Conflict and Competition Between Law and Sociology

Law manifests itself simultaneously in different forms and at different levels of social reality (cf. Gurvitch 1947). It is a formal instrument of regulation (i.e. a tool in the hands of policymakers); a body of rules, doctrines and decisions (i.e. a normative system with a distinctive social form and identity); a field constituted by the actions of lawyers, the judiciary and other practitioners of law (i.e. an institutionalised form of practice); an occupational setting (i.e. a profession with a well-established code of practice, identity and interest); an academic discipline (i.e. scientia iuris, legal studies and jurisprudence) and a form of learning, teaching and training (i.e. legal education). Focusing on any aspect of law, we discover further layers of meaning and the diversity of legal forms. For example, looking at law as a system of rules we find that some rules are substantive while others are procedural, some regulate private transactions whereas others confer powers or impose duties, and so on (Galligan 2006, p. 6). Similar diversity can be found in respect to the legal profession, which consists of many groups and individuals with different working conditions and forms of experience as well as legal tasks and aims. The working conditions and daily tasks of lawyers who work at large international law firms, for example, are a world apart from those of the sole practitioners who provide legal services for local communities (Cotterrell 1992, pp. 184–187).

In addition, law is often seen, experienced and employed differently by different groups in society. Some see it as a source of justice, while others experience it as a form of oppression. Some use it to reform social conditions, whereas others employ it to promote personal interests (for a discussion, see Banakar 2010). Some regard it as an arena where marginalised groups can struggle for their rights (Banakar 2004), while others perceive it as an ideology implicated in perpetuating racial, gender and class violence (Tuitt 2005). Still another group sees the law as an expression of social organisation aimed at facilitating interpersonal and inter-institutional interactions and exchanges (Stjernquist 2001). The list of the ways law is seen, depicted, employed and/or experienced by various people could be made much longer, but none of these images of law by itself captures it in its entirety. Fragmented as the reality of law might be, the legal order still presents itself as a unified corpus capable of interacting with other normative orders, such as custom and religion, without apparently compromising its distinctive normative force or identity.

The problems associated with the multifaceted character of law, which make it sociologically impossible to generalise about its nature, are hardly alien to jurisprudence (I use the term to refer to both legal theory and legal philosophy), which is concerned with clarifying the general framework of legal ideas and formulating general and abstract descriptions of legal systems (for a discussion, see Galligan 2006, pp. 7–12). Within jurisprudence we find many orientations and schools of thought that implicitly or explicitly recognise the social and institutional character of law (Raz 1979, p. 41). Yet, the image of law as a highly rationalised, rule-based activity, i.e. as a system of rules, norms, decisions, doctrines and principles designed to direct action, guide legal analysis and justify decisions in an “objective” manner, pervades juristic discourses and creates the cornerstone of legal education. Rule-based thinking is an integral part of the legal method and what Samuel (2009) describes as the ‘authority paradigm’, i.e. a paradigm which relies on authoritative sources and justifies its decisions and arguments by referring back to legislation, previous legal decisions and doctrine.

The significance of the rule-based understanding of law can be observed in theories which subscribe to “legal positivism” and see it as consisting in rules (Hart 1998; Kelsen 2001; Raz 1979). The tradition of legal positivism, which continues to provide the most influential modern account of law, has its roots in the Enlightenment and emerged in the nineteenth century as a reaction, in part, to natural law theories which sought a permanent and universally valid basis for law in nature and/or divine reason.³ Various schools of legal positivism share three fundamental assumptions: firstly, law is a system of rules, norms or principles, secondly, it is a matter of “social fact” and its sources of authority and validity are empirically verifiable and thirdly, there is no necessary link between law and morality. This means that the validity of a legal rule is not derived from its content but from its source, which in turn is conceptualised in terms of a social actor or institution such as the “sovereign.” There are many schools of legal positivism, and thus many versions of the relationship between law and morality (the so-called “separation thesis,” which we will discuss in detail in Chap. 4) and positive law’s validity and the significances of legal sources (the so-called “pedigree thesis”).

