Social Scientific Studies of Law

The sociology of law distinguishes itself from, for example, philosophy of law or legal history, by fulfilling three interrelated and broadly defined criteria. Firstly, it borrows its concepts and theoretical frameworks from sociology. Secondly, it conceptualises law in terms of social systems, institutions, processes, practices, actions and experiences, thus treating it either as a socially dependent or independent variable. Thirdly, it adopts an empirical approach to collecting the data it requires in order to conduct its analysis (Ferrari 1989, p. 9). The notion of “empirical,” as it is used here, should be understood in broad terms. Some research orientations have adopted a strict positivistic interpretation of what empirical data means, i.e. they study only what can be measured through, for example, surveys and structured interviews, while other orientations use more interpretive methods, such as participant observation, open interviews and discourse analysis. These two approaches generate different definitions of law and understandings of the role of the sociology of law. For example, Baumgartner (2000, p. 406), who is influenced by Black’s (Black 1976) positivistic approach, defines the sociology of law as ‘the scientific study of legal behaviour’, a study which deals only with what is ‘observable and measurable’ while aiming to ‘predict and explain legal variations of every kind’. Sutton (2001, p. 8), describes law as ‘a group activity’ and the sociology of law as the study of ‘the legal behavior of human groups’. Sutton’s definition appears to be the broadest in terms of the theoretical and methodological constraints to which it subscribes. Not only does Sutton avoid specifying how sociological studies of law should proceed methodologically, but he also avoids subscribing to any concept of law. At least in principle, Sutton allows the possibility of a form of “legal behaviour” which exists independently of positive law and thus of the state. Baumgartner, on the other hand, adopts a strictly positivistic approach, which methodologically recognises only what is “observable and measurable” as its proper subject matter, and theoretically equates law with positive (state) law. These two definitions show that the sociologists of law can—and often do—differ on how the subject should be conceptualised and studied. These disagreements should be viewed against the backdrop of the multifaceted nature of the law and the epistemic tension we discussed in the previous chapter.

The sociology of law studies legal behaviour, institutions and systems in the tradition of Durkheim and Weber, who used the study thereof as a means to investigate the underlying social mechanisms of modernity. Law provides sociologists with a standpoint from which they may view and study a range of theoretical and substantive issues such as social differentiation, socio-cultural integration, forms of authority, legitimacy, the role of rationality, the exclusion or criminalisation of groups, the rise of professions, equality of access to wealth and resources or the significance of gender, sexuality and race in social organisation. As Cotterrell (2005, p. 504) explains, Durkheim seemed to ‘approach legal materials mainly for their capacity to provide, in the documentary form of ancient and modern codes, “visible symbols” of social solidarity; an “index” or measure of this elusive phenomenon’. Durkheim’s analysis of law is thus ‘a methodological device for examining something that is, apparently, of greater sociological significance than law itself’ (Cotterrell 2005, p. 504). To give a concrete example, if a sociologist of law decides to study unlawful gender or ethnic discrimination, it is most probably not because he or she wishes to explore judicial interpretation, or how doctrine is employed in the process of legal reasoning to decide discrimination cases; instead, it is more likely that he or she seeks to understand how the interpretation and application of anti-discrimination laws help to constitute race and gender-related social inequalities in society (Banakar 2004). Expressed differently, how law views and treats unlawful discrimination provides the sociologist with a vantage point from which to study (1) how law internally reconstructs social inequalities in society and (2) how society copes with conflicts of values, interests and worldviews by using formal methods of dispute resolution.

Most sociological studies of law focus on its external manifestations, for example on the rate of litigation in a specific jurisdiction, asking why one group is more likely to litigate than another, or they examine the attitudes of ordinary citizens to new legislation, asking how the introduction of a new law influences behaviour. Such studies often ignore concepts and ideas which are internal to law and legal reasoning and through which law constructs its images of society and impacts on social relations. This tendency has caused a great deal of misunderstanding in regard to the sociology of law’s potential to grasp and study law’s normativity (this point is discussed in detail in Chap. 11). Looking at the sociologist’s neglect of legal ideas in a positive light, we could argue that it frees him or her from the internal culture of the legal system and the normative and epistemological assumptions about the law and legality, which are often taken for granted by officers of the law and academic lawyers, as well as by many laymen. Bourdieu (1987) treats these taken-for-granted assumptions as the ‘symbolic power’ of the law (for a discussion see Chap. 11). The sociologist’s method of questioning the way law is conceptualised internally, enables him/her to identify the sources of law in social formations and associations which have come about and exist independently of the state (Ehrlich’s ‘living law’ exemplifies this point). It also makes it possible to ask questions which fall outside the paradigm of legal studies regarding, for example, the objectivity of legal reasoning. This is partly why many sociologists and social anthropologists regard social interactions and relations as the primary focus of their study while treating the law as a ‘residual category’ (Sarat 2000, p. 195). This can lead them to emphasise the interests and experiences of ordinary men and women in general, and marginalised groups in particular. As a result, the majority of socio-legal research appears to foster a “critical” rather than a “neutral” understanding of the ideology of law, thus highlighting issues related to social justice, ‘marginalised groups, peripheral institutions [and] deviant behavior’ (Abel 1987, p. 827) and generally depicting law in a negative light.

