Sociology of Law, Faculty of Law, University of Groningen, Groningen
Anyone who has ever introduced himself as a sociologist of law – on occasions as disparate as a cocktail party or an academic encounter with a colleague from another discipline – knows how difficult it is to answer the innocent question: “What is sociology of law?” Apparently most people do not have the same ready mental picture of such an occupation as they do of farming or lawyering or even of physics. As simple as the innocent question sounds, giving anything like a satisfactory answer to it is not easy and the attempt has rarely been made.11. For a rare exception, see Ehrlich (1936Ehrlich, E. 1936. Fundamental Principles of the Sociology of Law. Translated by W. L. Moll. Cambridge: Harvard University Press.): “the theoretical science of law” (25) concerns the “inner order of … social associations” (37). See also Black (1993Black, D. 1993. “Social Control as a Dependent Variable.” Chapter 1 in The Social Structure of Right and Wrong. San Diego, CA: Academic Press., 2): sociology of law is a part of the sociology of social control, that is, “how people define and respond to deviant behavior”.View all notes In this essay, I make such an attempt, proceeding on the assumption that sociology of law is a part of social science generally and that the fundamental assumptions and principles of (social) science therefore apply. It should be emphasized that in this essay, I make no original contribution to theory itself: the essay is meta-theoretical, that is, it concerns the criteria according to which every theoretical contribution to sociology of law should be assessed.
1. TO WHAT QUESTION IS SOCIOLOGY OF LAW ADDRESSED?
Gertrude Stein, shortly before her death, to Alice B. Toklas: What is the answer? Toklas remains silent. Stein: In that case, what is the question?22. Freely from J. Malcolm, “Someone says yes to it: Gertrude Stein, Alice B. Toklas, and ‘The Making of Americans’,” The New Yorker, June 13, 2005, 148–165.View all notes
All scientific work begins with a question about the world we live in. Scientific disciplines are defined by the sorts of questions they seek to answer. Questions go before concepts or theory or methods, and until one has settled on the sort of question one is dealing with, no sensible discussion of such matters is possible. For example:
Whether “sociology of law” is part of the study of “law”, or rather belongs among the social sciences (“sociology”, “economics” or “psychology”) depends on the sorts of questions it is taken to address. Thus the idea of “relational contract” – deriving from Macaulay’s writings about contracting practices among businessmen33. Macaulay (1963Macaulay, S. 1963. “Non-contractual Relations in Business: A Preliminary Study.” American Sociological Review28: 55–67., 1977Macaulay, S. 1977. “Elegant Models, Empirical Pictures and the Complexities of Contract.” Law and Society Review 11: 507–529., 1985Macaulay, S. 1985. “An Empirical View of Contract.” Wisconsin Law Review 1985: 465–482., 1995Macaulay, S. 1995. “Crime and Custom in Business Society.” Journal of Law and Society 22: 248–258., 1996Macaulay, S. 1996. “Organic Transactions: Contract, Frank Lloyd Wright and the Johnson Building.” Wisconsin Law Review 1996: 75–121.).View all notes – has two subsequent histories depending on the question those who invoke his work are interested in. Among contract scholars, the question concerns contract doctrine (should the law take account of the nature of the relationship – long-term or one-off – between contracting parties?44. See e.g. McNiel (1985McNiel, I. 1985. “Relational Contract: What We Do and Do Not Know.” Wisconsin Law Review 1985: 483–525.).View all notes). By contrast, from a sociological perspective, the question is a theoretical one concerning the importance of the relationship between the parties (and their relationships with third parties55. Macaulay emphasizes the importance for businessmen of maintaining a good name (i.e. acting in accordance with social expectations) as one reason not to approach contracting and disputes over a contract in a “legal” way. Compare the description by Baerends (1994) of social norms concerning the appropriate way to deal with a defaulting debtor; Engel (1993Engel, D. 1993. “Law in the Domains of Everyday Life: The Construction of Community and Difference.” In Law in Everyday Life, edited by A. Sarat and T. R. Kearns, 123–170. Ann Arbor: University of Michigan Press.) on social norms concerning when it is appropriate to go to court over a neighborhood dispute.View all notes) for the way they in fact use contract law. Nothing but confusion can arise when such questions are not distinguished.
Whether “law” should be defined as the “commands of the sovereign” (or some more modern equivalent) or as a sort of “social control” depends on whether one is interested in what the traffic rules of English law are, or in how social order is maintained on English roads.
