Introduction: Emerging Legal Uncertainty
(1)
Sociology of Law, Lund University, Lund, Sweden
Abstract
This introductory chapter begins by outlining the themes which run through the pages of this book before it explains how they are related to each other and why they lead us towards a deeper understanding of socio-legal theory and research. The overarching question guiding this inquiry is how legal sociology can produce an empirically valid and theoretically sound insight into the development of forms of law and legality in our contemporary global society. To answer this question we need to conceptualise law and legality, on the one hand, and elaborate on the properties of our contemporary society, on the other. The former involves engaging with debates on law and comparing various understandings of legality—among other things asking if the law is a rational system of norms, a field of practice or a form of experience. The latter entails comparing social conditions of a contemporary global society with earlier forms of social organisation.
The field of socio-legal research1 has encountered three foundational challenges over the last three decades. Internally, it has been criticised for paying insufficient attention to legal doctrine and for failing to develop a sound theoretical foundation.2 Could ‘socio-legal research say anything about justice?’ asked Cotterrell (1995, p. 297), and could it engage forcefully in legal debates? Externally, it has been forced to reconsider its concepts of law and legality, which had been overtaken by the changing makeup of law and regulation (Santos 1995; Gessner 1995; Twining 2000). In the wake of globalisation, the understanding of law as a nationally based body of legal rules, sources and institutions has come to be contested by forms of law and legality originating from multiple sources inside and outside nation states. The internal critique, which highlighted the theoretical shortcomings of the field, indicated the coming of age of socio-legal research, whereas concern with the changing character of law and regulation was a response to the social consequences of globalisation and the gradual move away from an industrial to a post-industrial (information) society.
Globalisation has reconfigured the social landscape of modernity by intensifying economic exchanges and trading interconnections across the world, which in turn have interlocked social, economic and cultural activities and processes amongst nations and beyond nation states, thereby bringing about a number of interrelated societal and ideological changes. Furthermore, it has compressed time-space, eroded socio-cultural borderlines, thus creating hybrid cultural and legal spaces, and brought about a gradual transformation of the nation state. At the same time, it has cast doubt on the viability of the welfare ideology, undermined traditional forms of regulation and subsequently recast the relationship between law, state and society. The socio-cultural consequences of globalisation, maintains Twining (2000, p. 10), revive and recast old issues ‘such as those surrounding sovereignty and war’, make familiar concerns regarding the environment and the regulation of multinational corporations more urgent and create new challenges, many of which concern the form and the role of law in society. Surprisingly, the role of globalisation in prompting new forms of law and legality at the national and international levels has not been explored sufficiently within mainstream legal studies. One of the reasons for this lack of attention to the implications of globalisation lies, according to Michaels (2013, p. 291), in legal theory’s unwillingness to abandon the nation state as ‘the ultimate point of reference for both domestic and international law’. Not even international law scholars, according to Berman (2007, p. 1159), have paid attention to the significance of legal pluralism and hybrid legal spaces which are created as a result of globalisation. Instead, these scholars have placed emphasis on:
[F]ormal state-to-state-relations, the creation of overarching universal norms, or the solution of disputes by locating them territorially in order to choose a single governing law to apply. All of these approaches attempt to eliminate hybridity altogether by imagining that disputes can and should be made susceptible to a single governing normative authority. (Berman 2007, p. 1159)
Notwithstanding mainstream legal theory’s ‘methodological nationalism’ (Michaels 2013, p. 291), we have been observing an emerging global legal pluralism and the rise of what Berman (2007, p. 1157) calls ‘multiple normative communities’ and ‘hybrid legal spaces’, which are propagated by several overlapping developments, including (1) the socio-cultural diversification of modern societies, e.g. the spread of diaspora laws such as migrant groups’ legal practices in the host country that are based on their home countries’ religion and customs, (2) the proliferation of law-generating centres at the ‘regional’ level, e.g. EU and ECHR, (3) forms of law and regulation at the “transnational” level, e.g. lex mercatoria and the internal governance of multinational corporations, and (4) the expansion of cyberspace as a multi-jurisdictional arena.3 Emerging legal pluralism, which we have been witnessing over the last three decades, has been “decentring” the law, causing legal fragmentation and normative uncertainty. ‘At the dawn of the 21st century’, writes Dermas-Marty (2009, p. 1), ‘the legal landscape’s primary characteristics are imprecision, uncertainty and instability’. Furthermore, the anarchic forces of globalisation are ‘ordering multiplicity, without reducing it to sameness, admitting pluralism without giving up on building a common law with a common measure for fair and unfair…’ (Dermas-Marty 2009, p. 1). Douglas-Scott (2013, p. 146) goes further, warning against the expanding legal pluralism which has been largely celebrated as if ‘only benefits could spring from its complex nature’. ‘On the contrary’, she continues, ‘privatisation, technicisation and greater flexibility may threaten human well-being, by removing state benefits or failing sufficiently to regulate certain measures’ (2013, p. 146).
