Introduction: the meanings of law
1
Law is a social phenomenon and has been of interest to sociology since the early days of the discipline. However, much discussion of law has been and remains monopolized by legal practitioners and legal theorists who primarily focus on legal doctrine; they are concerned to analyse patterns, directions and inconsistencies in judicial thinking and decision making. They attend to social factors in discussing the kinds of values reflected in judicial statements and the ways in which judges resolve practical, everyday dilemmas in deciding cases. The enduring emphasis is on analysing appellate cases. Indeed, the sociology of law is more often taught in law schools by law academics (albeit with a strong interest in the social sciences and/or social science training) than in sociology departments. For many sociologists, law is derivative of broader (or more authentic) sociological concerns, for example social control and deviance, or is treated within other substantive areas such as labour relations, the welfare state and social policy, crime, bureaucratic organizations or contemporary family relations. Many sociological definitions of law stress its normative character and are concerned with the responses to behaviour that violates laws. Sociological discussions of law are often limited to discussions of the criminal law, its operation and administration.
Law and sociology are often presented as two distinct disciplines and bodies of knowledge. For example, Cotterrell – a socio-legal theorist – seeks to understand ‘the nature and effects of confrontations between such different fields of knowledge and practice as those of law and sociology … [that have] quite different historical origins or patterns of development, social and institutional contexts of existence, and social and political consequences’ (Cotterrell, 1986: 9–10). Another commentator disagrees that the common law can be considered a social science because of the two disciplines’ different epistemological approaches: the former relies on adjudication to discern ‘facts’ and on precedent to resolve present disputes, while the latter relies on ‘positivity’, the constitution of knowledge via empirical research and the deployment of statistical analyses (Murphy, 1991: 185–200).
Certainly, the development of law and sociology in western societies occurs within different institutions and bodies of knowledge (as professionally defined). However, they have very similar subject matters: both are concerned with social relationships, values, social regulation, obligations and expectations arising from particular social positions and roles, and the linkages between individuals and society. Almost any aspect of social life can be subject to legal regulation and judicial statements do have similarities with social theory (and often read like social theory). Nonetheless, the substance of law in western democratic societies primarily deals with the regulation of property relationships and the enunciation and protection of property rights. Sociology is more interested in a wider array of social relationships and investigates inequality and power at both structural and interpersonal levels. While jurists are concerned primarily with the activities of courts, especially the process of legal reasoning, sociologists are more interested in the interconnections between law and changing social institutions, political structures and economic conditions and the relationships between legal institutions and other forms of dispute resolution, social control or regulation. At a more individual or micro level, social researchers investigate how various actors – including lawyers, judges, social activists and people in everyday life – experience, use, interpret, negotiate and confront law, legal institutions and legal discourse (Silbey, 1991: 826–9; Travers, 1993).
Social change
Social change is a term sociologists use to describe usually large scale transformations, such as industrialization and the shift from rural agrarian, feudal or traditional societies to modern, industrial societies, the emergence of capitalism, democratization, and most recently globalization. These changes are associated primarily with economic conditions and market forces and have consequences for political, social and cultural activities. Indeed, the formative period of sociology as a distinct discipline was characterized by large-scale economic, political and social transformation. Key nineteenth century social theorists focused on social change at a macro level such as capitalism and its contradictions (Karl Marx), rationalization (Max Weber), and the increasing division of labour (Emile Durkheim) (Arjomand, 2004: 321). More specific theories of social change address the implications of overall, abstract changes for human social relations, the lives and experiences of individuals and their everyday social environments, school, work/employment, families, social control and so on (Hallinan, 1997). Especially during the twentieth century, governments often relied on the law as a route, or resource, to implement desired social change. In part this reflected aspirations for the welfare state and its social reform agenda, including the statutory implementation and bureaucratic administration of social programmes.
A distinction is often drawn between revolutionary social change and evolutionary social change. Revolutionary social change tends to derive from inequalities of various kinds and resulting conflicts which spawn political action, both within and beyond the recognized political institutions. Evolutionary change occurs ‘naturally’ as populations grow, and societies become more complex (Abercrombie et al., 2006: 351–2). A third kind of social change can be imposed from external sources, as in the case of colonization.
In thinking about societies and social change, an analytical distinction between structure and action is often made. Social structures are patterns of actions and behaviour that exist over and beyond the activities and purposes of individuals but in turn depend on individual action for their reproduction and continuation (Sewell, 1992: 3). The idea of structure suggests a fixed, observable, enduring entity, such as a whole society or part thereof, for example the legal system, or the system of inequality. Social structure constrains human activity limiting the scope for human agency, individual choice, responsibility, motivation or intention. This image of structure is most obvious in structural-functionalist accounts that conceptualise society or social organization as constituted by different parts undergirded by the logics of integration and stability. Any change seems to be the natural process of evolution and progress, often toward modern societies characterized by the replacement of tradition and custom by science and rationality (Etzioni, 1966). Either way, social change can bring about instability, conflict and dislocation (see Parsons, 1951).