What methodology is appropriate in studying law depends on whether one seeks to apply it, to compare it with the law in other social groups, to understand how it came to be what it is and what people think about it, or to ascertain what effects it has on behavior and how such effects come about.66. Compare Adams and Griffiths (2012Adams, M., and J. Griffiths. 2012. “Against ‘Comparative Method’: Explaining Similarities and Differences.” In Practice and Theory in Comparative Law, edited by M. Adamsand J. Bomhoff, 279–301. Cambridge: Cambridge University Press.).View all notes
Black, who almost alone among sociologists of law has thought seriously about such matters, argues that every scientific discipline is defined by its dependent variables and that the sociology of law, properly so called, has as its dependent variable “the behavior of law” (in particular, the “quantity of law”).77. This position is largely implicit in Black’s work (see e.g. Black 1976Black, D. 1976. The Behavior of Law. New York: Academic Press., 1993Black, D. 1993. “Social Control as a Dependent Variable.” Chapter 1 in The Social Structure of Right and Wrong. San Diego, CA: Academic Press.). In a letter to Griffiths in connection with Griffiths (2003Griffiths, J. 2003. “The Social Working of Legal Rules.” The Journal of Legal Pluralism and Unofficial Law 35: 1–84.) (see Griffiths 1996Griffiths, J. 1996. “Wat Is Rechtssociologie?” [What Is Sociology of Law?]. In De sociale werking van recht, edited by J. Griffiths, 1–67. Nijmegen: Ars Aequi Libri., 63–64, n 119), Black writes: “I do not believe that the effects of law fall within the jurisdiction of the sociology of law… I believe that each field of sociology should be defined by the range of variation it seeks to order, i.e. its cluster of dependent variables…” I prefer to emphasize the question(s) that a discipline seeks to address. The two approaches to the idea of a scientific discipline amount to about the same.View all notes Since he defines “law” for his purposes as “governmental social control”, the central question of Black’s approach to sociology of law is this: How can variation in the quantity of governmental social control be explained? Why, for example, do some sorts of people and some sorts of relationships attract more governmental social control than others? One of the propositions of Black’s theory is that the quantity of governmental social control in a particular case varies with the “relational distance” between the persons involved: close relationships attract little “law”. This, and the proposition that “law” varies with “stratification” (inequality of wealth),88. On ‘stratification’, see e.g. Ross (1901Ross, E. A. 1901. Social Control: A Study of the Foundations of Order. New York: Macmillan. Reprinted 1969, Cleveland: Case Western Reserve UP.).View all notes another of Black’s propositions, are his way of formulating two general theoretical ideas in the sociology of law that enjoy a great deal of empirical support.
Relational distance: The “social distance” between members of a group – their direct or indirect dependence upon one another. Relational distance is a function of the number, degree of overlapping and strength of social bonds (cf. Black 1976Black, D. 1976. The Behavior of Law. New York: Academic Press., 40–41). The basic idea goes back at least as far as Durkheim’s (1964a) distinction between “organic” and “mechanical” solidarity and has a considerable theoretical and ethnographic history, especially in the anthropology of law.9
Black’s central question – explaining the quantity of governmental social control – is plainly an interesting and important one. That one can have serious reservations about some aspects of his theory, as he formulates it, does not diminish the respect one must have for the single mindedness with which he defines his discipline in terms of a central question and, in working out his theory, continually strives to keep concepts, theoretical propositions and methodology subservient to that question.
Black’s central question, however, is fundamentally different from the question that – for reasons to be developed in this essay – I take to be the key to a sociological science of law. Black does not believe that legal rules – considered as independent variables – help explain the sort of variation he is interested in (for example, how likely it is that the police will arrest a given person1010. See e.g. Black (1980Blankenburg, E. 1980. “Recht als Gradualisiertes Konzept” [Law as a Continuous Concept]. Jaarbuch fur Rechtssoziologie und Rechtstheorie 6: 83–98.).View all notes). Rules, therefore, play at most a marginal role in his “theory of law”. By contrast, in my view, the proper subject of the sociology of law is social control, “legal” or otherwise, and more specifically: rule-following.1111. Searle (1995Searle, J. 1995. The Construction of Social Reality. New York: Free Press., 145–147) argues that the relationship between rules and rule-conforming behavior is much more complicated than the expression “rule-following” suggests, including a large component of behavioral dispositions that have developed in a way that makes them sensitive to existing social rules. This seems to me a very important point, in particular in connection with the idea of rules as independent variables that explain behavior (§3.3.2). I will, nevertheless, largely avoid the additional expository complications entailed by Searle’s argument. Whenever I refer to “rule-following”, I mean to include behavior caused by such rule-sensitive dispositions.View all notes The central, defining question of the sociology of law is as follows:12
Under what circumstances do people follow (legal) rules?
Whether or not Black’s exclusion of rules from his theory is tenable (I believe it is not1313. Black is not entirely consistent (or clear) about the place of rules in his theory: he includes legal “prohibitions, obligations and other standards” and “order[s] or command[s] of any kind” among the phenomena that make up the “quantity of law” (see Black 1976, 3). This seems – among other things – to render his conception of the “quantity of law” problematic, since as far as I am aware no one has yet found a way to operationalize the notion of a unit of regulation (cf. Griffiths 1984cGriffiths, J. 1984c. “Heeft de Rechtssociologie een toegevoegde Waarde? Reflecties naar aanleiding van een Oratie van Kees Schuy t” [Does the Sociology of Law have added value? Reflections Occasioned by an Inaugural Lecture by Kees Schuyt.]. Mens en Maatschappij 59: 82–97.). See further §126.96.36.199.View all notes), it does entail that “sociology of law” in his sense and in mine are two quite different enterprises.