Although legal positivism recognises the social nature of the sources of law and employs a broadly conceived empirical approach to determine the validity thereof, it nevertheless pays little, if any, attention to the social constitution of this agency. As a result, we find H.L.A. Hart (1907–1992), who is one of the most influential legal philosophers of the twentieth century, recognising the importance of “officials” of the law but nevertheless neglecting to consider how the social constitution of these “officials” may influence the way law is formulated, promulgated, interpreted and enforced (Cotterrell 2003, pp. 210–211). Hart also argues that law consists of various rules which are essentially social, but again he stops short of analysing for whom law speaks and ‘whose voices and expressions are excluded from legal expressions’ (Cotterrell 2003, pp. 210–211). The most fundamental category of rules in any particular legal system, according to Hart (1998), is ‘the rule of recognition’, which enables officials of the law to determine if a rule is a “valid” rule of law.⁴ Legal positivism’s unwillingness to discuss the constitution of the “social” is a reflection of the objectives of much of jurisprudence—obvious exceptions being legal realism, critical legal studies and schools of legal feminism. Legal positivism tries to provide an adequate account of law as it is, in contrast to how law ought to be, but it wishes to achieve this analytically and at the level of general theory, i.e. by clarifying the basic concepts and frameworks through which we observe, describe and understand law rather than through empirical investigation of the mundane practices and experiences of men and women who produce and reproduce the law and its institutions.

To give a more recent account, Gardner (2001, p. 201) defines legal positivism as a broad intellectual tradition which advances and enforces the proposition that ‘in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits (where its merits, in the relevant sense, include the merits of its sources)’. According to legal positivism, studies of the law must begin by considering what constitutes valid law, which in turn requires an understanding of how legal actors (or the social agencies and institutions of the legal system, such as officers of the law or the court) identify and describe the sources of the law and their hierarchy. It is noteworthy that Gardner’s definition, which is in line with Hart’s concept of law, makes no reference to the state (or the sovereign, as Austin and Bentham did) and thus avoids concerns raised about the centrality of the state as the source of law. The sovereign, however, is still a source of law, but a one which is identified as such by the rule of recognition. Moreover, Gardner’s officials of the law and their ‘rule of recognition’ remain locally embedded, demonstrating the difficulty of legal positivism to break with its ‘methodological nationalism’ (Michaels 2013), which we shall discuss below.

According to various schools of legal positivism, which continue to dominate legal theory and legal education, legal systems are not only made up of rules, but they are also founded on and operate through them. It is therefore hardly surprising if we discover that rule-based thinking and reasoning perform a vital role in the reproduction of modern legal systems. They are part of the method through which law distinguishes legal from extra-legal events, while at the same time it appears to be deciding cases on an all-or-nothing basis, which in principle leaves little or no space for general moral or sociological considerations (Luhmann 1985). More importantly, rule-based thinking impedes “reflexivity”⁵ by narrowing down the alternative ways of thinking about the law and acting legally, although I should hasten to add that it does not, and cannot, eliminate reflexivity. Law, indeed, is deployed “imaginatively” or “strategically” by individuals and groups to serve their specific ends. Those who employ the law in new and imaginative ways often do not submit blindly to its rules and subvert its internal logic by forcing it to reconsider its operations in view of new circumstances. “Strategic litigation”, for example, plays an important role in common law jurisdictions where precedence is a source of law. Litigating strategically in order to develop the scope of the existing law, or to challenge how public bodies exercise their legal powers, can require a degree of reflexivity and ability to think outside the law’s existing normative structures. Strategic litigation does not, admittedly, belong to the routine or “normal” operations of the law, but nevertheless demonstrates the possibility and the limits of acting reflexively within the law.

