytic resources from Marxism and interactionism, especially the sociology of Erving Goffman, in writing about magistrates' courts.
The Oxford Centre for Socio-Legal Studies
The 1980s were also a fruitful time for empirical sociology of law in Britain, mainly
because Donald Harris deliberately set out to create the conditions for a fruitful
exchange between lawyers and sociologists at the University of Oxford Centre for Socio-Legal Studies. He was fortunate enough to recruit a number of young and
talented social scientists, including J. Maxwell Atkinson and Robert Dingwall who were interested in ethnomethodology, conversation analysis, and the sociology
of the professions, and Doreen McBarnet who became something of a cult figure on the left after publishing her doctoral thesis,[71] which advanced a particularly clear and vigorous Marxist analysis of the criminal justice system. Ethnomethodology has not previously been mentioned in this review, and tends to be overlooked by many reviewers in this field since it cannot easily be assimilated to their theoretical interests. One can note, however, that it has always offered a more radical and thorough-going way of theorizing action than interactionism (although the two approaches have a lot in common when compared to traditions that view society as a structural whole, like Marxism or structural-functionalism). During his time at the center, J. Maxwell Atkinson collaborated with Paul Drew, a sociologist at the University of York, in what became the first conversation analytic study of courtroom interaction, using transcripts of coroner's hearings in Northern Ireland.[72]
Another area of interest developed at Oxford during this period was the sociology of the professions. Robert Dingwall and Philip Lewis[73] edited what remains an interesting and theoretically diverse collection, bringing together specialists from the sociology of law and medicine. The best known study to date has, however, been published by the American scholar Richard Abel[74] who employed ideas and concepts from functionalist, Marxist, and Weberian
sociology to explain the high incomes and status that British lawyers enjoyed for most of the twentieth century.
Recent developments
Since the 1980s, relatively few empirical studies of law and legal institutions have been conducted by British sociologists, i.e. studies which are empirical and at the same time engage with the theoretical concerns of sociology.[75] There are, however, some exceptions. To begin with, sociology of law, along with so many areas of academic work, has been enlivened and renewed through engagement with feminism. There has been a great deal of
interest in the implications of Foucault's ideas on governmentality for understanding
law,[76] and also in continental thinkers such as Niklas Luhmann and Pierre Bourdieu. Again, one can argue that rather fewer empirical studies have been produced than one might have hoped, but a great deal of interesting work has been published.
A second exception is to be found in the works of researchers who have employed resources from ethnomethodology and symbolic interactionism in studying legal settings.[77] This type of research is clearly sociological rather than socio-legal research because it continually engages in debate with other theoretical traditions in sociology. Max Travers' doctoral thesis about the work of a firm of criminal lawyers took other sociologists, and especially Marxists, to task for not addressing or respecting how lawyers and clients understand their own actions (a standard argument used by ethnomethodologists in debates with structural traditions in the discipline). It also, however, explored issues raised by legal thinkers in their critique of structural traditions in sociology of law: the extent to which social science can address the content of legal practice.
Despite the relatively limited developments in recent empirical research, theoretical debates in sociology of law have been important in British literature during recent decades, with contributions from David Nelken exploring the problems of a comparative sociology of law and the potential of the idea of legal cultures,[78] Roger Cotterrell seeking to develop a new view of the relations of law and community to replace what he sees as outdated 'law and society' paradigms,[79] and other scholars, such as David Schiff and Richard Nobles, examining the potential of Luhmannian systems theory and the extent to which law can be seen as an autonomous social field rather than as intimately interrelated with other aspects of the social.[80] Also significant has been the burgeoning field of socio-legal research on regulation and government,[81] to which British scholars have been prominent contributors.