This book engages with both the internal and external challenges posed to the study of law in society from a methodological standpoint. It will address the first two challenges concerning the relevance of socio-legal research to the law, by demonstrating that legal sociology has much to say about justice as a kind of social experience and that it has always engaged with forms of normativity, albeit on its own empirical terms rather than on legal theory’s analytical terms. It will explore the third challenge, which was posed by the changing nature of society, in light of the ongoing “transition” from an industrial to a late modern, post-industrial information society. It will further argue that “transition,” understood as moving from one long-term state of affairs, such as the agrarian society, to another durable state of affairs, such as the industrial society, is no longer a feasible future scenario with which we can work. Constant change, instead, is to be viewed as the permanent property of the relationship between law and society—and thus also the focal point of socio-legal inquiry. As we leave behind the durable social conditions of early modernity, which were shaped by industrial relations, and move towards late modernity, which is characterised by the socio-cultural implications of globalisation and the spread of digital technology, the focus of our analysis has to shift from the study of social change (as an event) to the examination of the rate of ongoing change (as an unceasing process) in society. Under late modern conditions, constant change is paradoxically the only empirically consistent property of society. This book partly aims at exploring what happens to law and regulation when the structural and institutional relations which uphold and mediate legal and policy measures over time change faster than it takes law and regulation to consolidate new norms and values. Can law and regulation step outside ‘the river of flux’, to borrow from Heraclitus (cf. Kirk 1954), and supervene on material flux and reshape the flow of the constantly changing social life, or do they become an integral part of the unrelenting changes? What if they also join the flux and, as Douzinas and Warrington suggested (1994, p. 3), become ‘open, decentred, fragmented, nebulous and multiform’? To rephrase Bauman (2005, p. 1) liberally, how can the type of law and regulation which cannot keep its own social and legal form or ‘stay on the course for long’ exert a normative force on society?
The chapters in this book were initially conceived as discrete research papers and essays in legal sociology engaging with the three challenges outlined above. They have been revised and developed before being presented here in one volume as interrelated studies of the role of normativity in socio-legal research, on the one hand, and the challenges posed to modern law by the socio-cultural implications of globalisation, on the other. Nevertheless, it is important to emphasise that they remain, and should be read, as separate studies which map some of the central debates of the socio-legal research against the changing relationship between law and society. As we make our way through the chapters, we shall note a gradual shift of focus from the study of “certainty” associated with the long-term relations of industrial society, which represents the ideal conditions of early modernity, to “uncertainty” caused by the acceleration of the rate of social change, which captures a growing trend in our contemporary forms of social organisation. The case will be made that greater attention to the growing contingency of social actions and processes, the increasing reflexivity of the individual vis-à-vis social structures and the subsequent rise in insecurity, risk and discontinuity provide an empirically more fruitful description of societal developments in contemporary society. It will also provide an empirically sound point of departure for constructing forms of regulation which respond to how the social reality around us is changing, instead of seeking to revitalise outmoded images of social organisation. Many of these outdated images belong to the early stages of modernity, defined by the enduring relations of industrialisation which allowed for experimenting with social engineering but once applied to present conditions fail to grasp the transitory dynamics of the late modern digital/network society. The concern with uncertainty is developed and articulated progressively as our analysis is repeatedly, albeit inadvertently, drawn to the transformation of the seemingly solid relations and durable institutions of early modernity into fleeting interactions and transient networks which increasingly define present-day society.
There will be occasional overlaps between discussions in some chapters and on certain topics, such as the duality of law, the doctrinal method, socio-legal methodology and risk management. Moreover, concepts such as rationality, power, normativity, contextualisation, community, identity, reflexivity, risk and security will be discussed in more than one chapter. Nonetheless, by viewing these topics and concepts from different standpoints, and analysing them in different contexts, we deepen our understanding of the methodological issues of socio-legal research, generally, and the role of law in contemporary society, in particular. To borrow a metaphor from Wittgenstein, the occasional overlaps represent separate attempts to traverse the same streets as part of different journeys through the same city (Gasking and Jackson 1967, p. 51). Each time we approach and walk through the same street from a different direction, we see it from a different angle and learn not only more about it, but also about how the various parts of the city are interconnected. Needless to say, the streets through which we shall pass more than once have been carefully selected, as they are amongst the more important thoroughfares in our little town.
