The Changing Horizons of Law and Regulation: From an Industrial to a Post-Industrial, Digital Society

The intellectual pedigree of legal sociology can be traced back to the works of two groups of scholars. The founders of sociology included scholars such as Herbert Spencer (1820–1903), William Graham Sumner (1840–1910), Emile Durkheim (1858–1917) and Max Weber (1864–1920), while jurists interested in employing social scientific methods in the study of law included Eugen Ehrlich (1862–1922), Leon Petrażycki (1867–1931) and Roscoe Pound (1870–1964) (see also Sect. 1.​3 in Chap. 3, where sociological jurisprudence is presented). The first group, which was driven by sociological concerns, explored the development and application of law as part of an overall effort 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 forms of rationality and authority (cf. Weber 1978; Hunt 1978), whereas Durkheim explored it as a means of describing the transformation of society from a form of social organisation based on mechanical solidarity to one based on organic solidarity (cf. Durkheim 1984). As Durkheim’s elaboration of the concept of “social fact” reveals, he was concerned with the totality of society, which for him had an objective reality external to, and coercive of, the social actor. While Durkheim studied the structural functional characteristic of society, Weber developed ideal types of social action. This is reflected in both his methodological statements (for example, his concept of verstehen) and his analysis of forms of rationality and authority. However, his substantive sociology shows that his main interest was nevertheless in the study of ‘the large-scale structures and institutions of society’ (Ritzer 1992, p. 156). The reason for emphasising the basic focus of Durkheim and Weber’s sociologies (and this point may be extended to sociological theories inspired by Marxism), which have informed and continue to inform socio-legal theorising,² is that they employed a concept of the “social” and advanced an understanding of the “totality of society” as a unified, coherent and fundamentally rational entity, which has since been contested. As we explained in the introduction to Chap. 10, the move to risk management strategies was motivated partly by the insight that to grasp the totality of a contemporary society is a highly problematic undertaking. Late modern society, to reiterate, generates many (often conflicting) sets of knowledge, values and truths as well as socio-cultural contexts which foster different meanings, expectations and experiences. Already we are confronted with a difficult question: to what extent do Durkheim and Weber’s sociologies, not to mention Marx’s theory of modernity, provide a point of departure for the sociological analysis of law in contemporary society? Any answer to this question has to consider how successive generations of social scientists and social philosophers have deliberated upon and debated classical sociology. The re-examination of classical sociology, some of which has taken the form of ideological confrontations between various sociological perspectives, has brought into question two central assumptions of sociology regarding social order and social action. At the same time, the postmodern assault upon the foundations of totalising knowledge and truth has forced many sociologists to reconsider the feasibility of constructing universal theories.

In the wake of the postmodern critique of truth and knowledge, the development of classical sociology may be described in terms of the clash of two contrasting understandings of social order and social integration in contemporary society. These two paradigms regroup sociological schools in a way which goes beyond the simple distinction between the conflict and consensus approaches we discussed in the introduction. The first, which we can call the modernist paradigm, departs from the assumption that society is ‘a structured, systematically integrated and ordered realm subject to laws that are both real and accessible to human reason’ (Bendle 1996, p. 70)—a concept of social order which was central to the social theories of Kant, Hegel, Marx, Durkheim and Parsons. The other standpoint, which we can refer to as postmodernist, regards the social world as ‘an ultimately unsystematic and undetermined realm where any appearance of structure, integration or order is imposed and all so-called laws are constructions, frequently reflecting relations of power and domination within society’ (Bendle 1996, p. 70). This latter approach was latent in Kafka’s conception of modernity, which we discussed in Chap. 6, and has been inspired by Schopenhauer, Nietzsche and Foucault. The spread of globalisation, which has accelerated the rate of change and created conditions characterised by fluidity, diffusion, fragmentation, indeterminacy, plurality and localism, has provided empirical support for the postmodern and poststructuralist critiques of knowledge and totalising theories of society

