The discipline of sociology does not hold a monopoly on efforts to unveil the connections between law and society. In the twentieth century, Roscoe Pound, Jerome Frank, and other legal scholars abandoned legal formalism and created new ways to understand the differences between the “law in the books” and the “law in practice” (for a concise overview of both developments, see Hunt 1978). Since the late 1970s, the critical legal studies movement and its variants have emerged as a major competitor to legal formalism in legal research and education (Kelman 1987). For example, Freeman (1978) examines how major Supreme Court decisions on civil rights have shifted the bases for legally defining discrimination from the consequences for the victims to the intentions of the perpetrators. Freeman shows how the law’s emphasis on the actor’s intention constrains the principle of equal protection and perpetuates inequality. While his conclusions are radical, his method is identical to the legal formalists’ practice of textual interpretation (Trubek 1984). Critical legal studies’ doctrinal analysis—its reliance on interpretation of constitutions, statutes, and judgments—has more affinity with literary criticism than with sociological methodologies based on the observation of events. For an example of this distinction, compare Klare (1978) with Wallace et al. (1988). Sociology of law is distinguished more by its methods than by its theories or subject matter.
On the basis of the development of social values and common rules of behavior we may distinguish three types in the sociological approach to law:
1) the classical sociological approach, which is characteristic of traditional society;
2) the modern sociological approach, which is characteristic of industrial society;
3) the post-modern sociological approach, which is based on maximizing individual welfare. The sociological approach is essentially practical and expresses the relationship between society a well as its individuals and groups with law. The classical sociological approach to law emerges as the legal order of the state is gradually replaced by the legal order based on customs.
The development of the modern sociological approach to law can be divided into two stages:
1) The stage of developing a democracy, where order is established by means of laws and successive legislation. Members of society are expected to voluntarily obey the legal order of the state. Thus legislation is based on increasing knowledge about the reality of law. Knowledge of “legal realism” is a stimulus for the sociology of jurisprudence and the development of the sociology of law.
2) The stage of using modern law as an instrument of creating the modern state. In the process of symbiosis between democracy and modern political thought jurisprudence has created the notion of law as an instrument of social change. This notion has put together two variables – the growing power of the modern state and social change. Modern law is considered only an instrument of the state’s political power and its efficiency is determined by the concentration of political forces, independently from the support of other systems of social regulation. Analyzing the sociological approach to law has lost its relevance.
This explains the negative consequences of society’s legal culture:
1) the unconditional endorsing of the instrumental approach to law;
2) the weakening of the link between society and law. The weakening of the link between society and law is particularly hazardous because individuals’ voluntary obedience to the rule of law gives basis for the existence of society as such.
SOCIAL ORIGINS OF LAWS
A substantial number of historical case studies (e.g., Hall 1952) have traced the social origins of substantive and procedural law. Sociology enters these investigations with a broader comparative agenda, formulating and assessing general theories of the origin of law. Chambliss’s (1964) analysis of six centuries of vagrancy laws as a ruling-class manipulation of criminal law to control labor was a pioneer of contemporary efforts to puruse this line of investigation. Hagan (1980) provides a representative overview of the subsequent sociological analyses of the origins of alcohol and drug prohibition, sexual psychopathology and prostitution laws, and probation. Humphries and Greenberg (1981) produced one of the few sociological efforts showing the relationships among disparate legal changes and linking those changes to their social bases. They explain the diffusion of juvenile courts, probation, parole, and indeterminate sentences in terms of the shift in the political domination of corporate versus competitive capital during the Progressive era. An alternative approach to the study of the creation and diffusion of legal innovation looks to cultural transmission and organizational linkages rather than to underlying economic or social transformations. Grattet et al. (1998) show, for example, how the diffusion of hate crime legislation appears to be influenced by interstate processes of diffusion rather than by local conditions of the economy and society. Soule and Zylan (1997) similarly explore structural and diffusion factors in the reform of Aid to Families with Dependent Children (AFDC) eligibility rules. In terms of both theory and method, the sociology of law offers a rich body of work that reveals the social foundations of change in the law.
SOCIAL STRATIFICATION OF LAW
The most prominent aspect of social structure in sociological investigations of law is stratification. In his early essay On the Jewish Question, Marx examined how a legal system that made all litigants equal before the law left them unequal in economic resources and social relationships. Much current research has been devoted to finding new evidence showing how formal legal equality reproduces social hierarchies. Galanter (1974) points out how the organizational properties of the legal system reinforce and in some instances generate inequality. Apart from the extralegal resources they bring to the dispute, repeat players (corporations and career criminals), for example, gain knowledge, skills that are not available, and networks denied to one-shot players. Feeley (1979) found that in a misdemeanor court “the process is the punishment”: For the poor, the costs of conviction were minor compared to the costs imposed by the pretrial stages of the process. Shapiro (1990) developed similar insights into the way in which the rules of evidence and organizational priorities of law enforcement bureaucracies create class differences in the punishment of white-collar crime. These studies go beyond the populist notion that the law is like a cobweb that catches the small flies but lets the large bugs go free. Individual resources matter, but sociological research shown how organizational and institutional contexts shape the manner in which equality before the law results in inequality after the law.
