John Griffiths
Sociology of Law, Faculty of Law, University of Groningen, Groningen
5. Other perspectives and different questions
In this essay, I have described and defended a particular conception of the sociology of law, one that has guided my work as a sociologist of law for almost half a century. Over the years, I have become more self-conscious about it, and, I like to think, more consistent. Although, like all post-Lapsarians, I am to some extent an opportunist and have therefore not always been faithful, I have never doubted that this conception provides the critical standards by which the work of a sociologist of law should be judged.
Many colleagues who consider themselves sociologists of law have quite different ideas from mine about the nature of the enterprise and the relevant critical standards. I do not regard the ideas I have sketched here as a program for purging the ranks. I have simply sought to formulate some ideas that guide my own work and that of colleagues who share my perspective (although they might not express the ideas in quite the same way). The demands of such a perspective are relevant for those who hold it, in particular for and among themselves. There are other perspectives from which one might study law as a social phenomenon. Over time, each perspective can be assessed for its internal coherence, its capacity to stimulate further thought, and ultimately in terms of the most general criterion for all scientific work: does it lead to accumulation of insight? My personal conviction is that the perspective set out here will survive such an assessment and most of the others will not. But until the “proof of the pudding” is in, there is only one reasonable position to take: “Let a hundred flowers bloom, let a hundred schools of thought contend.”170
“Ça, c’est mon point de vue.”171
Acknowledgements
The gestation of this essay goes back, in the most general sense, to my undergraduate years in the 1960s (see Griffiths 2017), but more specifically to the early 1990s when I first formulated some of the ideas in a form still recognizable here (Griffiths 1992). I cannot possibly remember all of those who have enriched or corrected the argument in one way or another over all the years it took to assume its present form. Of special importance were Donald Black and Richard Abel, colleagues at the Yale Law School in the late 1960s, who got me started in the sociology of law as a distinct discipline; my exchanges with them over the years have continued to have an important influence on the development of my own thought. In more recent years, (graduate) students with whom I have worked intensively on their own projects as well as on my own have made innumerable contributions to the body of ideas expressed in the article.
With apologies to those whom I undoubtedly overlook, I want to mention in specific connection with this ultimate version of this article: the late Els Baerends (for initiating me into the literature on the biology of morality); Erhard Blankenburg (for calling my attention to Geiger’s conception of law as a continuous variable); Keebet von Benda-Beckmann (in particular for several very stimulating conversations concerning the questions whether social rules presuppose language, and the infelicity of the term “social control”); Albert Klijn and Heleen Weyers for innumerable discussions over the years concerning the nature of sociology of law and for many improvements in this version of the argument; Graciela Nowenstein for her sharp criticism of the lack of focus in a previous version, which led to a radical revision; and Rick Abel for many useful suggestions and corrections. Gordon Woodman and Keebet von Benda-Beckmann, in the role of editors of the final version, made many important suggestions for improvement. Finally, I would like to thank the participants in a colloquium at which this article was discussed (Garnwerd, Groningen, the Netherlands, 24 May 2017) for the spirited and critical reception they gave it.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. For a rare exception, see Ehrlich (1936): “the theoretical science of law” (25) concerns the “inner order of … social associations” (37). See also Black (1993, 2): sociology of law is a part of the sociology of social control, that is, “how people define and respond to deviant behavior”.
2. 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.
3. Macaulay (1963, 1977, 1985, 1995, 1996).
4. See e.g. McNiel (1985).
5. 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 (1993) on social norms concerning when it is appropriate to go to court over a neighborhood dispute.
6. Compare Adams and Griffiths (2012).
7. This position is largely implicit in Black’s work (see e.g. Black 1976, 1993). In a letter to Griffiths in connection with Griffiths (2003) (see Griffiths 1996, 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.
8. On ‘stratification’, see e.g. Ross (1901).
9. For studies of social control in which “relational distance” plays a key role (albeit under different names), see e.g. Malinowski (1926), Schwartz (1954), Gulliver (1963), Gluckman (1973), Todd (1978), von Benda-Beckmann (1984), Ellickson (1991). For further discussion of the concept and its place in the sociology of law, see Griffiths (1984a, 66).
10. See e.g. Black (1980).
11. Searle (1995, 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.
12. The sociology of law studies social control at the group level (taking account of the “nature of the beast” but ignoring individual-level variation). It differs in this respect from the psychology (and perhaps, someday, the neurology) of rule-following at the level of individuals.
