2   The Law



In our day-to-day lives, the meanings that we attach to law are relatively straightforward. ‘Law’ is often presumed to be a discrete set of rules, developed by the state and the courts, and if we get caught breaking them, we might end up in trouble. Usually, this seems pretty fair. But from a sociological perspective, law is sprawling and messy. State law is supplemented and sometimes supplanted by other rules governing social behaviour; our common-sense assumptions about the existence of justice or fairness are often more hopeful than empirically correct. This chapter presents the social scientific perspective on what we mean when we talk about ‘law’ in Western, liberal tradition. To begin, we briefly describe some of the fundamental structures and ideals of the system. We then backtrack to trace its history and consider the contemporary social context. Following this, key jurisprudential models of law are presented. From a social scientific perspective, these are not particularly useful as descriptions of how law is actually interpreted and applied in societies that are marked by systematic power discrepancies and differences. This is evident when we consider the promise and failure of objectivity and equality, and the usefulness of the public/private dichotomy. We then turn to the role and relevance of rights, a concept that has gained increasing prominence in our day-to-day discourse and as a basis for claims within the formal legal system. It becomes evident that the promise of these concepts remains largely unfulfilled, as jurisprudential ideals compete with social realities.

Legal Systems

In England, the USA and Australia, ‘law’ usually means the decisions of courts and legislation. These form the basis of the common law system. This was developed in Britain and exported to its colonies, including the USA and Australia. Common law is predicated on stability and its development is piecemeal. Precedents are set by earlier case law, and each judgment is rooted in the legal principles of those in the past. When it occurs, change is slow because any disagreement with similar prior decisions must be justified on the basis of distinct and legally relevant differences. In the common law tradition, law has traditionally been seen as practical – a craft rather than a systematic body of theory – and so judges and lawyers, rather than jurists, have played the pre-eminent role in its development (Lloyd, 1973: 223).

While the common law is most strongly associated with case law in both popular imagination and legal discussion, Cotterrell (1984) has noted that contemporary societies are more directly regulated by an extensive system of legislation developed by governments. Legislation does not need the courts’ approval to be valid, although judges continue to clarify and apply the legal principles involved, and in some instances can significantly alter the relevance of an Act, its scope and the ways in which it can be implemented. Nonetheless, as foreshadowed in the previous chapter, it is important to recognize the centrality of the state in the development of law. Cotterrell (1984) suggests that this brings into focus questions of the relationship of law and social transition. The details of legislation can be constructed so as to organize social relations directly; Cotterrell (ibid.: 48) has defined it as ‘a precision instrument of wide-scale social and economic planning’. In contrast, court cases are reactive and their role as a driving force of change is far less certain. The extent to which laws can effect change is an empirical question, one that is difficult to measure and beyond the scope of this book. However, it is important to keep in mind that while our cultural imagination would suggest that the courts are pre-eminent sites of law making, many have argued that their role is more symbolic than substantial.

The contemporary significance of legislation leads us to a brief consideration of the separation of powers. Under this doctrine, judicial, executive and legislative powers must be invested in separate people or bodies. The people who interpret laws (the judiciary) are different from the people who make laws (the legislature), and those who enforce them (the executive). In effect, the system divides up power through a series of checks and balances and in so doing, undermines the possibilities of absolutism and abuse. In reality, the degree to which this occurs varies across countries and historical periods, and some overlap invariably exists in terms of the structure of the government and its practice.

Debate over judicial activism provides some evidence of tensions in the doctrine. Commentators periodically express concern over judges who are perceived to be aggressively making new law, undermining legislative power. As we shall see, such debate is premised on an asocial conceptualization of the process of judging. We might also claim, perhaps a little cynically, that the charge is usually levelled against those decisions that do not further the interests of the parties concerned. The presence of such controversies serves to remind us that the legal and political systems that order power are constructed via cultural and ideological claims as well as processes that exist in empirical reality.