Weber (1978) observed the relationship between structure and action as paradoxical. For Weber ‘paradox is the defining characteristic of modern life; that is the inevitable consequence of all social action in modernity’ (Symonds and Pudsey, 2008: 229, emphasis in original). Human action establishes and reproduces social structures which in turn confine, or even undermine, that action despite the intentions or motivations of actors. Organizational contexts and everyday routines can militate against the realisation of original goals or the purposes of the social structure. In an important early essay Robert Merton articulates ‘the problem of the unanticipated consequences of purposive action’ (1936: 894). Purposive action is conduct which involves motives and some degree of choice between various alternatives or competing options. For many reasons individuals cannot or do not foresee all the possible consequences – positive, neutral or negative – of their conduct and choices, and thus these are unanticipated.
One significant example of where unanticipated consequences often occur is bureaucratic organization. Putting aside cultural and social variation in the bureaucratic form, Weber’s ideal type of bureaucracy is the quintessential example of legalrational authority: it is bounded by rules, authority is hierarchical and it is oriented to the achievement of one or more identifiable goals, for example, welfare provision, education, justice, or profit. These overarching goals can become displaced from the everyday conduct and choices of employees, in turn limiting the ways that overall goals can be achieved, or redefining or undermining these (Merton, 1968: 249–60). Vaughan (1999) describes the ‘dark side’ of bureaucratic organizations which present possibilities for mistakes, misconduct and disaster with potentially adverse societal consequences. Her (1998) research shows that the National Aeronautic and Space Agency’s (NASA) decision to launch the Challenger space shuttle followed a gradual increment of seemingly minor problems without major damage, which engineers defined as separate, local and within acceptable risk but which ultimately resulted in its explosion after takeoff in 1986.
The example of bureaucracy is significant for understandings of law and social change because the organizations established to implement legal change usually assume some or all of the elements of the bureaucratic form. A new statute may not be translated into the expected or desired social change because of the structures of implementation, especially if these involve a bureaucratic organization, which entails contextual or local practices, values, and viewpoints. An excellent example of this is recent research on hate crimes (discussed in Chapter 8 below). This phenomenon might be characterized as the gap between law on the books and law in action (Jenness and Grattet, 2005).
The notion of ‘structuration’ conveys a dynamic relationship between structure and agency (Giddens, 1976; Sewell, 1992). Social structures, constituted by rules and resources, constrain human agency but also provide opportunities or capacities for creativity, reinterpretation or innovation, which constitute structural change. Human agents are knowledgeable and competent, can mobilize resources (which can vary in accessibility), and are not viewed as over-determined by their location in the social structure. ‘To be an agent means to be capable of exerting some degree of control over the social relations in which one is enmeshed, which in turn implies the ability to transform those social relations to some degree’ (Sewell, 1992: 20).
Understanding law and social change will be complex. Broadly defined, as a set of shared or at least accepted rules governing social interaction, law is a social institution but the way in which law is organized or manifest in different societies varies. Considerable research in the sociology of law attends to legal institutions: the legal profession, police, courts, legislation, and judicial decisions. Many socio-legal studies focus on issues, such as guilty pleas, criminal courts, lawyering or legal services, employment, divorce and family law, within the bounds of nation states and then make comparisons across nation states. Until recently, the legal system was viewed as the primary repository of law and attention was paid to the demarcations between criminal and civil law, the operation of various dimensions of law on citizens, the organization of national courts, and the division of labour between legal personnel: police, the legal profession, the judiciary. Conceptually, legal processes have now been uncoupled from the legal institutions or organizations in which they are typically nested: police do not monopolize policing; governance is not synonymous with governments; law operates within and beyond the legal system; and legal norms and understandings pervade everyday life (Ewick and Silbey, 1998).
Social change and law
Nineteenth century social theorists described a central role for law in understandings of social change. Henry Maine (1888) described social change in terms of the move from status (inherited and prescribed) to contract (individual and voluntary, at least in theory and only available to some members of the society). For Durkheim the prevailing type of law is an indication of the type of society and changes in law signal the nature and type of social change. Weber’s typology of law and legal thought implies evolutionary development and the extension of western rationality and Marx saw law as inevitability intertwined with capitalist economic relations and therefore an impediment to class struggle and revolutionary social change (see Chapter 2).
In the twentieth century, much sociology examined social change within sovereign nation states with clear territorial boundaries and law was viewed as an instrument or vehicle for the implementation of social and economic policy (Dror, 1968). The dominant conception of society was of a bounded system with clearly identifiable and separate subsystems: the legal system, the economic system, the cultural system, the industrial system, the nation state and the family (Beck and Lau, 2005: 527; Giddens, 1990: 64). The systematic study of social change from the mid-twentieth century onwards, particularly in the United States, was aided by the public availability of nationally representative longitudinal data sets collected by federal, state and private agencies (Hallinan, 1997: 3).
At least in the context of the US, and other states with independent judiciaries, a constitutional tradition and the rule of law, the state can be seen as ‘fundamentally legal’ (Skrentny, 2006: 214). Understanding the nation state requires an engagement with law and legal concepts, such as legality, which can enable and constrain state actions (2006: 213–4). In a discussion of the American state Skrentny shows that the relationship between law and the state varies over time and by issue. Sometimes there is no role at all for law and the courts. At other times, there can be a negative role of reducing progressive social options by limiting welfare benefits and safeguarding business/employer dominance through enforcing property rights in a way that spurs on economic development and large enterprises. Sometimes there is a positive role for law with the expansion of welfare rights in the 1960s and 1970s (2006: 218).