13. 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 1984c). See further §3.3.1.1.
14. 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).
15. Hart (1961, 55–56, 86–88, 99). See Tamanaha (1996) 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).
16. See Hart (1961, 89–96, 113); compare Searle (2010, 97). See further §3.3.2.
17. Cf. Nowenstein (2010), 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.
18. Cf. the controversy about this between the anthropologists Bohannan (1965b) and Gluckman (1973, 375–382); for discussion, see Nader (1965) and Moore (1969a).
19. A purist might try to avoid this problem by inventing an entirely new descriptive vocabulary, but doing this took several millennia in physics and a number of centuries in the rest of the natural sciences, so that for the time being the sociology of law is probably stuck with the very imperfect concepts of natural languages.
20. Hart (1961, 87).
21. Black (1976, 2, 44).
22. Freely rendered from van Maanen (1977, 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.
23. This does injustice to those ethologists who do take account of social ‘rules’ among some non-human animals (see e.g. de Waal 1989). But see §3.2.2 for the question whether such animals can be said to have rules in the sociological sense.
24. 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.
25. 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 1961, 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 (1976, 2-3); see also 1980, passim and in particular the discussion of ”violation of the ‘law on the books’ (1976, 72).
26. 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.
27. See further §3.2 on the definition, ontology, epistemology, methodology and relativity of rules.
28. M. Bennett and P. Hacker, Philosophical Foundations of Neuroscience, Malden: Blackwell, 2003, 71 (with thanks to Henri Wijsbek for calling this to my attention).
29. Griffiths (1984a, 39).
30. This is J. Austin’s ((1832) 1965) classic definition of law, on which many others – including those of Malinowski and Pospisil (see Box 2) – are variations. Cf. Hart (1961, 25).
31. See Ehrlich, Malinowski, Hoebel, Bohannan, Pospisil (Box 2).
32. See Weber, Radcliffe-Brown, Pound, Schwartz, Selznick, Black (Box 2).
33. See Pospisil (Box 2). Llewellyn and Hoebel (1941) were very influential in promoting this conception of law, especially among anthropologists (cf. also Abel 1973b).
34. Holleman (1973). The expression “language of interaction” is taken from Fuller (1969). Ehrlich’s (1936) sociology of law shares this insight.
35. W. Shakespeare, Romeo and Juliet, Act II, scene 2. This is the functional approach to the concept of law: the term “law” refers to whatever it is that is involved in one of what Llewellyn called the “law jobs” (see Twining 1985, 175ff).
36. Pieterman (1993b, 132) (“recht is alleen recht als er recht op staat”), paraphrasing an old Dutch candy advertisement that amounts to about the same as “Coke is only Coke if it says ‘Coke’ on the label”. This is the Baron von Munchhausen [legal positivist] approach to the concept of law, named after the mythological character who sought to save himself from sinking into a bog by pulling himself up by his hair. It is the normal approach of legal scholars and uncritical sociologists of law.
37. L. Carroll, Through the Looking Glass, and What Alice Found There. London: Macmillan 1871, Chapter 6. This saying of Humpty Dumpty is the Frank Sinatra approach to defining the concept of law: everyone does it his way.
38. G. Stein, in Bartlett’s Familiar Quotations, 14e ed., 933a. This is the essentialist approachto the concept of law: it is what it is (and you know it when you see it).
39. This is the title that is part of Magritte’s painting of a pipe. It might be called the natural law approach to the concept of law (“Nazi law is not law”).
40. Hart (1961, 107).
41. See note 36.
42. Hart (1961, vii).
43. For this reason, among others (such as the latent terminological circularity it shares with Hart’s definition and its inapplicability in many cases of what is generally regarded as legal pluralism, cf. n 52), Tamanaha’s suggestion (2001, 167) that a social scientist interested in legal pluralism should regard as “law” in any social group that which “sufficient people with sufficient conviction consider … to be ‘law’…” is unusable for purposes of sociology of law.
44. Black (1976).
45. For an example of such an approach, see Griffiths (1984a), justly criticized for this by van den Bergh (1986, 380–382).
46. Austin (1961, 149).
47. Abel (1973b) is one of the few who have seriously confronted the question whether “law” is a suitable theoretical concept in the sociology of law. His pessimistic conclusion anticipates the conclusion reached here (224): “[f]or the time being, at least, it seems clear that we must displace law from the center of our conceptual focus as we attempt to build social theory”.
