On the Paradox of Contextualisation
(1)
Sociology of Law, Lund University, Lund, Sweden
Abstract
We continue our discussions on the relationship between law and social sciences in this chapter by focusing more closely on socio-legal methodology. We use Denis Galligan’s main argument in Law in Modern Society as our starting point. According to Galligan (Law in modern society. Oxford: Oxford University Press, 2006), adopting a social scientific perspective which describes and analyses the law in extra-legal terms can easily entail losing sight of the law as a distinct social formation. To avoid this pitfall, socio-legal research should contextualise those features of the legal system which are relevant to the actions of citizens and officials of the law. This chapter argues that since the ‘relevant’ features described by Galligan are related ultimately to legal rules, his approach amounts to a top-down method of contextualising the impact of law on society, and as such he loses sight of law’s fluidity and societal embeddedness. Using Galligan’s methodology as its backdrop, this chapter sketches the contours of three ideal typical approaches to the contextualisation of law. The first approach examines how social institutions absorb law within their existing networks of rules and relations, the second reverses law’s method of dislodging actions from their socio-historical context and the third uncovers the socio-cultural and historical embeddedness of the legal system. This chapter concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and to certain degrees. Scholars who employ the second and third approaches often do so as part of their search for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for law, rather than as the failure of social sciences to account for the specificity of positive law.
This chapter is a revised version of ‘Having One’s Cake and Eating It: The Paradox of Contextualisation in Socio-Legal Research’ in (2011) International Journal of Law in Context 7(4): 487–503.
Robert Alexy’s notion of ‘law’s claim to correctness,’ which we discussed in the previous chapter, asserted that legal discourse possessed a unique property. The claim to correctness raised in law is mediated through the institutional settings of the legal system and recast by the procedural and material constraints of positive law. As a result, it becomes distinct from a claim to correctness raised in, for example, moral discourse. As we shall see in this chapter, Denis Galligan, whose take on law is different from that of Alexy, also argues that there is something qualitatively unique about the law. In addition, Galligan asks if describing the law in social scientific terms would not amount to losing sight of what makes the law a unique social formation. Before we take this point further and examine Galligan’s thesis in more detail, we must return to the discussions in Chap. 2 concerning the limits of the traditional methods of legal studies. Why do we need to resort to social scientific methods and concepts—which are not of the law, but about the law—to describe the law? Are law’s own methods not sufficient for this purpose?
Traditional doctrinal scholarship provides an important service to practicing lawyers by analysing legal rules and decisions, clarifying ambiguities within rules, structuring them in a logical and coherent manner and describing their inter-relationship (Chynoweth 2008). The systematisation and formulation of the law in terms of doctrine creates a conceptual basis for constructing a legal context that helps to determine which rules should be applied in a particular situation. In this sense, doctrinal studies emerge out of the study of legal texts (or black-letter law), which are generated by legislature, courts and other legal authorities and feed back into legal practice once they are used in deciding cases.1 As pointed out in Chap. 2, the method of doctrinal research, being functional to legal practice, dominates academic law and legal education. Notwithstanding its role in supporting legal practice, the doctrinal approach is criticised for conveying a normatively closed image of law (Cotterrell 1995, pp. 50–53), for constructing the legal context narrowly, for presenting the legal system as a body of rules which can be studied in isolation from the broader societal context of the legal system by the exegesis of authoritative texts (Bradney 1998, p. 76; Vick 2004), for ‘not being self-conscious about its assumptions’ (Twining 1999, p. 44) and for cultivating what Samuel (2009) calls the ‘authority paradigm.’ Internally, i.e. from the standpoint of the legal system and its functionaries, this paradigm (or legal context) is produced by way of self-reference and normative closure, continually reaffirming the authority of legal sources such as legal texts, previous legal decisions and/or legislation, and prioritising definitions and methods based on what William Twining called ‘practical insider attitudes’ (Twining 2000, p. 129; for a discussion, see Banakar 2003, p. 8). Externally, i.e. from the standpoint of policymakers and citizenry, it is upheld through the threat of violence against non-compliance, backed by the authority of the modern state. The authority paradigm’s normative closure and its dependency on coercion encourage ‘rigidity and introspection rather than an open-minded attitude to academic methods and pursuits’ (Samuel 2009, p. 432). Moreover, it fosters an understanding of the law as a system which exists independently of societal forces. In order to escape the intellectual constraints of the authority paradigm, many academic lawyers turn to social theory and social sciences, which in contrast to law are based on the ‘perspective of enquiry’ (Samuel 2009, p. 432).2 These scholars place the law in the broader socio-cultural context of the legal system and study legal phenomena in relation to societal forces, which are the prerequisite for the existence of the legal system and the production of the narrow legal context of the law. However, such an evasive strategy often comes at a price.
