Sociology of Law, Faculty of Law, University of Groningen, Groningen
4. What, then, is sociology of law?
The short answer to the question posed at the beginning of this essay can now be precisely formulated:
Sociology of law is an empirical social science whose subject is social control, that is to say, the social working of rules (primary and secondary), its causes and effects.
Such a conception of the discipline brings with it specific requirements for the nature of the theory its practitioners seek to develop, for the concepts and methods they deploy, and for the criteria for the truth of statements they deem relevant. In short, such a conception has profound consequences for the work of a sociologist of law.
4.1. The expression “social control”
Is the traditional expression “social control” an adequate name for the key concept of the sociology of law? To recapitulate the theoretical setting in which such a question arises, sociology is the study of the behavior of people in groups, groups are identifiable by their characteristic social order, social order is the product of social rules (which are constitutive of groups – without social rules there are no groups, just categories). It is the relationship between the social rules of a group and the group’s characteristic social order that is traditionally referred to as “social control”. But does the term do justice to the nature of the relationship between rules, behavior and social order?
The problem lies with the word “control”, which suggests that the relationship between rules and social order proceeds through rule-following (leaving avoidance, for example, outside the picture), secured if necessary by social sanctions of one sort or another (“control”). And all this assumes, as well, that the key characteristic of a social rule is that it imposes limitations on behavior. But many rules do not so much limit behavior as offer possibilities – facilities – for sorts of behavior that without the rules would not exist at all: marriage rules, for example, and other rules that offer possibilities for coordinating behavior and for special forms of interaction (such as guest or employer).147147. Goffman’s (1969Goffman, E. 1969. Strategic Interaction. Philadelphia: University of Pennsylvania Press.) concept of “interaction rituals” nicely captures the importance of many such rules for everyday encounters. Cf. also e.g. Coleman (1990Coleman, J. 1990. Foundations of Social Theory. Cambridge: Harvard University Press.); Ellickson (1991Ellickson, R. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press., 2008Ellickson, R. 2008. The Household: Informal Order Around the Hearth. Princeton, NJ: Princeton University Press.); Goffman (1967Goffman, E. 1967. Interaction Ritual: Essays on Face-to-Face Behavior. Chicago, IL: Aldine.); Riesman (1999Reisman, W. 1999. Law in Brief Encounters. New Haven: Yale University Press.).View all notes
The fact that groups have rules concerning the behavior of their members does not entail the top-down implication that one person or group “controls” the behavior of others. Many of a group’s rules may have no particular “author” nor anyone in particular charged with surveillance and “enforcement”.
Finally, the critical role of secondary rules in a functioning system of social control (and not only, as Hart supposes, in a highly differentiated system: “law”) – rules that govern the social processes by which primary rules are identified, interpreted, created and changed – fits only uncomfortably under the heading “social control”.
In short, the expression “social control” carries with it some unfortunate connotations and limitations concerning the relationship between rules and social behavior. What we are interested in is the relationship between, on the one hand, a group’s rules and their behavioral effects – the social working of those rules – and on the other hand, the characteristic social order that a group’s rules bring about.148148. See Griffiths (2003Griffiths, J. 2003. “The Social Working of Legal Rules.” The Journal of Legal Pluralism and Unofficial Law 35: 1–84.).View all notes I have not been able to find an expression other than “social control” that encompasses the whole of this idea, and I suspect that others may not have fared any better and that this explains why the expression “social control” is so predominant in the literature. As long as we remain aware of its limitations, it is perhaps safe to continue using it.149149. Van den Bergh (1985van den Bergh, G. 1985. “Book Review. Toward a General Theory of Social Control edited by D. Black.” Journal of Legal Pluralism 23: 209–219., 210) has criticized such an inclusive concept of social control as follows: “I think that the concept … will quickly lose all meaning … and become useless as an analytic instrument for social-scientific research.” I do not agree. Highly general terms are crucial to empirical theory. It is of course the case that a theoretical term must be operationalizable and that in Black’s case, for example, this seems problematic, but van den Bergh does not show that operationalization of a well-defined concept of social control is not possible.View all notes
4.2. Sociology of law and sociology150150. This section derives in significant part from Griffiths (2005Griffiths, J. 2005. “The Idea of Sociology of Law and its Relation to Law and to Sociology.” In Law and Sociology, edited by M. Freeman, 49–68. Oxford: Oxford University Press.).View all notes
All collective human life is directly or indirectly shaped by law. Law is, like knowledge, an essential and all-pervasive fact of the human condition.