48. Compare Moore (1969b) for an extensive overview of the anthropological literature on the concept of law; see also F. and K. von Benda-Beckmann (2006).
49. Other taxonomic conceptions of “law” see it as a special case of commands (Austin), rules (Hart, Malinowski), politics (cf. Gulliver 1963, 299) or positive morality (“social norms”: Hoebel). For F. and K. von Benda-Beckmann (2006, 12), “law” is a special case of “objectified cognitive and normative conceptions for which validity…is authoritatively asserted”.
50. There is also no reason to suppose that either group of settlers would have regarded the social control in their settlement as “law” – they probably reserved that term for the “law” of the Israeli state. But to be clear about the matter: pace Tamanaha (see n. 43), their “internal” point of view on the matter is not relevant as far as an empirical concept of law is concerned.
51. The formulation of the ‘relational distance proposition’ in Griffiths (1984a) (discussing Schwartz 1954) was unfortunate in using the term “specialization”.
52. Smith (1776, Book 1, Ch. 1).
53. It is also not the case that specialization implies differentiation. One can be “specialized” in something without necessarily occupying a distinct social role to which performance of that thing is allocated: a particular sort of medical “specialist” such as a surgeon may or may not be entitled to practice (a particular variety of) surgery to the exclusion of all other doctors.
54. Differentiation plays a central role in the “systems theory” approach to sociology of Luhmann (1982), in which the “social system” as a whole is seen as differentiated into discrete subsystems. Differentiated “roles” allocate the performance of the essential social functions responsible for the various distinct subsystems (“religion”, “politics”, “economics”) over the population. Luhman emphasizes the idea of society as a self-differentiating system that becomes ever more complex as it continually proliferates subsystems to deal with an environment of increasing complexity. Stripped of its essentialist/functionalist assumptions and the jargon of “systems theory” (and an occasional evolutionary assumption such as “stages of differentiation”), and of a tendency to confuse specialization with differentiation, the “systems” approach seems much the same as that proposed here: differentiation refers to the existence of distinct roles (defined, I would add, by social rules) for the performance of distinct social tasks. For a rather different use of the term to denote social divisions based on things like class, age, ethnicity, etc., see e.g. Juteau (2013).
55. Schwartz’ formulation of the theory is in embarrassingly “functional” terms – societies get the sort of control they “need” – but nevertheless, after more than half a century, his analysis is still one of the most sophisticated to be found in the literature.
56. Cf. Abel (1973b, 222–224).
57. Cf. Abel (1973b, 221), arguing generally against the use of dichotomies in the sociology of law. His argument has not received much attention and the use of dichotomies remains ubiquitous. Black’s theory, as he formulates it, is typical in this regard: all social control is either “governmental” or “informal” (Black 1976). Such an approach stands in the way of powerful theory. Black’s “relational distance” proposition (see text at n 9 above), for example, would be far more powerful if formulated in terms of two continuous variables: “differentiation” in social control and “relational distance”. Many contributions to litigation theory similarly make use of dichotomous variables: Galanter (1974) distinguishes between “one shotters” and “repeat players”, Todd (1978) between “insiders” and “marginals”, Merry (1982) and many others between “mediation” and “adjudication”, Gluckman (1973) and others between “simplex” and “multiplex” relations, Gulliver (1963, 299) between “political” and “judicial” dispute processes and so forth. The observations of such authors concerning matters “legal” could easily be formulated in a continuous way, for example, in the case of Todd and Gluckman, by using the continuous variable “relational distance”. Similarly, exchange relationships need not be classified as “contractual” or “non-contractual” but rather, as Macaulay’s (1963) analysis implies, as “more or less contractual”. Such differences of formulation may seem trivial at first sight, but in practice the consequences of discontinuous formulation have got profoundly in the way of theoretical progress in the sociology of law.
58. “The lonesome death of Hattie Carroll”.
59. I first formulated the following idea in Griffiths (1984a). There are, of course, earlier suggestions that point in a similar direction (see e.g. Blankenburg 1980; cf. Abel 1973b, 244–251).
60. The idea that it is differentiation in the sense used here that distinguishes “law” from other social control is latent in the approaches of a number of authors in Box 2, in particular Hoebel (1954, 26–27) but also, less explicitly, Weber, Malinowski, Radcliffe-Brown, Selznick and Black.