As argued in the Introduction, reflexivity is enhanced at the level of agency by social consequences of globalisation (which also means that traditional institutions exert less control over the individual’s actions). The legal implications of this development may be discussed in at least three ways. First, we may argue that as the individual actors’ reflexivity is enhanced vis-à-vis social structures, the law gains in normative importance. Once traditional institutions, such as family, school and local community, lose their normative force and ability to provide means of social integration, control and identity, or where society is fragmented into a multiplicity of incompatible beliefs and value systems, then the legal system becomes perhaps the only institution capable of providing a coherent and independent set of guidelines for action and codes of conduct vital for upholding a degree of continuity and certainty in relationships. Second, we may take the opposite view and argue that law and legal thought are badly out of tune with social developments (which is the point made by Ralf Michaels in the next section). The question we should ask is whether our search for continuity and our need for certainty, combined with the constraints of rule-based thinking (which conceptualises law as a coherent system of rules), are not delimiting our legal imagination and distracting us from considering alternative forms of regulation. This brings us to the third point that under late modern conditions, where societies are socio-culturally diversified, the state is undergoing transformation and many sources of normativity and law-making are moved outside its reach, we necessarily have more than one system of valid law. Under these conditions, nationally-based laws cannot be applied to all equally (not even in theory), while alternatives to formal rules of the legal system (such as religious laws of various groups and “soft laws” generated by multinational corporations and other international bodies) proliferate.

Let me reiterate that rule-based thinking impedes, but does not eliminate, reflexivity. Legal enforcement, generally, and applying the law to the facts of a case, in particular, might appear as rational, formal processes based on a mechanical method of decision-making. In practice, however, they are mediated through interpretive processes, where the same rule can be interpreted by various authorities and lawyers in different ways, thus reflecting an array of legal standpoints, legal contexts, interests and social situations. Nevertheless, legal reasoning and argumentation are never free from the normative constraint of the legal sources from which positive law ultimately gains its validity and authority. Therefore, legal rules may be regarded as standards for action, or as one among many resources used to negotiate the boundaries of law. The interpretive and contextual nature of legal rules indicates that law consists not only of rules alone, but also communicative processes through which the interpretation and application of rules are realised in various social and legal contexts. Sociologically, these communicative processes, rather than legal rules, are the units of analysis. From a sociological point of view, the rule-based approach exhibits law’s attempt to rationalise the chaos of social life by internally redefining events and ideas outside the legal system in its limited vocabulary and by confining complex social processes to the conceptual boundaries of legal rules and standards.

The traditional conception of law’s source of authority (or its understanding of “valid law”) is founded on the Westphalian Model and, to borrow from Michaels (2013, p. 291), operates on the basis of ‘methodological nationalism’, i.e. on the assumption that the state represents ‘the ultimate point of reference for both domestic and international law’. The acceleration of globalisation has been undermining the importance of national boundaries and the role of nation states while simultaneously generating new regulatory challenges. Globalisation has been promoted by organised economic interests such as multinational corporations in an attempt to expand their markets by developing international production networks, ‘dispersing production facilities among different countries’, fragmenting ownership, making production process flexible and so on (see Snyder 1999, p. 335). However, according Snyder (1999), this globalising economic process has entailed a number of political and legal implications:

[G]lobalization has witnessed the rise of new political actors such as multinational firms, non-governmental organisation and social movements. It has tended to weaken, fragment and sometimes even restructure the state, but has not by any means destroyed or replaced it. Globalisation has also altered radically the relationship to which we have become accustomed in recent history between governance and territory. It has thus blurred and splintered the boundaries between the domestic and external spheres of nation-states and of regional integration organisations…. (Snyder 1999, pp. 335–336)

