Sociology of Law, Faculty of Law, University of Groningen, Groningen
1.1. Differing “perspectives” on law
I can very clearly explain what a ‘catholic’ is. This is because as a sociologist I look at the church as if I were a non-believer. This does not mean that I am a non-believer.1414. W. Goddijn (Franciscan, priest, Dutch sociologist of religion – see Wikipedia), interviewed by T. van der Werf, ‘Recent history explains Catholic malaise’, Nieuwsblad van het Noorden, 28 April 1993, 4 (translation JG).View all notes
The character of the fundamental question or collection of questions that defines a scientific discipline is often loosely referred to as constituting a “perspective” that one can adopt concerning the subject matter of the discipline. One can look at nature, for example, from the perspective of a natural science but also from a religious (in terms of creation), an aesthetic (in terms of natural beauty), or a moral (in terms of environmentalism) perspective. The questions asked from these different perspectives differ fundamentally; they bring with them different concepts, criteria for the truth of assertions, and research methods.
In the case of “law”, the most important difference of perspective, for my purposes, is what H. L. A. Hart in The Concept of Law (1961) describes with the dichotomy “internal” and “external”.1515. Hart (1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition., 55–56, 86–88, 99). See Tamanaha (1996Tamanaha, B. 1996. “The Internal/External Distinction and the Notion of a ‘Practice’ in Legal Theory and Sociolegal Studies.” Law & Society Review 30: 163–204.) for a discussion of the distinction and its history in the philosophy of the social sciences. Abel (1973a) formulates the distinction in less technical terms: legal questions are not the same as questions about law (cf. also Abel 1973b).View all notes The “internal perspective” is that of the members of a social group concerning its “law”. The questions they ask, debate and answer concern the way in which behavior is regulated by the legal rules of their group, what the legal consequences are of particular sorts of behavior and so forth. These questions engage both laypersons and, if the group has them, legal specialists (lawmakers, judges, lawyers). In seeking to establish what the applicable legal rule is in a given situation and what its legal consequences are, legal specialists use more or less arcane methods of “legal reasoning” and have more or less exclusive access to special sources of information. Except in a situation of anarchy or revolution there will necessarily be a workable level of general agreement among the general public about what questions are “legal” and hence to be decided by specialists, and among the specialists about the criteria for assessing the truth of a statement that the legal rule about a given matter is R and not Q.1616. See Hart (1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition., 89–96, 113); compare Searle (2010Searle, J. 2010. Making the Social World. Oxford: Oxford University Press., 97). See further §3.3.2.View all notes In circumstances of anarchy or revolution, a workable level of agreement being absent, the participants’ only recourse is not to law but to force.
External and internal perspectives on law: An external perspective on law is not necessarily empirical, and the external empirical perspective of sociology of law must be distinguished from an external moral perspective. In the latter case, the criteria of “critical morality” are used to come to judgments about law generally or about a particular legal arrangement. Natural Law, Utilitarianism and Social Contract theories are frequently used to this end (e.g. respectively, d’Entrèves 1970d’ Entreves, A.P. 1970. Natural Law: An Introduction to Legal Philosophy. 2nd Edn. London.; Singer 1975Singer, P. 1975. Animal Liberation. A New Ethics for Our Treatment of Animals. New York: Avon Books.; Rawls 1972Rawls, J. 1972. A Theory of Justice. Oxford: Oxford University Press.). Of course, information and insight deriving from an external empirical perspective may be relevant for an external moral judgment – as in the case of Utilitarianism.
The formulation of a question (or a statement in answer to an implicit question) does not always reveal the perspective to which it belongs. Thus the statement “logical consistency is an important principle of German law” can be understood from the external perspective as an observed feature of German law, and from the internal perspective as the invocation of a guiding ideal in German legal decision-making. A similar ambiguity attaches to the statement “A and B were divorced in 1975”: this can be a characterization of certain observations, or a shorthand way of invoking certain legal consequences (e.g. the possibility of remarriage). Interpretation of such statements requires that one specify the relevant perspective.
The distinction internal/external is furthermore a relative one. From the perspective of the sociology of law, statements about “law” are external relative to the internal perspective of a participant. But from the perspective of the sociology of science, the very same statements would be internal statements made by participants in the sociology of law.