61. It is of course not the case that all social control for which a state is responsible is equally differentiated, nor that social control by a state is always more differentiated than non-state control, nor that social change is always in the direction of greater differentiation, although the “evolutionary” idea often more or less latent in the sociology of law assume that it is (see for an explicit example, Schwartz and Miller [1964]).
62. Compare Geiger (1947). The idea that differentiation is the key to an empirical concept of law is related to Hart’s (1961) idea that law is to be distinguished from other forms of social control by the fact that law knows not only “primary rules” that regulate social behavior but also “secondary rules” concerning the use of the primary rules (validity, change and adjudication), although Hart seems mistaken in supposing that secondary rules are unique to “law”. See further §3.2.2.
63. Cf. Macaulay (1963, 1977, 1985, 1995).
64.If this is convenient, for example, in conversations with or interviews of non-specialists, it is always possible to refer to all social control above a given level of differentiation as “law”. Cf. Moore (1973, 745) and Galanter (1981, n 16) for such an approach. It may also sometimes be handy to use the term “law” as a pars pro toto to refer to social control at various different levels of differentiation (as in “sociology of law” or “legal pluralism”). There is no objection to a certain amount of this sort of conceptual sloppiness, so long as when one lapses temporarily and for good reasons from conceptual rigor, one remains fully aware of what one is doing and its risks. What is important is that such a folk concept of law be resolutely banned from the professional heart of the discipline: theory.
65. The group’s secondary rules will generally afford ways of dealing with or eliminating such inconsistencies.
67. In an earlier essay, The social working of legal rules (Griffiths 2003), I dealt from this perspective with one of the key questions for the sociology of law: how does a theoretical emphasis on pluralistic social control contribute to understanding how, when and why people follow rules, “legal” or otherwise. The expression “legal rules” in the title I now regard as unfortunate because it obscures the crucial role of legal pluralism in the social processes through which all rules – “legal” or otherwise – have behavioral effects.
69. H. L. Mencken, A Mencken Chrestomathy, New York: Knopf, 1949. Compare Hoffman (1977, 123) (formulating Mencken’s bon mot as follows: “the general expectation that people often have, without necessarily being aware of it, that their actions are constantly under surveillance … [with the result] that the individual often behaves in the morally prescribed way even when alone, in order to avoid punishment”).
70. Hobbes (1651, 82). Hobbes proposed an analysis of social order, not its history. The suggestion in some of the social contract literature that there actually once was a moment when human beings sat down together and agreed to establish social order – or, as in the case of Coleman (1990), that the emergence of the rules essential to social order can be explained as the outcome of “transfers of rights” by rational actors pursuing their individual self-interest – is just a metaphor gotten out of hand. See further Griffiths (1995); compare Sunstein (1996) for a similar criticism of the state of nature/rational actor approach to the emergence of social norms; cf. also Hardin (1968, n 74). Another approach to the origins of social rules seems more plausible. Rules as a way of coordinating social life presumably have an evolutionary basis, existing in latent form among primates and hence from the beginning among human beings, who took advantage of language to formulate them and to do all the things with rules that secondary rules make possible. There has thus never been a “norm-free” state of nature among humans.
71. There are other possibilities, as the birds and the bees illustrate. But maintenance of social order with rules is a good deal more flexible and adaptable and undoubtedly has a considerable evolutionary advantage, at least for a “higher” ape. Which is, of course, not to suggest that the mechanisms available to other species (chemistry, instinct) are not also responsible for some of the ordered behavior observable among humans.
72. Paraphrasing Fuller (1964, 91), referring specifically to “law”.
73. See Ross (1901) for an early use of the concept of social control.
74. The impossibility that collective goods like property or other institutions can be accounted for in terms of self-interested “rational choice” was famously demonstrated by Hardin (1968). Hardin’s argument is simply generalized here to all of social order (compare for general theoretical analyses, Olson [1965], Elster [1989]; and see more generally on the question of “common property” McKay and Acheson [1987], Ostrom [1990]). See §3.3.1 for further discussion of the emergence and change of rules.
75. “(M)en state norms, as they perform other actions, because the results are often rewarding” (Homans 1974, 97).