Classical sociology has also been influenced by the structure/agency and micro/macro debate. Works of Jürgen Habermas, Pierre Bourdieu, Anthony Giddens and Niklas Luhmann exemplify how social theories of Marx, Durkheim, Weber and Parsons were dissected and how their concepts and ideas were re-evaluated and reconstructed from the 1960s onwards (for an overview see Banakar and Travers 2013). Both Habermas (1984) and Luhmann (2004), for example, avoid simplistic descriptions of the relationship between social structures and social action, which by implication would treat one as the cause of the other. Neither Habermas nor Luhmann employs the notion of a conscious agent as a basis for constructing a concept of society; instead, they depart from the notion of communication, which they incidentally conceptualise in different terms, as their point of departure for describing social developments. This does not mean that either the concept of the social actor or the idea of structural relations has become sociologically obsolete. Instead, it reflects the awareness that the Cartesian “I” in ‘I think, therefore I am’ does not provide an epistemological platform from which one may launch social theories. As Giddens (1987, p. 88) explains, ‘The “I” is not immediately available to itself, deriving its identity as it does from its involvement in a system of signification’. This amounts to a ‘decentring of the subject’, which has had a profound impact on the way classical sociological theories have been revised and reconstructed, and it also exemplifies how social theory has been reassessing its classical assumptions. The disqualification of the Cartesian “I” draws attention to the significance of reflexivity—the ability of all social actors to assess and reassess their social position as both subjects and objects, as well as the awareness that they are the observer and the observed at the same time—in understanding the relationship between actor and structure. According to Archer (2010, p. 5):

[I]t is the process through which reasons become causes of the courses of action adopted by social subjects. Their subjective internal deliberations – internal conversations – are responsible for mediating the conditional influence of objective structural and cultural factors upon social action.

Although reflexivity has always been a mental property of human sociality, it has nevertheless taken various forms under different historical periods. First, under modernity, reflexivity becomes the link between self and society (or agency and structure), thereby enabling people to react to their social situation in ways which are no longer governed by tradition. Under a contemporary globalised society (late modernity), people are increasingly confronted with new and unfamiliar circumstances in which habitual patterns of behaviour (descriptive norms) do not provide a reliable normative guide for action. Under these circumstances, agency’s reflexivity is enhanced, thus forcefully undermining social structures and subverting the normative force of traditional institutions, which during early modernity provided a stable “habitus” and guidelines for action.

In short, sociological efforts to address the postmodern critique of totalising knowledge, but also the attempts to meet changing social conditions caused by the consequences of globalisation, have resulted in a number of social theories which to various degrees have ushered in a new notion of society and its corresponding concept of social action. Some theories, such as those developed by Habermas and Luhmann, retain a totalising and universal ambition (they deal with, and include, all that is social) and continue to promote the project of modernity as a rational construct. In the wake of globalisation, however, the need to break into new theoretical territories which are free from the constraints of universalism has become palpable. Theories of risk society, reflexive modernity and late modernity, which we shall discuss below, represent attempts to revise the classical ideas of society and modernity in view of social developments which characterise the contemporary global society. The limited space herein does not allow for a presentation of the way these two main debates have branched into various research approaches within legal sociology and how they have given rise to studies of law-in-society from feminist, Focauldian, Bourdusian and system theoretical perspectives, to mention just a few (for an overview see Samuels 2013; Dezalay and Garth 1996; Wickham 2013; King 2013).

The second group of socio-legal scholars, who have had an impact on the development of legal sociology, including Ehrlich, Pound and Petrażycki, were, as mentioned in Chap. 3, “jurists” whose primary commitment was to law. In other words, they were concerned with ensuring law’s “well-being” and integrity as a tool for realising social justice (we also explained that the notion of a “jurist” was to be understood as an “ideal type”; see Cotterrell 2013). Although jurists’ commitment to the law may be expressed in philosophical as well as sociological terms which go beyond the practical conception of the law deployed by practicing lawyers and judges, their work nevertheless remains closely linked to problems associated with the operations of the law and the limits of legislation. Therefore, they are often not interested in developing sociological theories, and alternatively they steer their studies away from theorising. Instead, they employ sociology (or philosophy as the case might be) as a tool to better understand the law and its operations in a social context, in order to improve the science of law and legal education and to develop law as a more effective instrument of social engineering (cf. Nelken 2009, pp. 1–2; Banakar 2003, pp. 189–222). Thus, our second group of scholars influenced the development of legal sociology, not by developing sociological theories of law but by criticising 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 juridicial decision-making should adopt the methods and insights of the social sciences, in order to counterbalance this shortcoming. As we pointed out in Chap. 3, Ehrlich and Petrażycki refuted natural law theories which sought a permanent and universally valid basis for law in nature and/or divine reason and contested the claims of legal positivism that a norm became a legal rule only if it was posited by the state (new versions of legal positivism, however, do not treat the state or the sovereign as the primary source of law; see Gardner 2001).

