THE SOCIOLOGY OF LAW

The sociology of law or legal sociology is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. Some see sociology of law as belonging “necessarily” to the field of sociology whilst others tend to consider it a field of research caught up between the disciplines of law and sociology.[Still others regard it neither as a sub-discipline of sociology nor as a branch of legal studies but as a field of research on its own right within the broader social science tradition. Accordingly, it may be described without reference to mainstream sociology as “the systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience”,. It has been seen as treating law and justice as fundamental institutions of the basic structure of society mediating “between political and economic interests, between culture and the normative order of society, establishing and maintaining interdependence, and constituting themselves as sources of consensus, coercion and social control”.

The sociology of law, a new science, studies human behavior in society in so far as it is determined by commonly recognized ethico-legal norms, and in so far as it influences them. Jurisprudence, on the other hand, studies the norms as such, from three main points of view: analytical or positive, historical, and theoretical. Other attempts to delimit the field of sociology of law, such as those of H. Rolin, W. Schoenfeld, H. U. Kantorowicz, J. Kraft, I. Kornefeld, E. Ehrlich, H. Kelsen, Max Weber, B. Horvath, L. Petrajitsky, C. Lombroso, M. Rumpf, and others, are of some value, although not altogether satisfactory. The studies of psychologists, anthropologists, philosophers of law, and jurists permit the formulation of a sociological definition of law as a complex instrument of social co-ordination synthesizing ethical conviction and political power

Irrespective of whether sociology of law is defined as a sub-discipline of sociology, an approach within legal studies, or a field of research in its own right, it remains intellectually dependent mainly on the traditions, methods and theories of mainstream sociology and, to a lesser extent on other social sciences such as social anthropology, political science, social policy, criminology and psychology; as such, it reflects social theories and employs social scientific methods to study law, legal institutions and legal behavior.

More specifically, sociology of law consists of various approaches to the study of law in society, which empirically examine and theorize the interaction between law, legal, non-legal institutions and social factors. Areas of socio-legal inquiry include the social development of legal institutions, forms of social control, legal regulation, the interaction between legal cultures, the social construction of legal issues, legal profession, and the relation between law and social change.

Sociology of law also benefits from and occasionally draws on research conducted within other fields such as comparative law, critical legal studies, jurisprudence, legal theory, law and economics and law and literature. Its object encompasses the historical movement of law and justice and their relentless contemporary construction, e.g., in the field of jurisprudence focused on institutional questions conditioned by social and political situations, in interdisciplinary dominions such as criminology, and through analysis of the economic efficiency and the social impact of legal norms.

The sociology of law, or legal sociology (henceforth SL), is an interdisciplinary field of research consisting of a large number of disparate approaches to the study of law in society. These are brought together by a common epistemology that views law as a social con­struct and argues that law and all its manifestations should be studied empirically and contextually. These approaches are, however, distinguished from each other by the way they conceptualize the ‘social’, how they employ the tools of social sciences and where they draw the boundaries of law and legality. In what follows, I try to describe the diversity of the field, account for some of its main concerns and trace the contours of its development against the backdrop of the spread of globalization and the rise of the network society. Many of SL’s original sociological premises, concepts and ideas regarding legal change and social reform were initially formulated by studying condi­tions specific to western industrial societies. The sociocultural consequences of globalization over the last three decades have, however, enhanced the ‘radicalization of modernity’, i.e. have accelerated the process which melts the apparently solid contours of the industrial society, thus paving the way for the emergence of a radical (or ‘reflexive’) form of moder­nity (Beck et al., 1994). This transformative process has affected the relationship between state, law and society (Cotterrell, 2006a; Gessner and Nelken, 2007; Priban, 2007; Twining, 2000), blurred the sharply drawn distinctions between the West and the rest of the world and transformed the sociocultural setting within which legal regulation is devised and social reform planned. The rise of the network society, which is seen here as an integral part of the globaliza­tion process, ‘has created new forms of action and interaction in the social world, new kinds of social relationships and new ways of relating to others and to oneself’ (Thompson, 1995: 4). This article asks to what extent SL has reconsidered its sociological prem­ises regarding the relationship between law, state and society to grasp the new social and cultural forms of organization specific to global societies of the 21st century.