However, freedom from the constraints of law’s internal culture can mislead the sociologist into assuming that the legal system’s modus operandi is of no importance to the studies conducted from a vantage point external to the legal system. As a result, the sociologist can be hoodwinked into treating one manifestation of the legal system, such as the rate of litigation in one jurisdiction or the attitude of certain groups to a particular law, as representing the totality of law in action. A more complete picture of the relationship between law and society emerges once the sociologist recognises that law’s internal operations and processes are in constant interaction with and inseparable from the extra-legal factors which constitute its social environment. Law’s normativity—the intangible quality central to law which creates the sense of obligation and duty, rights and entitlements, emerges out of the interplay of operations which constitute the inside and outside of the law. As we shall demonstrate in the coming chapters, the sociology of law is capable of studying law’s normativity, but it does that on its own empirical terms, rather than on mainstream legal studies’ analytical terms.

“Law and Society,” as I employ the term here, is primarily an American movement which was established after the Second World War mainly through the initiative of sociologists who had a vested interest in the study of law (Friedman 1986; Garth and Sterling 1998). The major difference between the sociology of law and Law and Society is that the latter does not limit itself theoretically or methodologically to sociology and tries instead to accommodate insights taken from all social-science disciplines. Not only does it provide a home for sociologists, social anthropologists and political scientists with an interest in law, but it also tries to incorporate psychologists and economists who study the subject.

Although Law and Society has in principle relied on and used all social sciences, it has nonetheless received more input from mainstream sociology, social anthropology and political science than from other disciplines. Psychology or economics, in particular, have had only a marginal impact on the development of the movement, partly due to the fact that early on they formed their own “law and psychology” and “law and economics” associations and journals. An excellent example of research in the law and society tradition is to be found in Order Without Law, where Ellickson (1991) uses different social scientific ideas, including economic theories, to study how residents of Shasta County, a rural area in California, resolve a variety of dispute s that arise from trespassing by cattle and fence-tending.

Law and Society, according to Simon (1999, p. 144), has brought about ‘change in legal education, judicial administration, and political discussion of law. It [has also] helped complete the realist shift of law school textbooks from cases to material and notes [and] achieved recognition in the law through the creation of the significant social science functions within the court system’. Having said that, Simon (1999, p. 144) admits that the Law and Society project still ‘finds itself not only incomplete but also increasingly uncertain about its identity or future’. This uncertainty is not limited to the development of Law and Society, though, as it affects social and legal sciences equally. To borrow from Simon (1999, p. 146) again, it is caused largely by the collapse of ‘the sense of confidence associated with establishing social science as a critical grammar of power’, which in turn is linked to ‘a sense of crisis and decline whenever you find the term social…’. We shall return to the crisis of the ‘social’ in Chap. 12 when we discuss the transformation from an industrial to a post-industrial society and its corresponding ideological move from welfare to market capitalism.

Sociological jurisprudence is also linked closely with the sociology of law and Law and Society studies. It is, however, much older than the Law and Society movement and more interested in legal theory and legal education (see Ehrlich 1936; Gurvitch 1947; Petrazycki 1955; Pound 1943; for an authoritative overview see Treviño 2013). It is also often associated with Roscoe Pound (1870–1964), who is also known as a prominent philosopher of law, and through him with the American legal realist movement. However, there are historical and theoretical reasons for including a number of European scholars, such as the Polish-Russian jurist Leon Petrazycki (1867–1931) and the Austrian jurist Eugen Ehrlich (1862–1922), under this rubric, as these scholars were critical of analytical jurisprudence for its conceptual formalism and neglect of empirical facts such as the role of 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 social sciences, in order to counterbalance this shortcoming. Moreover, they were “jurists”—the jurist concept is used here as an ideal type to refer to lawyers who are committed to promoting law’s general “well-being.” Law’s “well-being,” Cotterrell (2013, p. 511) points out, is a variable socio-historically determined idea which differs significantly in time and place and thus does not lend itself easily to a clear definition. Furthermore, it represents attempts made internally to uphold law’s central values of justice and order, which are both technical and cultural at the same time. Cotterrell (2013, p. 511) explains:

The jurist’s focus could be said to be on law as a practical idea in general, or as embodied in the legal system (or type of legal system) which the jurist serves. The focus is on the worth of law, its meaningfulness as a social institution. To this extent, a juristic perspective goes beyond the everyday practice of law in courts or lawyers’ offices, but is one of committed, not disinterested analysis or observation of law, its coherence, fairness, consistency, reputation, accessibility, enforcement and effectiveness. That suggests a theoretical sensibility, but not necessarily adherence to any wide-ranging theoretical system.