76. Two useful accounts of “socialization” (i.e. learning rules) are Schwartz (1954) and J. F. Scott (1971). Schwartz describes how new members of a group can learn the group’s rules without ever having heard them articulated: by observing the behavior of others and by being sensitive to the reactions of others to one’s behavior; one of the agrarian settlements he studied selected candidates for membership on the basis, among other things, of their capacity to learn rules without being told what they were. Scott defines the learning (“internalization”) of a norm as follows: “a person … [has learned] a norm to the extent that (other things being equal) he conforms to it at a spatial or temporal remove from sanctions” (Scott 1971 (xiii); compare Coleman (1990, 292–299). Learning other kinds of behavioral rules can be compared with learning a language (speaking and understanding a language being a matter of following social rules). There may well be a genetic basis for such learning – for the capacity for and the limitations upon learning this sort of thing – and such a genetic basis may entail that only certain sorts of rules can be learned. Compare Chomsky (2007) on the learning of language.
78. See Hart (1961), discussed in §3.2.2.
79. Professor of Theoretical Astrophysics at the University of Leiden. The quotation is from Icke (2009, 107–108) [transl. JG].
81. E.g. Pospisil (1971); Llewellyn and Hoebel (1941); Gluckman (1973, 1965).
82. See e.g. Malinowski (1926); Schwartz (1954); Ellickson (1991, 2008); Coleman (1990).
83. “Social rule” is, in the context of the sociology of law, a tautology, but it is sometimes a useful one since it emphasizes what is essential.
85. Homans defines a “norm” (what I call a “rule”) as “a statement specifying how a person is, or persons of a particular sort are, expected to behave in given circumstances….” (Homans 1974, 96); compare Winch (1963); Searle (1995, 2010). In general, a group’s rules only apply to the behavior of its members. There are, of course, partial exceptions and qualifications to this based on territoriality (groups may require strangers to abide by their rules when on their turf), on extraterritorial rules, on the emergence of virtual or meta-groups like “mankind” in the case of crimes against humanity, and so forth. None of this seems important in connection with the present discussion of the concept of a rule.
86. Cf. Hart (1961, 7) (rules “withdraw certain areas of conduct from the free option of the individual to do as he likes”).
87. The line between enforcement of a social rule and the exercise of pressure to secure private preferences is a thin one, the choice to enforce a rule being itself to some extent a matter of personal preference (cf. Macaulay 1963).
88. See e.g. Macaulay (1963) for a description of the informal – relatively undifferentiated – sanctions that support the extra-“legal” contracting behavior (and the mutual trust involved) of American businessmen. See Bernstein (1992) for the somewhat more differentiated but still mostly “non-legal” regulation that regulates transactions in the (international) diamond industry, thereby making possible the mutual trust on which the industry depends. Bernstein shows how adherence to the group’s rules rests in the first instance on the fear of damage to reputation, which would affect both one’s ability to trade in diamonds on the basis of trust but would also entail risk to pleasurable association with others and to one’s self-esteem. See also Ellickson (1991); Coleman (1990, chapter 5); Engel (1993) (relations between neighbors).
The common post-Macaulay explanation – “efficiency” – for the use of “informal” dispute mechanisms is criticized by Feldman (2006) in his study of the “Tuna Court” of Tokyo. This institution, established by the city government to deal with disputes over the quality of tuna sold on auction, is apparently used at least as readily by tuna buyers as Bernstein’s diamond traders and Ellickson’s cattle-rearing neighbors use the “informal” institutions available to them. Feldman’s “falsification” does give important support in a rather exotic setting to the “relational distance” proposition. Relational distance is in the Tokyo tuna market extremely low, and the Tuna Court (whatever its origin) is extremely “informal” (i.e. undifferentiated).
89. Expulsion is the ultimate sanction for failure to obey the rules of any group (cf. Schwartz 1954). In the extreme ecological circumstances of many “primitive” societies, this is in effect a death sentence; among economic actors who are heavily dependent on one another, the same may be at least metaphorically true.
90. Such authorized reactions are sometimes considered part of a full expression of the rule, or even the “real” rule (cf. Raz 1973, 83). On this view, many things normally regarded as rules are actually only indirect references to the “real” rules: the rules of marriage, for example, are “really” the prohibitions of adultery, bigamy, etc. and the requirements of mutual support and so forth. I do not see the point of such departures from ordinary usage (cf. n 94 below).