I shall begin this introductory chapter by outlining the main themes which run through the pages of this book, before I move on to explain how issues raised in various chapters are related to each other and lead towards a deeper understanding of the same set of issues. The complex set of problems at hand concerns how legal sociology can produce an empirically valid and theoretically adequate insight into the ways in which forms of law and legality are developing in our contemporary global society. This in turn requires a conceptualisation of law and legality, on the one hand, and an elaboration on the properties of our contemporary society, on the other. The former involves engaging with debates on law and comparing various understandings of legality—among other things asking if the law is a rational system of norms, a field of practice or a form of experience. The latter entails comparing social conditions of a contemporary global society with earlier forms of social organisation.
1 Methodology
1.1 Socio-Legal Methodology
A broadly conceived concern regarding socio-legal methodology runs through the pages of this book, serving as one of the three leitmotifs of the studies presented herein. “Methodology” captures the interaction between theoretical assumptions and methods (or techniques) of research. Expressed differently, methods of inquiry are always founded on certain epistemological assumptions about social reality. Sociology of law consists of many methodological approaches which, to a large extent, reflect various paradigms within mainstream sociology (for a comprehensive discussion, see Banakar and Travers 2005, 2013). Notwithstanding this diversity of approaches, the socio-legal field as a whole distinguishes itself not only from mainstream legal studies, but also from Critical Legal Studies (CLS), which is on the whole sympathetic to legal sociology, by deploying an empirical epistemology which requires the use of social scientific methods in the study of law. By reflecting on socio-legal methodology we can tease out some of the conflicting epistemological assumptions and social-theoretical suppositions about the study of law, which are otherwise taken for granted.
Methodological deliberations take centre stage in some of the chapters, while they indirectly inform debates in the others. How can we employ social theory and methodology to study the law, legal thinking, legal ideas, legal practice, legal institutions and the legal system? What is “law” or “the law” from a social-theoretical standpoint, and how (and why) does it differ from the concept of law used within jurisprudence and legal theory? What do we gain—and what do we sacrifice—by describing and analysing the law not on its own terms but through the lenses of social theory? Every chapter in this book engages with some aspect of these questions by examining the tension between the social-theoretical and legal discourses which constitute the disciplines of sociology and law, respectively.
The first two chapters following this introduction aim jointly at providing an overview of some of the main research themes and debates within the field of socio-legal research. Briefly, Chap. 2 unfolds the general methodological approaches of socio-legal research by comparing them with those employed within traditional legal studies. It also highlights how “sociological imagination,” which drives a great deal of sociological theorising and research, differs from the ‘authority paradigm’ (cf. Samuel 2009) which informs traditional legal scholarship. These debates are then placed in the context of globalisation, the “methodological nationalism” which has dominated both legal thought and much of social theory, and the transformation of the state. Chapter 3 presents the diverse approaches among sociological studies of law by distinguishing between the “sociology of law,” “Law and Society,” “sociological jurisprudence” and “socio-legal studies.” It then contrasts top-down and bottom-up studies of law in society as two basic methodologies which cut across disciplinary divisions within the field, consequently offering an alternative view of how the socio-legal research is conducted. We then discuss critically the so-called “gap” problem by reassessing the significance of studies of the discrepancy between the law as a body of rules with a degree of autonomy and the law as an institutionalised form of practice. This concluding section argues that the gap between ‘law in the books’ and ‘law in action’ and conceptual separation of law from justice, are brought on by the modern law’s “disembeddedness”, i.e. dislodging from its societal context.
The disembeddedness of modern law is never total and the legal system’s autonomy from other social domains and processes is always a question of degrees rather than an either/or issue. We might separate law from justice conceptually, but empirically, people’s experience of law and legality remains in various ways linked to justice. Chapter 4 expands on this point by examining the debate between Alexy (2002) and his critics on how positive law and justice are related. It also contrasts normative philosophical approaches, which describe law and justice at the level of legal systems, with an empirical approach which seeks to capture how justice is experienced at the mundane level of everyday reality. However, the empirical approach to the study of law, which employs social theoretical constructs to describe and analyse legal phenomena, is not without its critics and its ability to grasp the law’s normativity has been questioned by legal scholars. Chapter 5 engages with one aspect of this critique by examining Denis Galligan’s argument that adopting a social scientific approach to the study of the law, which describes the law in extra-legal terms, amounts to losing sight of law’s distinctiveness. This chapter also identifies three ideal typical methods of contextualising the law, which seek to re-embed the law in its societal context, arguing that each approach reverses the de-contextualisation effects of modern law to different degrees.