The founders of sociological jurisprudence were jurists in the sense described above by Cotterrell (2013, p. 518), in that they looked ‘beyond law’s technical efficacy to its existence as an idea embodying cultural expectations’. The group of jurists we are concerned with here favoured empirical social sciences (rather than analytical or moral philosophy) as their primary vehicle for enquiries. Nevertheless, they distinguished themselves from mainstream sociologists, such as Emile Durkheim and Max Weber , by directing their intellectual efforts towards developing the law, to which they were committed, rather than towards advancing sociology as a discipline. While mainstream sociologists used law to study social developments and issues arising out of the rise of modernity, Petrazycki , Ehrlich and Pound employed social sciences to transform legal education and practice and to devise a scientific concept of law. At the centre of this transformative legal project, we find theories and concepts which are empirically tuned and broader in scope than what most practicing and academic lawyers recognise as the law proper.

Pound criticised and challenged the legal formalism (which used strict conceptual logic) that dominated American legal thought of his day for being mechanical, artificial and out of touch with the needs of society. He argued instead for a jurisprudence which placed the human factor and condition—rather than logic—at the heart of its analysis. He borrowed insights from the philosophy of pragmatism and the new discipline of sociology to develop a new approach to law, legal research and legal education, which led him to argue that it was ‘law in action’ and not ‘law in the books’ which constituted the basis of law and legal institutions. In addition, Pound criticised the individualist theories and standards of ‘legal justice’ to which lawyers adhered, and instead he urged both legal scholars and practitioners to work towards a concept of ‘social justice’ which was informed by the standards of sociologists.

European scholars went further than Pound by directly challenging the underlying ideology of legal positivism. They urged lawyers to recognise the vital role played by the informal and unofficial mechanisms of social control in creating legal institutions and moulding legal behaviour. In this way they confronted the jurisprudence of their time by presenting the social forms of law, rather than the rules posited by the state, as the basis of legal order. For them the state could not be the primary source of law for the simple reason that its existence presupposed a form thereof. Petrazycki and Ehrlich argued, each in his own way, for an empirically-based concept of law which was broader than state law and existed independently of any outside authority .

Using our example of unlawful discrimination, a sociologist working within this tradition would begin his or her study by analysing anti-discrimination laws. He or she would recognise and take into consideration the internal point of view of lawyers by studying legal cases and court decisions to settle disputes based on gender or ethnic discrimination. However, he or she would not limit the sphere of inquiry to positive law and its application by the courts but would also pay attention to how these disputes are settled by extra-legal means, sometimes outside the courts and in the shadow of law. If the sociology of law tends to view law from the outside, by emphasising how it interacts with other social factors and institutions, sociological jurisprudence tries to view how it is seen from both inside, i.e. how it is experienced by legal practitioners and others who participate in its processes, and outside. The dialectical interaction between the internally and externally produced concepts, ideas and images of law lies at the heart of many studies which fall within this tradition (Banakar 2003).²

To sum up, the sociology of law, Law and Society and sociological jurisprudence began somewhat differently, in different times and places and with different aims in mind; nonetheless, there is more which unites than separates them. As a result, many of the individual studies couched within these three orientations are hardly distinguishable from each other. These three orientations demonstrate the diversity of aims, theory and methods within sociologically-inspired studies.

Socio-Legal studies in the UK have grown mainly out of the interest of law schools in promoting interdisciplinary studies of law. Whether regarded as an emerging discipline, sub-discipline or a methodological approach, the subject is often viewed in light of its relationship to and oppositional role within law (Thomas 1997, p. 3). It should therefore not be confused with the legal sociology of many western European countries or the Law and Society scholarship in the US, which foster much stronger disciplinary ties with social sciences. In the past, it has been presented as the applied branch of the sociology of law and criticised for being empiricist and atheoretical (Campbell and Wiles 1976; Travers 2001). Travers (2001, p. 27), for example, regards Socio-Legal studies as a subfield of social policy, ‘mainly concerned with influencing or serving government policy in the provision of legal services’, adding that it ‘has given up any aspirations it once had to develop general theories about the policy process’ (Travers 2001, p. 26).