THE SOCIOLOGY OF LAW

The Sociology of law 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 has first and foremost it’s foundations in the field of sociology. This area does, however, take an interdisciplinary as opposed to duel approach in analysing and understanding the relationship between law and society.

Within this area, it is key to consider legal structures (i.e. the legal system), legal process (how law is made) and the interaction of the law in societal change and social control. It is important to critically analyse the impact, positive and negative, of law on race, class, gender and other social differential values, as well as highlighting that:

    • Law needs to be understood as part of social institutions
    • It is important to critically analyse how law and society interact with each other.
    • Legal categories and legal reasoning interact with social hierarchies based on race, class, gender and sexuality.
    • It is important to analyse relations between law and social control and social change.

A sociological interpretation and application of the law, however, does not bar the study of rules but only “differentiates between the proclaimed objectives of legal norms, on the one hand, and the actual workings and consequences of law, on the other” . The values and application of sociology as a discipline enrich the interpretation and application of law in many areas, giving rise to the Sociology of Law as a unique and evolving area of knowledge and expertise.

The study and critique of the Sociology of Law has been well underway since the mid-19th century. Whilst the development of the field has continued to the modern day, it is important to acknowledge and appreciate some of the key thinkers and contributors to the field.

Theoretical Background: Key Thinkers

Max Weber

“Rational adjudication on the basis of rigorously formal legal concepts is to be contrasted with a type of adjudication which is guided primarily by sacred traditions without finding therein a clear basis for the decision of concrete cases” .

Weber states here that there are essentially different forms of justice or legal decisions that are ultimately influenced by traditions and social norms. He highlights that many legal systems are based on an irrational development of case law, based on precedent and administers by a highly developed yet limited field of lawyers and jurists. This conveys how intrinsically linked societal norms and values are to law.

Vilhelm Aubert

“In order to understand the influence of a law it is necessary to study the variables which intervene between the promulgation of the law and the behaviour of the public”

Aubert believed firmly that behaviour is influenced by the law and that is intrinsically linked to the development of social norms. This helps us to both critique and understand the sociology of law as an interdependent and mutually influencing field of interpretation.

Émile Durkheim

“[E]very precept of law can be defined as a rule of sanctioned conduct. Moreover it is evident that sanctions change with…gravity. It is right, then, to classify juridical rules according to the different sanctions…attached to them”.

Durkheim emphasised the influence of history in changing the nature of law and its application. This is because of the expected variation in societies’ values in respect to individual rights and responsibilities. This socio-legal critique is detailed in his seminal work The Division of Labour in Society.

O. Kahn-Freund

“It is one of the tasks of a sociology of law to explore the social forces which bring about the creation of legal norms and institutions and changes in the positive law”

Along with Georges Gurvitch and Karl Renner, Kahn-Freund emphasises the interaction between the society and legal structures as a critical consideration in the Sociology of Law. That is, the importance of social institutions (both formal and informal) and the influence and relationship they bring to bear on the legal institutions and developments within the legal field.

Practice

The Sociology of Law is a focused and critical field in understanding legal mechanisms and legal practice, as well as establishing the foundation of jurisprudence. However, a definition and general framework need constructing so that the right questions can be formulated. The field transcends specific matters and enriches learning both in the theoretical and practical sense by offering a more nuanced and enriched analysis. This sociological approach has enhanced inter-disciplinary learning in other fields, but especially on social-science perspectives. This continues in development and is a popular approach to specific issues that encompass socio-legal considerations.

Challenges In Application

The establishment of one clear and concise definition of the Sociology of Law has eluded scholars and practitioners to date. This is because consensus on what the field consists of, in terms of definitions and limitations is yet to be achieved. This in turn has an impact on the authority of the Sociology of Law as a coherent discipline and this has had negative implications with regard to what the field can achieve. Critically this also has a negative impact on learning and development in the area, particularly in gaining an increased understanding of how the legal field and sociology interact with each other.

Conclusion

Finally, it may be said that the Sociology of Law has had a long history of dedicated followers and practitioners. It is a discipline that seeks to transcend legal traditions and challenge what the limited understanding of the interaction and inter-relationship between society and the law, in all areas.

It is critical that further learning and analysis is needed to attempt a formalisation of definitions, values and limitations of the discipline in order that it may continue to challenge traditional interpretations of socio-legal issues.

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 societies, which empirically examines 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.

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