91. See Hohfeld (1946) on different sorts of rules, giving rise to different sorts of legal relationships.
92. See Vezzoni (2008) for the difficulties of assessing the social effects of legal “facilities” (in his case, the right of patients to formulate binding “advance treatment directives”). Vezzoni introduces the concept of a “vital social practice” to take the place of “effectiveness” in assessing the social consequences of such rules.
93. Sanctions are often indirect: there is nothing less “real” about the “rule against perpetuities” (which renders invalid a legal instrument that creates a future interest which only becomes effective a long time after the creator’s death) than about rules requiring or prohibiting the wearing of headscarves, although the sanctions – if one prefers: undesired consequences of failure to comply – in the two cases are very different.
94. Cf. Raz (1973), whose almost incomprehensibly complicated effort to solve the problem of the unit of “law” is ultimately, I think, unsuccessful (cf. n 90 above). One of the unsatisfactory aspects of his approach is the Kelsenite assumption that all (legal) rules are ultimately penal in character (prohibitions, with specified sanctions to be applied by a judge – Kelsen 1961).
95. See further §3.3.1 on the “quantity of law”.
99. If, as is often the case, R is not explicitly formulated as such in social discourse, a rule statement of the form “if X, then Y” can be constructed on the basis of discussions with group members and observation of actual social practice. Such a constructed rule must be recognizable to the members of the group.
100. The most generally accepted secondary rules of English spelling seem to involve reference to the authors/publishers of “authoritative” (i.e. socially so considered) dictionaries: Samuel Johnson, the Oxford English Dictionary, Merriam Webster and so forth.
101. Dworkin (1977), discussed from this point of view in Griffiths (1978); see further §3.2.4. Dworkin’s idea of a “right answer” is, of course, an internal one. For the sociologist, possible differences of opinion about the “right answer” are themselves important data.
103. Clothing rules can be very complicated, depending on the time of day and the day of the week (e.g. Friday office informality), the occasion (parties vs. funerals), the message one wants to convey, the country one is in, one’s function and status, and so forth. Clothing rules can be both prescriptive (e.g. black – or, as in Ghana, traditionally red – clothing for funerals) and proscriptive (e.g. sumptuary rules).
106. A variety of more or less subtle rules serve, for example, to distinguish between a socially acceptable “gift” and an unacceptable “bribe” (see e.g. Smart 1993, Darr 2003); cf. also Moore (1973, 725–728) on “fictive friendships”.
107. In “common-law” legal systems, and in situations in which the applicable rule is that of a (non-written) extra-“legal” source (e.g. custom, especially in situations where – as in colonial legal pluralism – the applicable legal rule can be part of the “customary law” of a “recognized” tribe or other indigenous group), judges are often confronted with the necessity of establishing the “existence” of a rule, and there is a considerable literature about how they should do this (see e.g. Woodman 1969). Perhaps even more interesting is the problem of establishing that a rule once thought to exist, no longer does: the problem of desuetude (see Harvard Law Review [2006] for an exhaustive discussion of this legal doctrine). Social scientists for whom it is important to establish the existence and precise implications of a social rule can learn much from the legal literature and judicial practice.
108. As Reisman (1999) makes clear, non-verbal exchanges can be important indicators of an underlying rule.
109. See Comaroff and Roberts (1981) for a discussion of the ethnographic literature on the invocation of rules in dispute processes. From their data concerning the Tswana of Botswana, they conclude that “most arguments [in a dispute process] are organized with implicitreference to mekgwa le melao [Twsana law and custom]. The latter constitute the indigenously acknowledged universe of discourse within which meaningful debate proceeds and the assumptions upon which it is predicated, so that the very construal of allegedly relevant facts necessarily entails tacit allusion to rule. Explication is not required to make this apparent to an audience…. [N]orms are explicitly invoked by a disputant only when he wishes to question the paradigm elaborated by his opponent and to assert control over (or change) the terms in which the debate is proceeding” (Comaroff and Roberts 1981, 102 [Italics in original]).
Observing and understanding such implicit references to rules requires a sound understanding of local meaning and context; the same is true of moral and legal discussion in every society. Compare, for example, Fallers (1969).
110. Intuition – so long as its results stand up to intersubjective testing – is often a good research tool, at least in a social group with which one has some affinity. Such educated guesswork, informed by rudimentary ideas about human behavioral preferences, can come up with a plausible rule on a given subject for a particular social group, a provisional guess that one can then check by seeing whether an outsider’s formulation sounds plausible to members of the group (cf. Ellickson 2008). Fictional accounts of human interaction in the group concerned can be useful too, since in order to be believable they have to be ethnographically accurate.