(N. Luhman)151151. Luhmann (1985, 1).View all notes
Sociology of law is the sociological study of law. There is more to this proposition than a play on words. It implies something that has seemed – over the last century or so – not at all self-evident. That is, that sociology of law belongs to the discipline of sociology and not to that of law.152152. This is, of course, not to deny the fact that the sociology of law has historically had – and to this day continues to have – its principal roots in the interest of socially conscious legal scholars in the social effects of law. Hunt (1978) refers to these historical roots as the “sociological movement in law” to distinguish it from the “sociology of law” as a social–scientific discipline. Compare Campbell and Wiles (1976) for a similar distinction in British academic quarters between “socio-legal studies” and “sociology of law”.View all notes
Sociology is the scientific study of social life: the life of human beings in groups.153153. This conception of sociology is exemplified in the work of Homans (in particular, The Human Group, 1950Homans, G. 1950. The Human Group. New York: Harcourt, Brace, Janovich.). In modern sociology of law Moore’s (1973Moore, S. 1973. “Law and Social Change: The Semi-autonomous Social field as an Appropriate Subject of Study.” Law and Society Review 7: 719–746. Reprinted in Moore 1978. London: Routledge & Kegan Paul.), rather cumbersome technical term “semi-autonomous social field” is commonly used to identify the social groups within which the regulation of behavior takes place (cf. e.g. Griffiths 2003Griffiths, J. 2003. “The Social Working of Legal Rules.” The Journal of Legal Pluralism and Unofficial Law 35: 1–84.) This has the virtue of emphasizing the limited autonomy of social groups, but it does so at the cost of putting terminological awkwardness at the heart of sociological theory. On reflection, and after many years of using Moore’s terminology, I have come to prefer Homans’ use of the word “group”. Two other serious contenders in the literature – “association” (Ehrlich 1936Ehrlich, E. 1936. Fundamental Principles of the Sociology of Law. Translated by W. L. Moll. Cambridge: Harvard University Press.) and “rechtsgemeenschap” [legal community] (van Vollenhoven 1981van Vollenhoven, C. 1981. Van Vollenhoven on Indonesian Adat Law: Selections from ‘Het Adatrecht van Nederlandsch-Indië’, edited by J. F.Holleman. The Hague: Nijhoff.) – have their virtues, but at the cost of suggesting too close an affiliation with “law” in the everyday sense.View all notes It concerns itself with everything that distinguishes a group from a happenstance collection of individuals – a student association, for example, from the people (mostly students) who happened to pass under my window on the sidewalk below as I first wrote these lines. Many other animals also live in groups, but in the case of man, social life is extraordinarily complex and the part that biology plays in social life, while indirectly fundamental, is for our purposes relatively modest.
Sociology concerns groups, but a “group” does not exist independently of its members. Everything that can be said about a group can be reduced to statements about the members, their shared rules and their interactive behavior. There is no “extra” substance that, like the smile of the Cheshire Cat,154154. See L. Carroll, Through the Looking-Glass and What Alice Found There (London: Macmillan, 1871). The Cheshire Cat could gradually disappear, until ultimately nothing more than its smile remained.View all notes is left over if you think away all the members of a group, and that someone might want to call “the group itself” or its “essence”.