Since Snyder wrote these lines in 1999, globalisation has been enhanced further—some would say revolutionised—by the development of new information technology, which further undermines the traditional forms of law and regulation. For example, the multi-jurisdictional architecture of cyberspace, in that it transcends national borders or overlaps several jurisdictions at the same time, means that our traditional forms of regulation either become redundant or lose their efficacy once they are applied to online behaviour. We are also confronted with the growing significance of transnational law, which refers to forms of law, legal regulation and ordering, which not only exist alongside traditional domestic and international law, but also extend beyond the traditional boundaries of nation states. Moreover, the socio-cultural diversification of modern societies and the increased interaction between legal traditions has made us aware of the fact that we are living in legally pluralistic environments. This has led many to argue that there are no longer any self-contained legal systems or normatively-closed legal orders of the kind which is assumed by the “authority paradigm.” Not only legal systems, but also legal traditions are instead defined as ‘hybrids’ (Örücü 2007). Twining (2000, p. 10) summarises the impact of globalisation on law by asking the following question:

Can one… give an adequate account of law in the modern world which does not give some attention to the significance of transnational non-governmental organisations (Amnesty International, Green Peace, the Catholic Church, transnational women’s networks, international trade union organisations) to peoples that are nations without states (the Maoris, the Welsh, gypsies, the Native Peoples of North America and Australia), to organised crime, liberation movements, multinational companies, transnational law firms, and significant classes such as the vast herds of displaced persons (both refugees and internally displaced)?

Today, legal problems increasingly transcend the traditional national boundaries and jurisdictions of sovereign states begging for a new understanding of the role of law in society and a new approach to regulatory challenges, an approach which is in tune with the new reality of the global (network) society in which we live. The conventional understanding of the legal system, i.e. a juridical order defined in terms of the nation state, is giving way to the hegemony of meta-legal orders, such as the EU, and the transnational sources of private law-making, including multinational corporations and NGOs which exist outside the traditional jurisdiction of nation states. The law is thus increasingly characterised through a pluralism which reflects a normative landscape fragmented by the socio-cultural forces of globalisation. Notwithstanding the consequences of globalisation for law and regulation, legal theory and much of legal education proceed with business as usual. As Michaels (2013, p. 286) points out, ‘legal thought has so far reacted to globalisation not with a true paradigm shift but instead by more and more inapt attempts to adapt the methodological nationalism that has provided its paradigm for the last two hundred years or so’. Methodological nationalism, adds Michaels, continues to prevail in all areas of law:

Discussions in public law assume the existence of one government (unitary or not). Private law has been nationalized – not just formally, as codes (in civil law countries), but also in our understanding of it. Even law that is not national law is understood within such methodological nationalism. Thus, international law, understood as law between states, perpetuates the idea of the state as the only relevant reference point. Even where law is moved to the supranational level – as is the case for the law of the European Union – it remains caught in the perspective of the state. More, even where non-state law is described as law, the concept of law used is typically borrowed from the model of state law. Conflicts between legal systems are, in such a perspective, viewed as an exception; the dominant solution in private international law is to allocate international transactions to one state. (Michaels 2013, p. 286)

The tension between the empirical reality of law, i.e. how it operates through socio-cultural processes and institutions and how it changes in response to social developments over time, on the one hand, and the ideal descriptions of the law, i.e. how law ought to operate and develop, on the other, constitutes one of the main concerns of this book. We shall therefore return to this issue in the coming pages. Let us now return to our discussion of the traditional legal method which, as pointed out, continues to dominate much of legal thought and legal education, and examine how it distinguishes itself from the general approach of sociology.

Bartie (2010, p. 350) describes doctrinal research as the ‘lingering core of legal scholarship’, whose traits include:

[F]ocusing on legal principle (largely that generated by courts but also the legislature); basing argument and prescription on a normative premise which is not unpacked or explained; reacting to events comprising of changes to the law by judges or legislatures; and, looking for deficiencies in legal principles, suggesting ways to improve them or clarifying the law so that judges or legislatures can better understand their development. The methodology adopted is likened to that of the courts with primary focus resting on the internal logic of judgments or statute.

The ‘conventional legal approach to the law is all about doctrine’, write Tiller and Cross (2006, p. 518), and it represents the standards or principles which ‘can generate outcomes in conventional disputes independent of the political or economic ideology of judges’.⁶