In Law in Modern Society (henceforth LMS), Denis Galligan draws attention to the price paid for evading the disciplinary confines of the law, and he argues that adopting a social scientific perspective, which describes and analyses the subject in terms other than those of the law such as power, domination, culture or morality, can easily entail losing sight of the law as a distinct social formation with its own specific character, features and architecture. He writes:
The step into society in the first place is taken to escape the confines of legal analysis and the certainties of legal professionals by considering law as a social formation and the way in which it interacts with other social formations. From there it is a short step to abandoning any sense of law as distinctive, and to re-conceive it at best as one set of rules among many, at worst as of slight social relevance… The most notable and culpable failure is to assume that law is a mask for something else, for some more basic categories which are discovered by stripping away the mask. If such ideas have had their heyday, only slightly less culpable is the notion that law, being superficial or super-structural, has no social significance, and can be collapsed, deconstructed, or reduced to something else: power, economics, gender, race, political hegemony, ideologies or whatever. (LMS, pp. 4–5)
Had law not been a social formation distinct from the other social phenomena with which it interacts, and had it not possessed its own very specific social properties and mechanisms, it would have long collapsed into politics, economy, religion, morality or culture. This is a powerful argument that requires those interested in the ‘strong’ versions of legal pluralism,3 as well as those who see law primarily as a cultural artefact or a function of custom, religion, politics or economic relations, to reconsider many of their fundamental assumptions.
What follows is an attempt to present and examine the thesis in Denis Galligan’s LMS. The first section of this chapter outlines his project and then describes the author’s central concern. Section 2 explores his proposed methodology, according to which socio-legal research should take law seriously by studying those features of the legal system that are relevant to the actions of citizens and officials of the law in the context of what Galligan calls the ‘social sphere.’4 In the final section of this chapter, Galligan’s approach is confronted with mainstream law-and-society research,5 and the contours of three ideal typical approaches to contextualisation are sketched. The first approach studies the extent to which the implementation and enforcement of legal rules are contingent upon social and institutional factors such as socio-cultural norms and conventions, and how social institutions absorb law within their existing network of social rules and relations. The second approach throws light on how positive law examines social actions and relationships in isolation from their socio-cultural and historical settings. The third approach uncovers the societal embeddedness of the legal system. The second and third approaches are largely interrelated and differ only in respect to their scope—while the former aims at reversing law’s method of dislodging actions from their socio-historical context, the latter concerns itself with the totality of the law and tries to ‘re-place’6 the legal system in its socio-historical context.
This chapter concludes by arguing that these three approaches reverse the de-contextualising effects of modern Western law in different ways and degrees. Scholars who use the first approach try to have their cake and eat it, too. They take the constitution of the legal system for granted, and thus by and large they safeguard the specificity of positive law while contextualising legal rules. They cannot, however, completely avoid ‘contaminating’ the legal context with extra-legal concepts and insights. In contrast, researchers who resort to the second and third approaches are not concerned with preserving the constitution of positive law and are often searching for alternative forms of law and legality. What is identified by Galligan as losing sight of the distinctiveness of the law should, in their case, be explored in light of the ongoing struggle for the law rather than the failure of social sciences to account for the specificity of positive law.
