John Griffiths
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.1 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?2
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:
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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 businessmen3 – 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?4). 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 parties5) for the way they in fact use contract law. Nothing but confusion can arise when such questions are not distinguished.
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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.
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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.6
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”).7 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),8 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 1976, 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 person10). 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.11 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 not13), it does entail that “sociology of law” in his sense and in mine are two quite different enterprises.