They too worked with a concept of society which belonged to early modernity and to the era of industrialisation, yet it continues to be used frequently in socio-legal research which studies the discrepancies between the claims of law and the reality of legal practices. Ehrlich’s concept of “living law,” however, has demonstrated great resilience in the wake of globalisation, and it has been employed more recently to throw light on the forms of law and regulation which are generated outside the nation state and at the transnational level (see Hellum et al. 2011, pp. 4–5) as well as studying socio-legal mechanisms in non-Westerns settings (see Urinboyev and Svensson 2013). The continued relevance of Ehrlich can be explained in at least three ways: (1) in line with the argument promoted in Chap. 11, we can maintain that Ehrlich’s identification of the norms of social organisation, and how people organise themselves spontaneously as the essence of law and legality, is based on a historical understanding of the relationship between law, morality, community and justice which continues to have empirical relevance for understanding the role of law in contemporary society; (2) Ehrlich’s theory of “living law” was a critique of legal positivism (see the discussions on “methodological nationalism” in Chap. 2). As the empirical reality of globalisation undermines the ideology of legal positivism, Ehrlich’s ‘living law’ is deployed to construct an alternative understanding of law’s development, for example in relation to the growth of transnational law, and (3) Ehrlich’s theory was a product of the pluralistic environment in which he lived, and although he did not intend to create a culturally pluralistic theory of law, as argued in Chap. 7, his “living law” is nevertheless sensitised to socio-cultural diversity, and it can therefore be used to study the social and cultural implications of globalisation in relation to the law.

Initial interest in the sociological studies of law, which was reflected in the works of Durkheim, Weber, Ehrlich and Pound and others, somewhat abated during the period between the two World Wars (cf. Black and Mileski 1973, p. 2),³ but it received new impetus in the decades following World War II as the social landscape underwent dramatic changes. Renato Treves and Glastra van Loon describe the revival of legal sociology in terms of industrialisation and urbanisation:

The general development of industrialisation and urbanisation, 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, p. 1)

Thus, legal sociology emerged as a distinct field of research after World War II and consolidated itself in Western European and North American universities from the mid-1960s onwards.⁴ As Treves and Glastra van Loon explain, legal sociology developed partly to explain and analyse the interaction between static legal structures and the forces of industrialisation, which were speeding up the rate of social change, and partly to seek ways of reforming society, i.e. carrying out social engineering. Legal sociology and other branches of sociology, such as social/public policy research and criminology, were promoted as specific research areas once they attracted the attention of policymakers and subsequently were allocated research funding. Their attractiveness was partly due to their focus on law, policy and regulation, but also because they employed empirical rather than normative methodologies.

Building on the legacy of legal realism (the works of scholars such as Oliver Wendell Holmes and Roscoe Pound), 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, p. 9). The founders of law and society, according to Trubek (1990, p. 9), were 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, legal sociology 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 nineteenth century, expanded rapidly in Western countries through governmental intervention in various walks of life from the 1950s onward. Industrialisation furnished society with stable employment opportunities for large groups, including the working classes, and thus laid the ground for society’s long-term socio-economic expansion. The welfare state may be seen as a society-wide policy for addressing disparities in income distribution, political power, opportunities and burdens which were brought to the surface as a result of industrialisation. These policies, however, were motivated and driven by an inclusive ideology that sought to integrate a diverse population, by introducing social policy measures aimed at protecting all citizens (see Young 1999). Viewed from a different standpoint, we could argue that welfare strategies were also devised to neutralise the social conflicts generated as a result of industrialisation’s economic expansion. These strategies redistributed some of the wealth, rewards, opportunities and burdens throughout society, but they also reformed social conditions in order to engineer a “better” society—“better” not only in terms of being more efficient and productive, but also in terms of social justice. The welfare state has also been described as ‘socially controlled welfare capitalism’, in which ‘state intervention serves to curtail the free workings of the market in order to moderate or cancel out its more adverse effects on labour’ (Lane 1989, p. 586). During this period we also notice a proliferation of ‘protective legislation and collective agreements’ in Western countries, such as the UK, to strengthen the employment rights of workers (Lane 1989, p. 587). Inadvertently, these welfare measures contributed to the emergence of the consumer society.