1 Galligan’s Project
1.1 Developing Hart’s Concept of Law
Galligan is influenced deeply by Herbert Hart’s work, and LMS may be read, partly, as his attempt to uncover, describe and clarify the potential of Hart’s legal theory for socio-legal research. To achieve this end, Galligan pilots Hart’s The Concept of Law (1961) in the direction of socio-legal theory and research through what remain for many social scientists the uncharted waters of analytical jurisprudence. For example, Hart places officials of the law at the centre of his legal system, arguing that the minimum requirements for the existence of a legal system are satisfied ‘as long as officials accept the law as binding and act accordingly,’ thus implying that law is not in the first place dependent on support from and recognition of citizens who must obey the law (LMS, p. 128). Hence, for the legal system to operate, we only need to ensure that its officials accept and adopt the internal view of secondary rules, while citizens obey the primary rules. As a result, Hart relegates ‘citizens to the sidelines’ (LMS, p. 121). Being concerned about the democratic and analytic implications of neglecting the role that citizens do play—and ought to play—in legal processes, Galligan takes on the challenge of empowering them and restoring them to their proper position (LMS, p. 122). Without abandoning Hart’s legal theory, Galligan sets out to demonstrate that the analytical distinction between the attitudes of officials and those of the people does not withstand close scrutiny (LMS, p. 128). It is not only officials but also often ordinary people who accept the law and treat it as binding on their own and other people’s actions. The notion of obedience becomes inappropriate when parties use the law voluntarily, for example to establish contractual relationships. Their very choice and use of law is in itself evidence of their acceptance thereof, which is how Galligan unpacks many of his ideas concerning Hart’s distinction between the internal and external perspectives on law, demonstrating their relevance to socio-legal research and making them receptive to socio-legal analysis. However, it is important to add that Hart admitted many of these points during his lifetime, especially when meeting with the critique directed at The Concept of Law by legal theorists such as Raz (1980) and McCormick (1981). In addition, as Cotterrell (2003, p. 97) explains:
Various passages in The Concept of Law might suggest that Hart assumed all along that the internal view of rules was one that could be understood by a hermeneutic observer (a legal theorist, for example) as well as by an official or citizen adopting the rules as guides for his and others’ conduct.
1.2 From Rules to Rulings
As part of his attempt to bring Hart’s ideas to bear on socio-legal theory, Galligan uses a handful of anthropological and historical studies (mainly of Roman law) to venture beyond the analytical boundaries of Hart’s jurisprudence. At the risk of oversimplification, Galligan’s theoretical framework may be described in terms of six consecutive levels of analysis:
1)
Law is made up of rules, but it is more than rules and did not start historically as a collection of rules.
2)
Systems of positive rules belong to advanced legal orders—traditional societies, on the other hand, are based on conventions and shared understanding. By moving ‘backwards from rules to rulings,’ we can identify ‘law in its most elemental sense… as the expression of primary relations among the members of society’ (LMS, p. 47).
3)
Certain acts such as marriage and contract are simply legal and recognised as legal acts in all societies, including primitive communities.
4)
Law started when ‘rulings’ were made in regard to these legal acts.
5)
Rules were then eventually deduced from these ‘rulings’ (legal rules are rationalised versions of the original ‘rulings’). In that sense, legality is an intrinsic characteristic of all societies, but it is manifested as a social fact once ‘rulings’ are made in respect to legal acts.
6)
The original legal act is a social act and continues to provide the basis for interpreting and enforcing legal rules. Hence, the ‘social’ context in which law should be analysed consists of its original legal context.