One of the points made in this book is that attempts to “re-embed” the law while preserving its system autonomy amounts to a contradiction in terms, but a contradiction which is generated in the first place by modernity and its emphasis on rationality (we shall expand on this point below—see Sect. 1.3). From Chap. 6 onwards we begin to explore the limits of modernity in constructing the relationship between law and society in a rational manner. Chapter 6 uses Franz Kafka’s office writings and some of the cases he processed as an insurance lawyer, on the one hand, and images of law, bureaucracy, hierarchy and authority in his fiction, on the other, as a starting point for introducing his rhetoric as a method for highlighting the resilience of the lifeworld in the face of rational attempts to order human conduct (cf. Travers 2009). This chapter demonstrates how the everyday experience of reality subverts efforts to regulate life through formal measures, thus articulating a critique of modernity as a rational project, a notion which is expanded in the subsequent chapters. Franz Kafka’s concept of law and his images of legality take us beyond the rational (instrumental) understanding of the law advanced by various schools of legal positivism, revealing it as a form of experience involving more than a grain of contradiction and irrationality. Chapter 7 explores the disciplinary tensions between law and sociology, by focusing on the duality of norms and facts in the context of the debate between Hans Kelsen and Eugen Ehrlich. Following up on the role of rationality in modernity, this chapter also highlights legal positivism’s neglect of the role of the non-rational (i.e. those qualities of modernity which do not lend themselves to calculations and predictions) and its imperative need to conceptualise law’s fragmentary and contradictory bundle of rules, decisions and practices as a coherent whole. Chapter 8 broadens the scope of the debate on the methodological issues of socio-legal research by reflecting on the challenges facing comparative law. It argues that a contextual understanding of laws should be regarded as the indispensable methodological characteristic of all comparative studies of law that aspire to transcend the understanding of thereof as a body of rules and doctrine. It argues further that although the cultural perspective facilitates the contextualisation of the law, a cultural understanding is neither a precondition for undertaking comparative legal research nor necessarily the correct approach under all circumstances, for certain aspects of law and legal behaviour need not be conceptualised in cultural terms. The chapter concludes by proposing that the combination of top-down and bottom-up approaches could provide a meta-methodological framework within which specific comparative techniques can be employed. Such a framework will enable comparatists and socio-legal researchers to account for how law interacts with and simultaneously manifests itself at the macro, micro and intermediary meso levels of society over time.
Chapter 9, on Iranian legal culture, was also conceived initially as an interest in methodology. When studying non-Western legal systems, we can easily forget that assumptions regarding the autonomy of the legal system, i.e. the need to demarcate the boundaries of the adjudicative and legislative organs and legal rules they generate from other social institutions, are products of Western legal cultures. Expressed differently, it is conceivable that legal sociology is not promoted in certain non-Western countries because it is not historically or culturally in tune with their conceptions of law and society. This chapter serves as an example of how socio-legal theories, which have been developed through the study of Western legal systems, can fail to capture the complexity of late modern societies in non-Western settings. To understand Iranian law and its sense of legality, one must understand how the state and society have developed in Iran—a development which is fundamentally at odds with historical accounts of the relationship between law, society and the state in the West.
Chapter 10 does not engage directly with methodology as such, but it does discuss the UK’s anti-terrorism legislation as a method of pre-empting threats. The role of this chapter is to exemplify the shift from the traditional paradigm of social control, where policymakers attempt to regulate behaviour by upholding desirable norms and values, to late modern forms of governance which try to manage risks and insecurities. This is a shift from a traditional form of regulation, which aims at safeguarding and enhancing continuity and security in human affairs, to a form of governance based on predicting, managing and eliminating the unforeseen dysfunctional outcomes of social developments. The traditional forms of regulation exert normativity on social processes by embedding norms and values in social relations and institutions. Risk management does not, however, require inserting norms and values into social structures and is uninterested in resolving social problems or reforming society. Nevertheless, Chap. 11 demonstrates that risk management strategies also exert normativity. It argues that normativity is not necessarily linked to the application of specific norms, but it may be generated nonetheless by the social context of everyday life. This point brings us back to one of the central methodological questions of legal sociology, which were developed in the first three chapters of the book, namely whether or not legal sociology can capture the normativity of law. These methodological discussions are then summed up in Chap. 12