The defining characteristic of a group is that the interactions between the members are regulated by rules that are to some extent idiosyncratic in the sense that they permit an observer to distinguish one group from another.155155. In principle, a set of individuals could constitute more than one group; for example, the co-owners of a condominium could also be the only members of a sport club. If the two groups have different origins (with distinct memberships) or if they are, independently of one another, in principle open to new members and in particular if they have two distinct sets of primary and secondary rules, it might for some purposes be useful to describe them as two groups rather than as a single group with distinct rules for distinct activities.View all notes The behavior of the members of a group is “social behavior” to the extent it is effectively so regulated. The social working of rules – “social control” – is thus constitutive for all social groups. All of the characteristics and activities of a group, all of the social behavior of its members and all of the consequences that life in groups (social order) has for human beings, are derivative of and dependent upon rules and their social working.
Since sociology is the study of the behavior of human beings in groups, and since social control is the sine qua non of a group and of all social behavior, it follows that in addressing itself specifically to social control the sociology of law is conceptually foundational to the rest of sociology. The sociology of work, religion, medicine or whatever, all of them ultimately depend upon the fact that the characteristic internal order of every group is dependent on the social working of its rules – that is, of its “law” in the expansive sense necessary for the sociology of law. This explains why “law” played such a prominent part in the work of so many of the founding fathers of sociology, in particular Weber and Durkheim.156156. See Weber (1954Weber, M. 1954. On Law in Economy and Society. Translated by Rheinstein and Shils. New York: Simon and Schuster. (1st German edition. 1922).); Durkheim (1964).View all notes
It follows from the foregoing that the relationship between sociology of law and sociology generally is not one of daughter discipline to mother discipline, as is commonly supposed. Rather, sociology of law concerns the foundational element of all of sociology. Human social life is only possible – conceivable – thanks to rules and their social working, with which it is saturated, from top to bottom, from the most high-visibility institutions to the most mundane interactions. All of this, however, differentiated or undifferentiated it may be, is the proper subject of the sociology of law.
4.3. Sociology of law and related social–scientific disciplines
Sociology of law is not the only social–scientific discipline that concerns itself with “law”. As far as the anthropology of law is concerned, the case is simple: there is no real (i.e. theoretical) scientific difference between the two: accidents of academic institutionalization and methodological preference aside, “sociology of law” and “anthropology of law” are two names for the same discipline.157157. See Griffiths (1986aGriffiths, J. 1986a. “Recent Anthropology of Law in the Netherlands and its Historical Background.” In Anthropology of Law in the Netherlands, edited by K. von Benda-Beckmann and F. Strijbosch, 11–66. Dordrecht: Foris Publications.) and F. von Benda-Beckman (2009von Benda-Beckmann, F. 2009. “Riding or Killing the Centaur? Reflections on the Identities of Legal Anthropology.” In Law and Anthropology, edited by M.Freeman and D. Napier, 13–46. Oxford: Oxford University Press.) for more extensive discussions of the relationship between anthropology of law and sociology of law.View all notes I prefer to use “sociology” to refer to the discipline as a whole because it puts the emphasis on social life as the level at which questions are posed and answers sought. There are approaches to anthropology, such as “physical anthropology” that do not share such a focus; and “philosophical anthropology” is not scientific in character at all. All these seem to me good reasons to use the term “sociology”. Nevertheless, there are some special features of the anthropological tradition in sociology of law that should be noted: (1) anthropologists of law have tended to focus especially on the micro-level of individual transactions in small social groups.158158. Compare, for example, the approach to legal effectiveness of the sociologist Aubert (1966Aubert, V. 1966. “Some Social Functions of Legislation.” Acta Sociologica 10: 98–121.) with that of the anthropologists Moore (1973Moore, S. 1973. “Law and Social Change: The Semi-autonomous Social field as an Appropriate Subject of Study.” Law and Society Review 7: 719–746. Reprinted in Moore 1978. London: Routledge & Kegan Paul.) and Collier (1976Collier, J. 1976. “Political Leadership and Legal Change in Zinacantan.” Law and Society Review. 11: 131–163.). To every such generalization there are of course exceptions, and the sociologist lawyers Macaulay (1963Macaulay, S. 1963. “Non-contractual Relations in Business: A Preliminary Study.” American Sociological Review28: 55–67.) and Galanter (1981Galanter, M. 1981. “Justice in Many Rooms: Courts, Private Ordering and Indigenous Law.” The Journal of Legal Pluralism and Unofficial Law 13: 1–47.) come immediately to mind.View all notes (2) Anthropologists of law early on recognized legal pluralism as a universal characteristic of human societies and drew the necessary theoretical and methodological conclusions.159159. Ehrlich (1936Ehrlich, E. 1936. Fundamental Principles of the Sociology of Law. Translated by W. L. Moll. Cambridge: Harvard University Press.) is a notable exception to the general indifference to legal pluralism characteristic of sociologists of law.View all notes (3) Anthropologists of law have self-consciously adopted a comparative and historical approach to the study of legal behavior.160160. See e.g. 