This theoretical framework perhaps explains why Galligan starts his book by unfolding Hart’s views on legal rules. Starting with rules, he moves on to search for the social context of law, developing the notion of the ‘social sphere’ which, besides containing rules, conventions and practices, provides the basis for meaningful social action. The concept of the social sphere should not be confused with what is broadly understood as ‘social context’7 in the contextual studies of law. ‘A social sphere may be described,’ writes Galligan, ‘as an area of activity in which the participants share understandings and conventions about the activity, and which influence and guide the way they engage in it’ (LMS, p. 103). While social context is defined deliberately in an open-ended fashion (see Twining 1999, p. 40), the social sphere is constructed as a well-structured and institutionalised environment, capable of providing a high degree of certitude (i.e. it is ‘solid’ in the sense of early modern institutions).8 Galligan then goes on to discuss issues related to the reception and coercion of law, and he explains how the architecture of law, ‘the detailed manner in which laws are expressed’ (LMS, p. 139), interacts with social spheres and how this interaction is decisive for making sense of the mechanisms of implementation and compliance.
From a methodological standpoint, socio-legal research should, according to Galligan, start with those features of law ‘relevant to the actions of citizens and officials… and examine meanings attributed to such features by citizens and officials, and the actions that follow’ (LMS, p. 36). On top of the list of such features we find legal rules,9 but there are other normative factors, such as law’s contribution to ‘social goods,’ which might direct actors’ actions. This does not mean that socio-legal research should limit the scope of its analysis to the study of individual actions; rather, it needs to examine how various social spheres interact with different aspects of the law while paying special attention to its moral and pragmatic foundations. Galligan does not describe his approach in terms of contextualising the law, yet he discusses the contextual contingency of social and legal rules (LMS, p. 53) in some detail and his methodology was devised specifically to contextualise the law without dislodging legal rules from their legal context (or from their ‘authority paradigm’). The next section explains how Galligan achieves this goal by allowing the legal context to determine what is socially relevant.
1.3 The Social Context of Rules
Starting our analysis with rules is justified because, according to the theoretical framework sketched above, not only does law consist of rules, but also rules are one of the features of modern legal orders that we can identify as relevant to the actions of citizens and officials. Judges, officials and others who participate in legal processes express themselves in terms of or by reference to rules. More importantly, Galligan argues that rules defined as ‘conventions’ are constitutive of many organised activities. This does not mean that activities such as chess, tennis or law consist of rules exclusively, but once you decide to play chess or tennis, or get involved in law, whatever your reason for doing so, you commit yourself to the conventions that make up these activities. Rules in general, whether social or legal, are standards which guide action in a specific manner. They are also standards against which action can be assessed and judged. Legal rules especially provide ‘a general standard which is applied in particular cases without having to reassess the merits in each case; predictability and stability result’ (LMS, p. 50). However, they are expressed in language and therefore have an open texture which allows outside factors to affect their interpretation and application. Thus, even clear and precise rules are contingent upon surrounding considerations and require contextualisation (LMS, pp. 54–55).
The recognition that all rules need to be interpreted before they make an impact on social life is of little value if it fails to consider the full extent and significance of their contextual contingencies. Social and legal rules often signal that ‘a certain kind of deliberative process has to be gone through, a process of which the rule is a vital but not conclusive part’ (LMS, p. 57). Deliberations are required to determine if a specific rule is applicable in a particular situation and, if it is, what it means; for example, ‘it may require consideration of related rules, the weighing of presumptions and the consideration of factors to take into account’ (LMS, p. 57). In short, rules are the starting point of deliberations and, as such, they neither dictate fully what action should be taken ‘nor exhaust the range of actions that may be properly taken’ (LMS, p. 57).