The largest body of research in the field has been devoted to the examination of discriminination in sentencing in criminal courts. Disparities in the type and duration of sanctions vary markedly by class, race, and/or ethnicity, and gender. For example, with 5 percent of the general population, young African-American males account for nearly half the admissions to state prisons. The initial research problem was to determine the extent to which such disparities represent differential involvement in the kinds of crime that lead to more severe sentences or reflect biases in discretionary decision making in the legal system (for a succinct overview of this research, see Walker et al. 1996). The sociologically relevant discoveries of this research include covariation in the extent of discriminatory decision making with social location (see Myers and Talarico 1987).
SOCIAL IMPACT OF LEGAL CHANGE
Brown v. Board of Education (1954) is perhaps the most celebrated Supreme Court decision of the century. It marked the end of over half a century of the Court’s acceptance of legalized racial segregation as being consistent with the constitutional requirement for equal protection under the law. It is usually the case one associates with the conviction that law—Supreme Court decisions, in particular—powerfully shapes social change. Less widely recognized is the fact that in the decade after Brown, racial segregation in public schools remained virtually unchanged. The sharpest challenge to conventional conceptions of the social impact of law is Rosenberg’s (1991) study of the effect of Supreme Court decisions on school desegregation, abortion, reapportionment, and criminal procedure.
While current controversy centers on Rosenberg’s thesis, several other research programs address the conditions under which legal reforms engineer social change. Burstein (1985), for example, specifies the contingencies that influenced the impact of civil rights legislation on the economic position of minorities. Horney and Spohn (1991) examine the impact of rape reform laws in six jurisdictions on several indicators of prosecution. The measurable impact of legal reform proved to be limited, because of the response of local court organizations to externally imposed change. Heimer (1995) illustrates that similar complications appear when legal changes are imposed on hospital work groups. Organizational responses occasionally facilitate rather than inhibit change. Edelman et al. (1992), for example, found that personnel departments tend to exaggerate the legal risks of noncompliance in equal-opportunity cases as a way to enhance their power within the corporation.
ORGANIZATIONAL CONTEXTS OF LEGAL PROCEDURES
A public defender explained to Sudnow (1965) that to work in such an office, one has to know the law—and the ropes. Learning about the organizational ropes of courts, police departments, and law offices has been the objective of a large body of contemporary research in the sociology of law.
Albonetti (1987) utilizes organizational theories to explain variation in the decisions of prosecutors to drop cases or reduce charges; apart from the legal evidence, prosecutors’ decisions are shaped by extralegal factors that govern their uncertainty about winning a case at trial. Ofshe and Leo (1997) investigate the coercive persuasion that continues to occur in post-Miranda police interrogations. Police investigators generally follow the letter of the Miranda rules while continuing to practice forms of coercive persuasion that induce most suspects to waive their rights and confess.
Many discoveries about procedure turn on the emergence of informal organizational rules and relationships. Sudnow (1965) found that plea bargains were forged in a common currency of offense seriousness that existed apart from the penal code’s definitions of crimes and punishments. Emerson (1969) showed how the legally relevant aspects of a juvenile’s offense and career are organizationally transformed into judgments of character, which then become the real bases for determining verdicts and imposing sentences. This work suggests that due process is a variable whose appearance and effects are shaped by organizational contexts (see Dobbin et al. 1988).
THE ROLE OF GENERAL THEORY IN THE SOCIOLOGY OF LAW
The sociology of law can be distinguished from economics, psychology, and other social scienceenterprises that have law as their subject matter principally in terms of its integration of its investigations with general theories of social structure. The role of general theory becomes apparent, for example, in comparisons of Japanese and U.S. legal systems that “explain away Japan by attributing every finding to ‘Japanese uniqueness’ [rather than] treat Japan as a point on a universal continuum” (Miyazawa 1987, p. 239). The case for engaging in the search for such universal continua is made by Black (1976, 1997).
Much current research, however, continues to be guided by one or a combination of the four general theories that initially defined the field. Bentham’s utilitarian philosophy underlies rational choice theories of the behavior of law. Studies of deterrence at both individual and organizational levels of analysis continue to pursue this line of theorizing (see Vaughn 1998 for a summary and critique of organizational analysis). Alternatively, the sociological theories of Marx, Durkheim, and Weber articulate properties of social organization that shape and constrain the choices of persons and firms (for an overview, see Garland 1990). Work in the sociology of law thus not only illuminates the institution of law in unique ways but contributes more fundamentally to basic knowledge about human social organization.