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.); Pospisil (1971Pospisil, L. 1971. Anthropology of Law. A Comparative Perspective. New York: Harper and Row.); Abel (1973b); 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.); Gulliver (1979); Bohannan (1969Bohannan, P. 1969. “Ethnography and Comparison in Legal Anthropology.” In Law in Culture and Society, edited by L. Nader, 401–418. Chicago, IL: Aldine.); Merry (1982Merry, S. 1982. “The Social Organization of Mediation in Non-industrial Societies: Implications for Informal Community Justice in America.” In The Politics of Informal Justice (Vol. II), edited by R. Abel, 17–45. New York: Academic Press.).View all notes
There are several other social–scientific disciplines whose empirical research and theory formation partly overlaps that of sociology of law. This is obvious as far as general sociology is concerned.161161. I am thinking of the writings of, for example, Durkheim, Weber, Homans and Coleman.View all notes To the extent that criminology, law and economics, legal history, and the biological or psychological study of law concern themselves with social (i.e. regulated) behavior, they are part and parcel of the sociology of law as I conceive it. Scientifically – that is to say, theoretically – considered, there is but one general social science whose subject is the social order for which rules and their social working are responsible. In daily life, of course, scientific considerations are often buried in a jungle of accidental traditions and institutional concerns, competition for scarce resources, rivalry, prejudices and similar theoretical irrelevancies.
4.4. The “relevance” of sociology of law
We must view with profound respect the infinite capacity of the human mind to resist the introduction of useful knowledge.162162. F. Lounsbury, quoted by F. von Benda-Beckmann (1989von Benda-Beckmann, F. 1989. “Scapegoat and Magic Charm: Law in Development Theory and Practice.” The Journal of Legal Pluralism and Unofficial Law 21: 129–148., 129).View all notes
The most general and fundamental criterion for assessing the worth of a scientific discipline is that it produce some added value relative to the everyday way of looking at its subject. If one doubts the importance of the work of someone who presents himself as a sociologist of law, what one wants to be reassured about is that he has added something distinctive to the omnipresent cacophony in social and academic life of information, opinions, positions, reflections, exposures, critiques, pleas and so forth that concern “the law”.
The objective of every science is the explanation of observable variation in the world around us. A scientific explanation involves showing that the differences to be explained can be seen as instances of a general theoretical proposition. The ultimate added value of scientific work lies thus in the theory it produces. The added value of sociology of law is to be found in empirical theory about rules, their causes and their social working.
Against the background of the foregoing assumptions, it is distressing to find oneself largely in agreement with the recurrent complaint made of sociology of law (and more generally, of the social sciences), that it has produced so little accumulation of theory.163163. Compare Friedman (1986).View all notes Enormous efforts have been spent on the collection of data concerning “law”, but most of this work has not led too much in the way of general insight. The complaint comes down to this: what is generally called “empirical research” consists largely of the collection of information thought to be relevant to some question of policy. The shelf-life of such information ends when the policy-maker one has in mind (often an institution that funded the research164164. In other sciences, in particular medicine and related disciplines, a financial tie of a researcher to an institution with an interest in the results would generally be taken to raise questions about those results. It is presumably only a matter of time before sociologists of law are forced to be more circumspect concerning conflicts of interest and other threats to the integrity of science.View all notes) uses or (more commonly) ignores it, which helps to explain why so many of the products of empirical research by sociologists of law are of interest to no one shortly after they are published. The fact that when asked to explain or predict some sort of legal behavior, a sociologist of law usually has no answer at hand (for this, he would need a general theory on which to base an answer), contributes, I believe, to the rather low esteem in which knowledgeable outsiders hold the discipline. Contrast this with law and economics, which is rich in theory (unfortunately, much of it probably false or tautological165165. Cf. Ellickson (1991Ellickson, R. 1991. Order Without Law: How Neighbors Settle Disputes. Cambridge, MA: Harvard University Press.); Griffiths (1995Griffiths, J. 1995. “Normative and ‘Rational Choice’ Accounts of Human Social Behavior.” European Journal of Law and Economics 2: 285–299.); Sunstein (1996Sunstein, C. 1996. “Social Norms and Social Roles.” Columbia Law Review96: 903–968.).View all notes), and therefore in a position to predict and explain social behavior with a great deal of (often undeserved) self-assurance, thereby making itself vulnerable to falsification – something that can too rarely be said of what is called “theory” in the sociology of law.