What happens to legal rules, whether they are adopted, enforced, alternatively modified or marginalised, depends to a great extent on the institutional settings in which they are used. Institutions not only consist of rules, but also of values, standards, dispositions, etc., which are created once people ‘come together to carry out some activity’ (LMS, p. 106). Galligan explains that ‘where an activity is itself created by legal rules, as in the case, say, of administrative agencies, informal rules often emerge in order to interpret the legal rules, or even to modify or marginalise them’ (LMS, p. 108). This point is in line with what Selznick (1949) demonstrated over half a century ago in his study of the Tennessee Valley Authority.10 To go beyond Selznick’s classical wisdom, Galligan turns to Niklas Luhmann to explain that practices which underpin specific social spheres and activities can become self-contained, in other words normatively closed. This means that once social systems import ideas from their environment, they translate them into their own operational logic:
Law, for instance, can influence what happens within psychiatry, but only if [legal activities which take place in the environment of psychiatry] are translated into its [psychiatry’s] language, meanings, conventions, and understandings. (LMS, p. 110)
Galligan is by implication helping us to make a subtle distinction between two approaches to contextualisation: (1) where law and its legal context are integrated into other social systems, thus broadening their contexts by inserting legal rules and considerations into their institutional make-up and (2) where the legal context is broadened to incorporate socio-cultural or psychological processes—as in the case when it is argued that legal reasoning reproduces ‘the maleness of the law’ (see Smart 1995), or legal doctrine can operate as a vehicle of racial violence and domination (Tuitt 2004)—which is the form Galligan wishes to avoid, for it dilutes the law’s context. The first approach preserves the integrity of law’s legal context and authority and assesses how legal rules fare as they are brought to bear on social spheres and applied to social conditions. The second approach involves reconstructing the legal context by redefining legal concepts and operations in extra-legal terms. But why is Galligan so concerned about preserving the distinctiveness of the law? Why should we not expand the legal context to better represent the inter-relatedness of law and other social forces?
1.4 Why Do We Need Legal Rules?
If law consists of norms of organisation which precede state law and remain of greater social significance to legal order, as suggested by strands of legal pluralism, why do we need legal rules to coordinate social relations (LMS, p. 193)? Only once we take law seriously, when we recognise that ‘law is itself a distinct social formation with its own character and features,’ which ‘in the course of its interaction with other parts of society… neither collapses into them nor becomes part of them’ (LMS, p. 6), can we start to discover the added value that state law brings to social norms of organisation. This is one of the more compelling arguments for re-examining the relevance of ‘strong’ versions of legal pluralism, which regard law in terms of norms of social organisation or cultural norms and values,11 and for questioning social theories which treat the law as a function of culture or social structure, custom or tradition. But what exactly is this unique property of the law to which Galligan is referring? To answer this question, we need to consider how he describes the foundation of the modern legal system, first in terms of the authority of law (that citizens and officials recognise and obey the law) and second as the configuration of a set of social relations ‘between citizens as private parties, between citizens and officials nationally (and internationally), among officials nationally (and internationally)’ (LMS, p. 244). The distinctive feature of law emerges out of the specific configuration of these relationships once its legitimate authority, i.e. an authority which descends from the people and not from above, is recognised by both citizenry and officials:
The main background factor is a high level of regard on the part of both citizens and officials for the authority of law, a factor that at once separates modern orders from other systems where it is lacking. From this background the special features of social relations [distinctive of law] emerge. In the relationship between citizens, freedom to enter into arrangements and transactions is prized; once entered into, their security and stability is expected. Relations between citizens and officials have several aspects, the first and most important being that officials hold authority in accordance with the ascending model, meaning that authority originates in the people rather than descends from on high. Secondly, officials are expected to provide the legal framework for security and stability of private arrangements among citizens. Thirdly, officials are empowered actively to direct society in order to achieve social goods, either by their positive provision or by restricting citizens’ activities. Fourthly, officials hold power on trust and are accountable for their actions. Fifthly, the terms of trust include obligations to maintain the legal order…. (LMS, p. 244)
This suggests a certain level of affinity between Galligan and Weber’s concepts of law, an affinity which is recognised perhaps somewhat indirectly in various parts of LMS (see, for example, the notes on LMS, pp. 44–45), but which are largely mediated by Hart’s legal theory and embedded in the distinction between the internal and external aspects of legal rules (LMS, p. 48) and the role of officials—Weber (1978, p. 34) called them ‘special staff holding themselves ready to ensure the authority of law by avenging transgressions’—on the one hand, and the exercise of legitimate force, on the other.12