This objective is pursued in three parts. Part 1 presents SL partly in relation to social sciences and partly in relation to law and legal studies, briefly examining some of the central debates within the field. Part 2 draws attention to the asynchronous development of SL across various countries, asking why the main body of socio-legal research continues to be produced in western countries. This part con­siders various factors which might cause this imbal­ance and also asks if socio-legal theories that are born out of studies of western industrialized societies are suitable for examining law and social order in non­western contexts. Part 3 concludes the article by arguing that the sociocultural consequences of glob­alization erode the traditional boundaries of law and legal systems, hybridize legal cultures and create new conditions for legal regulation.

It is worth noting at the outset that there are many equally valid ports of entry into the discourse that constitutes the socio-legal field. This article will adopt a methodological approach and introduce the field by accounting for the way various traditions of research have developed in response to social, politi­cal and legal changes. Those interested in the theo­retical aspect of SL will find a recent overview in Deflem (2008) and Travers (2009) (see also Banakar and Travers, 2002; Cotterrell, 2008; Podgorecki, 1991). Moreover, to avoid presenting SL as an exclu­sive field, I shall define sociology broadly to take into account the interaction between SL and social sci­ences and branches of humanities such as history (similar broadly defined approaches are suggested by Chiba, 1993: 12 and Cotterrell, 2006a: 6). This is somewhat at variance with the traditional definition of SL as a subdiscipline of sociology (see Deflem, 2008; Evan, 1980; Travers, 1993; Trevino, 2001), but, as I hope to demonstrate, a broadly conceived SL allows us to stay true to the intellectual origins of the subject, parts of which are older than the disci­pline of sociology, as well as to the aspirations of those scholars who have worked to maintain SL as an interdisciplinary space open to theoretical and methodological innovation.

Law and social engineering in industrial society

The intellectual pedigree of SL can be traced back to the works of the founders of sociology such as Herbert Spencer (1820—1903), William Graham Sumner (1840-1910), Emile Durkheim (1858-1917) and Max Weber (1864-1920), on the one hand, and jurists interested in employing social scientific methods in the study of law such as Eugen Ehrlich (1862-1922), Leon Petrazycki (1867-1931) and Roscoe Pound (1870-1964), on the other (for a presentation of pre-social scientific roots of SL, see Gurvitch, 1947: 53-155; Trevino, 2011). The first group was driven by sociological concerns and explored the development and application of law as part of efforts to describe and analyse the salient features of modern society. At the risk of oversimpli­fication, Weber employed law as a vantage point from which to study the forms of rationality and authority (cf. Weber, 1978; Hunt, 1978; Kronman, 1983), whereas Durkheim explored it as a means of describing the transformation of society from a form of social organization based on mechanical solidarity to one based on organic solidarity (cf. Durkheim, 1984; Cotterrell, 2000). The second group employed sociology as a tool to better understand law and its operations, to improve the science of law and legal education and to develop law as a more effective instrument of social engineering (cf. Banakar, 2003: 189-222; Nelken, 2009a: 1-2). These scholars criticized analytical jurisprudence for its conceptual formalism and for neglecting the role played by social forces in creating the legal order and shaping legal behaviour. They also argued that legal research, legal education and judicial decision-mak­ing should adopt the methods and insights of the social sciences to counterbalance this shortcoming. Ehrlich and Petrazycki refuted natural law theories, which ‘sought a permanent and universally valid basis for law in nature and/or divine reason’ (Banakar, 2009: 60) and contested the claims of legal positivism that stipulated a norm became a legal rule only if it was posited by the state.