The “internal” perspective is characteristic of, but not limited to, participants: anyone who is interested in what the law of a society other than his own “is” must act as a virtual participant in order to find out. If a person who is not a French lawyer wants to know what French law is concerning, for example, organ transplantation, she must use the same concepts, ask the same questions, consult the same (for the French) authoritative sources, ignore the same “irrelevant” considerations, and make the same informed guesses that a French lawyer would.1717. Cf. Nowenstein (2010Nowenstein, G. 2010. The Generosity of the Dead. A Sociology of Organ Procurement in France. Abingdon: Ashgate.), a Spanish sociologist with French and Italian sociological training, who did precisely this in her study of the social working of “presumed consent” legislation in France.View all notes Comparative lawyers practice such “virtual insiderness” for a living.
On the other hand, the “external” perspective is that of an outsider, although – like Goddijn (quoted above) – someone who is in fact a participant can adopt the perspective of an outsider. Such a detached observer of legal behavior can take note of the fact that in his own or any other society, legal (and other) rules are produced, followed, interpreted and applied, and enforced, and that all this has consequences.
In describing the law of a society whose internal perspective on its law he does not (at least for present purposes) share, an observer will generally make use of concepts – such as “law” – that derive from the language of actors whose perspective is internal: that is, of actors who are native speakers in his own society or in the society he is observing, or in some third society (as in the case of the use for “external” purposes of terms derived from Roman Law1818. Cf. the controversy about this between the anthropologists Bohannan (1965b) and Gluckman (1973Gluckman, M. (1955) 1973. The Judicial Process Among the Barotse of Northern Rhodesia. Manchester: Manchester University Press., 375–382); for discussion, see Nader (1965Nader, L. 1965. “The Anthropological Study of Law.” In The Ethnography of Law, edited by L. Nader, 3–32. Special Publication, American Anthropologist67 (6), part 2.) and Moore (1969aMoore, S. 1969a. “Comparative Studies.” In Law in Culture and Society, edited by L. Nader. Chicago, IL: Aldine Publishing Co. Reprinted in Moore 1978. London: Routledge & Kegan Paul.).View all notes). The use for external purposes of concepts proper to the internal perspective (in particular, the concept “law”) has often been a source of confusion precisely because the meaning of concepts is one of the things that depend on the sort of question one seeks to answer, and internal questions are different from external ones.19
1.2. “External” questions about law
Hart (1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition.) distinguishes two different sorts of external question (“moderate” and “extreme”) about law, depending on whether or not the perspective adopted takes account of the fact that participants in the behavior concerned themselves have an internal perspective on their use of rules. Essentially alone among sociologists of law, Black does his best to adopt what Hart calls the “extreme external point of view”2020. Hart (1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition., 87).View all notes and altogether to exclude rules, rule-following and the existence of an internal perspective from the sociology of law. In The Behavior of Law (1976), Black defines law as “governmental social control”, that is (in his terms), the behavior of government officials such as policemen and judges.2121. Black (1976Black, D. 1976. The Behavior of Law. New York: Academic Press., 2, 44).View all notes In a review of Black, van Maanen, many years ago, noted the impossibility of such an approach, which depends on being able to distinguish official from non-official behavior without any reference to rules. As van Maanen observed, “not everyone with a policeman’s hat on his head is a policeman”.2222. Freely rendered from van Maanen (1977van Maanen, G.. 1977. Review of D. Black, The Behavior of Law. New York: Academic Press. Recht en Kritiek 1977: 224-228., 227). He referred among other things to a phenomenon prominent in the news at the time: “death squads” active in Brazil, whose members pretended to be policemen.View all notes Without reference to (legal) rules, it is not possible to distinguish “government officials” from other people nor “social control” from other behavior. Fundamental social categories – “property”, “agreement”, “official”, and as we will see in Section 4.2, the most fundamental concept of all in sociology: “group” – can only be observed in relation to the rules that apply in the situation in which one is interested.
Sociology concerns itself with human social behavior. It may be possible to ask questions about this behavior in the “extreme external” way Black seeks to do, without regard to social rules. One would, in effect, be practicing conventional ethology.2323. This does injustice to those ethologists who do take account of social ‘rules’ among some non-human animals (see e.g. de Waal 1989de Waal, F. 1989. Peacemaking Among Primates. Cambridge: Harvard University Press.). But see §3.2.2 for the question whether such animals can be said to have rules in the sociological sense.View all notes Policemen would be identified in more or less the same way ethologists identify an “alpha male”, without reference to social rules obtaining among the animals concerned. Although Black would have to refine his concepts, eliminating those that on their face refer to rules (like “government”), it might be arrogant speciesism to deny the possibility of such an extreme external approach to human behavior when we apply just that sort of approach every day to the behavior of other animals.