The notion of ‘social policy’ is not, as Marshall (1965, p. 7) noted, ‘a technical term with an exact meaning’, but refers commonly ‘to the policy of governments with regard to action having a direct impact on the welfare of the citizens, by providing them with services or income’. Social policies therefore consist of action- and problem-oriented measures, devised by the state (or the government) and expressed and authorised in law.⁵ They are generally rationalistic instruments incorporating the belief in the likelihood of reforming society through the applications of socio-economic programmes. Moreover, they are top-down governmental interventions in the lives of citizens and their everyday activities and relationships, which are introduced through legislation or administrative ordinance and implemented by various authorities. Therefore, they represent a fusion of rationalism, a belief in social and moral progress, confidence in the normative force of law and a concern for social justice and equality. Hence the question: how should we employ the law to support social policy formations which are designed to govern or to change the behaviour of individuals and groups in an effective manner?

A host of social policy measures were introduced through legislation or 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, thus resulting in increased juridification of the social sphere (Habermas 1984; Teubner 1987). Law was often employed by the welfare state as a regulatory device to bring about not only social integration and social justice, but also conformity and social change. Moreover, it was assumed that the law had universal applications and could be treated as superior to, and independent of, other norm-generating social fields. By 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 socio-cultural mechanisms and imperatives (for an early but influential post-war study, see Selznick 1949). Law’s dependency on these institutional mechanisms caused divergence between the intentions of the legislature and policymakers, on the one hand, and the outcome of policies that were executed by law, on the other. The insight that law was not an effective vehicle for social engineering is shared commonly by various approaches within legal sociology, and some have argued that it is not only an ineffective exercise (cf. Griffiths 1995),⁶ but it also endangers the very autonomy of the legal system (for a debate, see Paterson 2006). As we argued in the introduction, the discrepancy between “law in books” and “law in action” must be analysed in terms of the autonomy of modern law; the “gap” cannot be closed without undermining law’s system autonomy.

Many policymakers continue to entertain a conception of society which privileges security, stability and certitude in social relations. For them, social relations possess durability in time and space, which in turn allows for devising public policies aimed at shaping and reshaping individual and collective conduct in such a way as to control and direct social developments. Nevertheless, the spread of globalisation and the advancement of new technologies impact on social organisation and the developments of law and regulation. As the consequences of globalisation gradually permeate various walks of life, traditional forms of regulation give way to risk management strategies (RMSs) and forms of ‘soft law’ designed for promoting forms of governance in contrast to regulation. This marks the move from the era of the welfare state, when the state sought to stabilise society through social integration, to the era of globalisation, when stability was sought through market integration—Lane (1989) calls it the move from ‘welfare capitalism’ to ‘market capitalism’. It also corresponds with the move from industrialisation, during which time economies were dependent on manufacturing and wage labour, to post-industrialisation, in which economies are globalised and shaped by the production and consumption of services and information.

The spread of globalisation has taken place in concert with the growth of neo-liberal ideology and other politically conservative approaches, which since the 1980s have sought the dismantling of the welfare state (Lane 1989; Centeno and Cohen 2010). As national and local economies expanded and turned into global market places, businesses started to demand the liberalisation of trade regulations and the introduction of more flexible labour and employment laws which would potentially reconstruct the relationship between employers and employees in such a way as to allow the former to compete in an increasingly volatile global market (see Chap. 13). Multinational corporations moved outside the regulatory reach of nation states—while national governments became increasingly unwilling to regulate them—thus becoming accountable mainly to their shareholders scattered across the globe. At the same time, the welfare state came under critical scrutiny and was criticised for failing to resolve social problems (from unemployment and housing to criminality), for its economic inefficacy and for creating “welfare dependency” among certain social groups. ‘For neo-liberals,’ Williams explains (2000, p. 249), ‘the welfare state is a threat to freedom, is ineffective and inefficient and is economically, politically and socially damaging’. Public policies providing social insurance and employment rights and introducing redistributive taxation were defined as incompatible with the far more efficient operations of the markets. By deregulating the economy and cutting back on public expenditure, one could lower corporation and income taxes, which in turn would stimulate competition, promote investment and increase productivity and economic growth. In a report on globalisation and the welfare state, Scharpf (2000