From the outset, the ‘gap’ between the law and the intentions of legislature or policy-makers, on the one hand, and the social norms of organization and the outcome of legal regulations, on the other, fig­ured prominently in the works of socio-legal scholars (cf. Nelken, 1981). How these scholars conceptual­ized and studied the ‘gap’ was determined by at least four factors: first, their concept of law – whether they understood law strictly in terms of official state law or described it broadly to include norms of social organization; second, their understanding of how society was constituted and reproduced – if they saw conflict or consensus as the driving force behind social developments; third, how law and society were related together – if they regarded law and society as independent variables, one dependent of the other or as interdependent; and fourth, what methods of enquiry were regarded as most suitable for the study of this relationship – if they used qualitative methods to study micro processes or social action, or if they applied quantitative methods to explore macro processes, structural relationships and social systems. The awareness of a discrepancy between official state law and the norms used to decide disputes and organize society motivated Ehrlich to search for a form of law more in tune with the sociocultural make-up of society (Ehrlich, 1936 [1912]; for a recent collection of essays on Ehrlich’s work, see Hertogh, 2009). This initial interest in the sociological studies of law was somewhat abated during the period between the two World Wars (cf. Black and Mileski, 1973: 2), but received a new impetus in the decades following the Second World War while the social landscape underwent dramatic changes. Renato Treves and Glastra van Loon describe the revival of SL in terms of industrialization and urbanization:
‘gap’, but in his case it was conceptualized in terms of the distinction between ‘law in books’ and ‘law in action’ (Pound, 1910). For Pound, valid law consist­ed of legal rules and principles laid down by author­ities, and the distinction between law in books and law in action served to highlight the social nature of the legal process, a process which, once grasped soci­ologically, could be engineered to manufacture a tighter fit between law and the social reality it tried to regulate. For Ehrlich, however, a norm could acquire a sense of legality even though it had not been laid down by the state. Instead, a norm gained legal authority when it dominated ‘life itself even though it has not been posited in legal propositions’ (Ehrlich, 1936: 496). These social norms he called ‘living law’ (for a comparison between Ehrlich and Pound’s concepts of law, see Nelken, 1984).

The general development of industrialisation and urbanization, the increase in social mobility, and the great economic and sociological transformations which have taken place since the end of the Second World War … have drawn attention, with increasing emphasis, to a number of pressing needs: The need to study the relations between static and often anti­quated legal systems and the continually changing social structure; the need to appreciate how law and the various practitioners of law operate within socie­ty; the need to examine public attitudes towards the current legal situation and to calculate and forecast the consequences of possible legislative reforms. (Treves and Glastra van Loon, 1968: 1)

Thus, SL emerged as a distinct field of research after the Second World War and consolidated itself in West European and North American universities from the mid-1960s. Building on the legacy of legal realism, the law and society movement in the US promoted social scientific studies of law in response to the need to introduce moderate social reform through public policy in areas such as ‘the civil rights movement, the War on Poverty, and the rights expansion of the Warren Court’ (Trubek, 1990: 9). The founders of law and society were, according to Trubek (1990), mainly liberal minded ‘legalists’, who were committed to social justice, but also ‘believed that most of the “flaws” in American socie­ty could and would be corrected through legal means’. In Western Europe, SL also developed in
response to the need to bring about social reform through law, but this need was linked more directly to the rise of the welfare state. The modern welfare state, which started its growth gradually in the late 19th century, expanded rapidly in western countries through governmental intervention in various walks of life from the 1950s onward. A host of social poli­cy measures were introduced by legislation or through legal frameworks, implemented and enforced by lawyers working within traditional insti­tutions of the law as well as by non-lawyers (such as social workers and civil servants), resulting in increased juridification of the social sphere (Habermas, 1984; Teubner, 1987). Law was often employed by the state as a regulatory device to bring about conformity and/or social change, was assumed to have universal application and was treated as supe­rior to, and independent of, other norm-generating social fields. In contrast, socio-legal research demon­strated that law was mediated through, and its implementation and enforcement were contingent upon, social and legal institutions with their own sociocultural mechanisms and imperatives (for an early but influential postwar study, see Selznick, 1949). Law’s dependency on these social institution­al mechanisms caused divergence between the inten­tions of the legislature and policy-makers, on the one hand, and the outcome of policies that were execut­ed by law, on the other (cf. Griffiths, 1995). The insight that law was not an effective vehicle for social engineering is shared commonly by various approaches within SL. Some have argued that social engineering through law is not only an ineffective exercise, but also endangers the very autonomy of the legal system (for a debate, see Paterson, 2006).