Everything depends, I emphasize again, on the question one seeks to answer. What distinguishes sociology – as I see it – from ethology lies precisely in what Black’s “extreme external” approach seeks to leave out: the ordering of behavior with rules. This is what “social behavior” is: rule-ordered behavior. Behavior to which no social rules apply – the killing and pillage of Hobbes’ state of nature – is not social behavior at all. Almost all human behavior is in fact to some extent social, that is, it does not take place in the context of a pure state of nature that knows no rules.
When, why and how do people follow rules? This is what sociology of law is all about. The questions to be answered involve rules of behavior (“norms”). The perspective is “external” – that is to say, not evaluative (not “normative”2424. There is a confusing ambiguity in the way the word “normative” is often used. The internal perspective is “normative” in the sense that it concerns itself with evaluating behavior by measuring it against certain standards (rules of behavior). On the other hand, the external perspective can be described as “normative” because it concerns itself with the observable use of rules. I use the term “normative” exclusively in the first sense, as a characterization proper to the internal perspective, so that “normative” and “empirical” (or “external”) are mutually exclusive terms.View all notes) – but it is not an “extreme” external perspective, as Black’s approach to the sociology of law purports to be,2525. Even a cursory exposure to Black’s writings makes clear that his perspective is not really an “extreme external” one. As Hart observes: “If…the observer really keeps to this extreme external point of view … his description of [the life of the members of a group] cannot be in terms of rules at all” (Hart 1961Hart, H. 1961. The Concept of Law. (2nd ed. 1994). Oxford: Oxford University Press. Page references in this essay are to the 1961 edition., 87). Black makes regular use of terms characteristic of the “moderate external” perspective and that imply the existence of rules, such as “official”, “legislation”, “adjudication”, “arrest”, “indictment”, “conviction”, “acquittal”, “court”, “plaintiff”, “appeal” and so forth (1976Black, D. 1976. The Behavior of Law. New York: Academic Press., 2-3); see also 1980, passimand in particular the discussion of ”violation of the ‘law on the books’ (1976Black, D. 1976. The Behavior of Law. New York: Academic Press., 72).View all notes because the rules (among them, legal rules) that govern the behavior of the members of a group can only be observed if one takes account of the internal perspective of the members of the group concerned. The proposition that R is a rule in a given social group means that it is an observable fact that people in that group generally accept the validity of R.2626. Hart’s distinction between primary and secondary rules and the resulting complexity of the question, who it is who must “accept” the validity of R, if R can be said to exist in a group – matters of critical importance for the sociology of law – will be discussed in §3.2.2.View all notes “Accept” here refers not to a subjective attitude but to behavior: the members of the group use the rule in various ways, both by following it (or by excusing or justifying deviations) and by invoking it in their explanations and evaluations of and reactions to the behavior of others.
Nothing I have said implies that one can only talk about the rules of a group if one oneself adopts the group’s internal perspective. That the participants have an internal perspective on R is, as I just noted, an observable fact. They have no “privileged” knowledge of the fact that they accept R as valid, no knowledge that exists only in their heads and cannot be observed by an outsider who sees them invoking and following R. This is a matter of everyday experience. The bizarre notion that because language is “normative” only the French can know that French is spoken in France seems not to have occurred to anyone, but its equally bizarre equivalent, that because rules of behavior are “normative” one can only know them if one adopts the internal perspective of the social group concerned, is often loosely bandied about as a self-evident truth by sociologists and philosophers of law.
In short, the oft-heard objection that the external, non-normative perspective on law ignores the internal perspective of the participants, and that if taken seriously it would make rules and their use in social interaction unobservable, is simply wrong. Nothing prevents us as sociologists of law from observing the fact that Roman law permitted slavery, and that this had consequences in Roman social life, without ourselves adopting the internal perspective of a Roman toward that law.
To sum up Sections 1.1 and 1.2: The criteria used to judge the truth of statements about “law” depend on one’s perspective. From the internal perspective of a participant, it is the accepted validity criteria of one’s society that determine whether an assertion of the form “it is the law in Xanadu that…” is true or not. On the other hand, from the external, empirical perspective of a sociologist of law, the truth of an assertion about law depends on what can be observed. There is nothing impossible about observing the fact that the participants themselves have an internal perspective on their rules, “legal” or otherwise, and that in that sense those rules exist in their society.27