Such criticism can of course be exaggerated. The “relational distance” proposition predicts, to give one example among many, that increasing the size of social units (villages, prisons, apartment buildings, schools and so forth) will give rise to order-maintenance “problems” and hence to reliance on relatively “expensive” differentiated agents (police etc.).166166. Cf. §2.2.2, text box on differentiation.View all notes Sociology of law is furthermore rich in insights which may not amount to explanatory propositions but at least caution against easy and common mistakes in thinking empirically about the social working of legal rules: concentrating on the special effects rather than the general effects of judicial decision-making;167167. Cf. e.g. Holleman (1973Holleman, J. 1973. “Trouble-Cases and Trouble-Less Cases in the Study of Customary Law and Legal Reform.” Law and Society Review 7: 585–609.); Griffiths (2003Griffiths, J. 2003. “The Social Working of Legal Rules.” The Journal of Legal Pluralism and Unofficial Law 35: 1–84.).View all notes assuming that adjudicated “cases” tell one much about typical legal interactions of the sort concerned;168168. Cf. e.g. Ehrlich (1936Ehrlich, E. 1936. Fundamental Principles of the Sociology of Law. Translated by W. L. Moll. Cambridge: Harvard University Press.); Macaulay (1963Macaulay, S. 1963. “Non-contractual Relations in Business: A Preliminary Study.” American Sociological Review28: 55–67.); Todd (1978Todd, H. 1978. “Litigious Marginals: Character and Disputing in a Bavarian Village.” In The Disputing Process – Law in Ten Societies, edited by L.Nader and H. Todd, 86–121. New York: Columbia University Press.).View all notes ignoring the impact of legal pluralism on the “effectiveness” of “law”169169. Cf. Griffiths (2003Griffiths, J. 2003. “The Social Working of Legal Rules.” The Journal of Legal Pluralism and Unofficial Law 35: 1–84.).View all notes and so forth.
The significant contribution that the sociology of law could make to policy-making lies in the production of powerful, well-tested empirical theory. It makes no difference whether the first inspiration for this lies in colonial Africa, in ancient Rome, in an American business or apartment complex, or in an intensive care unit in the Netherlands, whereas it does make a difference that it has been tested in those and other social situations. In the development of such theory, the demand for “relevance” that sponsors, funding agencies and research bureaucrats seek to impose on social–scientific research is a fundamental obstacle (worst of all, it is an obstacle that has been very largely internalized by the oppressed – “false consciousness”, some would call this). A powerful theory of the “social working” of rules, for example, would be of enormous social utility, although a policy-maker (or the man or woman in the street, including most of one’s colleagues in a university) will usually be unable to imagine the “relevance” of the various small scientific steps in the direction of such a theory, many of which concern societies far removed in time and place from where they happen to live, or aspects of our society that seem too “obvious” or banal, or on the other hand too “exotic”, to deserve serious attention.
In short, the more sociologists of law – like any other empirical scientists – ignore the demands of “pure science” in order to produce “socially relevant” results, the more funding they will get for their research but the less they will contribute to theoretical progress, and hence to the only really “useful” thing a science can bring forth.