113. Cf. Griffiths (1986b, 2001) on legal pluralism.
114. T. Flannery, quoting from “an Indian friend” in a review of a biography of Rachel Carson (author of the classic of environmentalism, Silent Spring). New York Review of Books, 22 November 2012, 23.
115. The problem is not just that essentially all social groups exist in an environment full of other social groups to which their members also belong, but that even a totally isolated group (if such a thing exists) will generally have sub-groups to which various of its members belong (based, for example, on age, sex, function and so forth).
117. See in particular Scott (1998), for the environmental disaster attendant upon “Prussian scientific forestry”, together with examples of a variety of social disasters resulting from similar efforts to impose uniform “order”. See also Luttwak (1979) on the vulnerability of tidy, centralized political systems.
118. See for numerous examples, Scott (1998). See Solnit (2009), for an enthusiastic journalistic account of social behavior following disasters; compare the review of the social–scientific literature by Kaniasty and Norris (2004) for a more sober and differentiated view of “social support” in the aftermath of natural or man-made disasters.
119. For examples of otherwise sophisticated and careful scholars who appear to address very little attention to the empirical status of the social rules they discuss, see Ellickson (1991, 2008); Homans (1950); Macaulay (1963); Riesman (1999); Bernstein (1992). Their rather rough-and-ready accounts of local rules are probably generally correct, but for a dramatic and cautionary counter-example, see Orans (1996).
120. See §2.1 on the “manifestations of law”. There are theoretical propositions concerning “legal norms” (see §3.3.1), “legal behavior” (e.g. Macaulay 1963; Todd 1978), dispute processes (e.g. Abel 1973b; Merry 1982), legal organization (more or less differentiated – e.g. Schwartz [1954]; Schwartz and Miller [1964]), types of control (“status” vs. “contract” in the case of Maine [1906]; “organic” vs. “mechanical” in the case of Durkheim [1964]), and so forth.
122. See Griffiths (1984c), discussing an inaugural lecture by Schuyt (1982). Is it clear that modern man is subjected to more rules than his forebears, or has there simply been a shift from non-state rules (church, clan, guild, locality) to state law? Is the equally common supposition that individualism is on the rise consistent with the idea that individuals are subject to more and more rules? The latter question does suggest a way of operationalizing the idea of the quantity of rules indirectly as a function of the behavioral freedom of the individual, in which case I would hazard the guess that the individualism-thesis (i.e. that nowadays there is more behavioral freedom) would come out on top. See further on the “unit of a rule”, §3.2.1.
123. E.g. Engels (1893); Wittfogel (1957).
124. Adam Smith (and later, Karl Marx) are among the first seriously to have confronted this question in an empirical way (see Stein 1980, 110–111 and passim).
125. Demsetz (1967). For the more general argument that “efficiency” explains the emergence of social norms, at least in connection with economic transactions, see Coleman (1990) for the general theoretical approach and, for supposed empirical examples, Bernstein (1992), Charny (1990), Ellickson (1991). Feldman (2006), however, is skeptical.
126. See Twining (2004, 2005); Stein (1980).
127. Griffiths (2003, 70–72); cf. Sudnow (1967).
128. See e.g. Rubin and Sugarman (1993); Weyers and Bantema (2014).
130. The following discussion borrows from Griffiths (2003).
131. The debate between Rosenberg (1991) and McCann (1994), in which many others joined, on the effects of court decisions recognizing fundamental rights (against discrimination, to abortion, etc.) turned on a seemingly similar, but theoretically quite different distinction: not that between behavioral conformity to rules (direct effects) and realization of the policy objectives of those rules (indirect effects), but between direct (realization of rights) and indirect (ideological support for social movements) contributions to social change. In the first case, indirect effects presuppose direct effects; in the second case, indirect effects are an alternative for direct effects.
132. That rule-following behavior takes place of course does not necessarily entail that the behavior concerned is fully determined by the rule. Rules are not always entirely effective, but the required behavior may take place anyway. Furthermore, regulation often leaves room for an element of “free” choice, in which self-interest, imitation and so forth can play a role (although, as Sunstein [1996] emphasizes, the “freedom” of such choice can often be exaggerated if one ignores the social rules that guide it – a mistake, in Sunstein’s view, characteristic of “rational choice” theories; compare Henrich [2000] and Henrich et al. [2005] for interesting cross-cultural experimental falsifications of the hypothesis that self-interest – as opposed to social rules – can account for social behavior: “there is no society in which experimental behavior is fully consistent with the selfishness axiom” (2005, 797).