Devising a sociological concept of law[edit]
In contrast to the traditional understanding of law (see the separate entry on law), the sociology of law does not normally view and define the law only as a system of rules, doctrine and decisions, which exist independently of the society out of which it has emerged. The rule-based aspect of law is, admittedly, important, but provides an inadequate basis for describing, analysing and understanding law in its societal context.[82] Thus, legal sociology regards law as a set of institutional practices which have evolved over time and developed in relation to, and through interaction with, cultural, economic and socio-political structures and institutions. As a modern social system, law does strive to gain and retain its autonomy to function independently of other social institutions and systems such as religion, polity and economy. Yet, it remains historically and functionally linked to these other institutions. Thus, one of the objectives of the sociology of law remains to devise empirical methodologies capable of describing and explaining modern law's interdependence with other social institutions.[83]
Social evolution has converted law into a mighty – perhaps the most important – reference of civilised life by substituting traditional bonds conditioned by identities of “blood” or territory for a new type of subordination specifically legal and voluntary between actors that are equal and free. The degree of abstraction of rules and legal principles increases constantly, the system acquires autonomy and control over its own dynamics, allowing the normative order of society to manage without religious legitimation and the authority of customs. In modern societies law is thus distinguished by
(1) its autonomy in relation to politics, religion, nonlegal institutions and other academic disciplines; it is a set of fixed rules which thanks to the power of the state acquires binding force and remains effective, imposing norms of conduct to individuals, social groups and entire societies; and also a social technique, a system of behaviour regulation endowed with a very special and artificial linguistic form kept at safe distance from vague and fluid colloquial language, in a permanent state of transformation;
(2) its corporations and professional guilds of lawmakers, judges, solicitors, legal scholars;
(3) its idealised institutions, conceived less by tradition than by force of systematisation; and
(4) its process of education oriented towards explanation and evaluation of juridical entities, rules, regulations, statutes etc.[84]
Some influential approaches within the sociology of law have challenged definitions of law in terms of official (state) law (see for example Eugen Ehrlich's concept of "living law" and Georges Gurvitch's "social law"). From this standpoint, law is understood broadly to include not only the legal system and formal (or official) legal institutions and processes, but also various informal (or unofficial) forms of nomativity and regulation which are generated within groups, associations and communities. The sociological studies of law are, thus, not limited to analysing how the rules or institutions of the legal system interact with social class, gender, race, religion, sexuality and other social categories. They also focus on how the internal normative orderings of various groups and "communities", such as the community of lawyers, businessmen, scientists, members of political parties, or members of the Mafia, interact with each other. In short, law is studied as an integral and constitutive part of social institutions, groupings and communities. This approach is developed further under the section on legal pluralism.[85]
Non-Western sociology of law[edit]
When we speak of the non-Western world, we are referring to areas where cultures have developed that are substantially outside the Greek-Judeo-Christian tradition of Western culture. It thus includes East Asia (China, Japan, South Korea), Southeast Asia, the Indian subcontinent, the Middle East, and sub-Saharan Africa.
The interest in the sociology of law continues to be more widespread in Western countries. Some important research has been produced by Indian scholars,[86] but we find only a limited amount of socio-legal work by researchers from, for example, the Middle East or central and northern parts of Africa.[87] Thus, the global spread of sociological studies of law appears uneven and concentrated, above all, in industrialised nations with democratic political systems. In this sense, the global expansion of legal sociology “is not taking place uniformly across national boundaries and appears to correlate with a combination of factors such as national wealth/poverty and form of political organisation, as well as historical factors such as the growth of the welfare state... However, none of these factors alone can explain this disparity”.[88]
Contemporary perspectives[edit]
Legal pluralism[edit]
Legal pluralism is a concept developed by legal sociologists and social anthropologists "to describe multiple layers of law, usually with different sources of legitimacy, that exist within a single state or society".[89] It is also defined "as a situation in which two or more legal systems coexist in the same social field".[90] Legal pluralists define law broadly to include not only the system of courts and judges backed by the coercive power of the state, but also the "non-legal forms of normative ordering".[91] Legal pluralism consists of many different methodological approaches and as a concept, it embraces "diverse and often contested perspectives on law, ranging from the recognition of different legal orders within the nation-state, to a more far reaching and open-ended concept of law that does not necessarily depend on state recognition for validity. This latter concept of law may come into being whenever two or more legal systems exist in the same social field".[92]