133. See Kagan and Skolnick (1993); Weyers and Bantema (2014).
135. See Schwartz (1954) on the vicarious learning of rules.
136. Scott (1971, 92) (for whom this is the definition of a “norm”).
137. See Scott (1971). Scott argues that in the absence of a continuing perceived chance of sanctions, such internalization will gradually diminish.
138. See Cialdini (1991) and Cialdini and Goldstein (2004) for extensive experimental evidence in support of the idea that if a person’s attention is called to a relevant social rule, the chance of his following the rule dramatically increases.
139. This example derives from a conversation many years ago with a rat-exterminator in Washington, DC, in which he explained why – according to him – it is so difficult to eradicate rats with poison.
140. For a detailed observation study of how a domestic cat teaches her kittens how to catch a mouse, see Baerends-van Roon and G.P. Baerends (1979).
141. Cf. on “moral development” Piaget (1932); Kohlberg (1958, 1969); Gilligan (1977).
143. F. von Benda-Beckmann (1989).
144. The foregoing discussion borrows from Griffiths (1995).
145. See above, note 7 and accompanying text.
146. See §1.2. However, hard Black insists, in his major study of the behavior of the police, that “the written law seems to have limited value as a predictor of what the police will do from one case to the next” (1980, 186), it is clear from the observations he reports that this is an exaggeration based on a very narrow conception of the behavior relevant to such a conclusion. While it is true that the police do not uniformly and mechanically apply all relevant legal rules, it is also true that their behavior is by no means an anarchic application of brute force, as if the applicable legal rules were irrelevant.
147. Goffman’s (1969) concept of “interaction rituals” nicely captures the importance of many such rules for everyday encounters. Cf. also e.g. Coleman (1990); Ellickson (1991, 2008); Goffman (1967); Riesman (1999).
149. Van den Bergh (1985, 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.
150. This section derives in significant part from Griffiths (2005).
152. 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”.
153. This conception of sociology is exemplified in the work of Homans (in particular, The Human Group, 1950). In modern sociology of law Moore’s (1973), 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 2003) 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 1936) and “rechtsgemeenschap” [legal community] (van Vollenhoven 1981) – have their virtues, but at the cost of suggesting too close an affiliation with “law” in the everyday sense.
154. 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.
155. 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.
156. See Weber (1954); Durkheim (1964).
157. See Griffiths (1986a) and F. von Benda-Beckman (2009) for more extensive discussions of the relationship between anthropology of law and sociology of law.
158. Compare, for example, the approach to legal effectiveness of the sociologist Aubert (1966) with that of the anthropologists Moore (1973) and Collier (1976). To every such generalization there are of course exceptions, and the sociologist lawyers Macaulay (1963) and Galanter (1981) come immediately to mind.
159. Ehrlich (1936) is a notable exception to the general indifference to legal pluralism characteristic of sociologists of law.
160. See e.g. Nader (1965); Pospisil (1971); Abel (1973b); Moore (1969a); Gulliver (1979); Bohannan (1969); Merry (1982).
161. I am thinking of the writings of, for example, Durkheim, Weber, Homans and Coleman.
162. F. Lounsbury, quoted by F. von Benda-Beckmann (1989, 129).
164. 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.
165. Cf. Ellickson (1991); Griffiths (1995); Sunstein (1996).
166. Cf. §2.2.2, text box on differentiation.
167. Cf. e.g. Holleman (1973); Griffiths (2003).
168. Cf. e.g. Ehrlich (1936); Macaulay (1963); Todd (1978).
170. Attributed to Mao Tse-Tung. Some readers may recall with misgivings another remark Mao allegedly made in the same speech, concerning “enticing snakes out of their lairs”. See J. Chang, Wild Swans. New York: Simon & Schuster, 1991, 211–212.
171. Tchamdja Kpelinga Ata, Juge de Paix, N’Zara, Northern Togo (referring to the desirability of codifying customary law). In E. van Rouveroy van Nieuwaal, A la recherche de la justice, règlement des litiges au Nord-Togo. Documentary Film, African Studies Centre, Leiden, Netherlands (©1980, Stichting Film en Wetenschap).
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