The independence of the judiciary is a key means of bolstering the separation of powers. It is presumed that judges will make the legally correct decisions when they are removed from the influence of the legislature and executive. To ensure this, judges need to be protected from punishment when they hand down politically or socially unpopular decisions. There are a number of ways of ensuring this. First, the appointment of judges should not occur through political patronage or popular election. Obviously, many countries do not act according to this ideal. Selection processes are informed by political agendas and in the USA, for example, the community may elect new members of the bench. This can marginalize considerations of prospective judges’ legal rigour and understanding, in favour of their political ideologies and law and order agendas. Once on the bench, judges cannot be removed when they hand down a contentious judgment. This is usually assured by granting life tenure or providing for a compulsory retiring age. Additionally, a relatively ‘flat’ status and pay hierarchy limits the need to produce politically savvy decisions in pursuit of promotion. Ideally, these protections create the context in which the law can be applied in an objective and equal manner, in accordance with the rule of law.

In the Anglo-American systems, the judges preside over adversarial proceedings. The adversarial system incorporates a conflict or competition between opposing parties in the courtroom, as each argues the validity of their version of the truth. The result is often interpreted in terms of winners and losers, less often as a triumph of justice and truth. More specifically, adversarial systems are characterized by the following:


  • The role of adjudicator. The judge cannot actively seek and test evidence. Their involvement is restricted to decision-making at the end of the contest. These limits are imposed on the presumption that any earlier participation might encourage a commitment to one version of the facts without measured consideration of the opposing side’s story. This also creates the appearance of fairness, increasing society’s trust in the process.
  • Discovery and presentation of evidence by the parties or their representatives. This requirement is linked with the need for the adjudicator’s passivity in the proceedings.
  • Defined procedural rules. These order the parties’ conduct before, during and after the trial, and the evidence they present. This creates a dyadic contest over specific issues within a defined period. The regulations shape counsel’s behaviour and undermine judicial prejudice by defining what evidence can and must be considered (Landsman, 1983: 715–17).

In other jurisdictions, notably those in Europe, an inquisitorial system places different responsibilities on the shoulders of the judges. They have broader powers in terms of questioning the parties to the proceedings, and investigating the case. This is associated with the civil law system in which laws are systematically codified into a more coherent whole than is found in common law. However, there is less judicial discretion in the construction and interpretation of law. Civil law is more directly linked to Roman law and canon (church) law, both of which were listed and organized by jurists. The system more obviously reflects the rationalizing of the law with the state legislating its meaning.

Court systems vary according to country and jurisdictions within countries. The following provides a very brief discussion of how courts are generally ordered. Courts are hierarchical. In their original jurisdiction, higher courts address more ‘serious’ crimes, often those with harsher penalties. They also have an appellate function. This means that parties can appeal to have the decisions reached in the lower courts reviewed, altered or overturned. This only occurs in limited circumstances, and appeals are based on a matter of law, not a question of fact. The division of labour is also affected by different jurisdictions. These may be geographical, in that crimes committed in one area are tried by the court associated with that place. Courts also hear different types of offences. In the USA and Australia, some offences are defined by Federal law, and others are created through state legislation. The courts have general jurisdiction, in that they hear a range of offences. Other courts are responsible for hearing only very specific issues. Juvenile courts are perhaps the most obvious example in the criminal justice system. They hear cases involving perpetrators under a certain age on the basis that young people are impressionable and vulnerable and in need of protection and reformation (Wundersitz, 2000: 103). In more recent times, law and order advocates have argued for a return of particular categories of young offenders into the mainstream court system, to be dealt with as adults. Military tribunals, drug courts, boards and appeals tribunals are other examples of forums that hear particular types of crime.

Liberal Legal Philosophy

The standard texts tell us that the principles and workings of contemporary Western democratic legal systems are informed by liberal political philosophy. Stephen Bottomley and Stephen Parker (1994) list a number of elements. They are as follows:


The roots of these ideals can be traced to the Enlightenment, when the significance of the Church and religious law, precepts and explanations receded. In their place philosophers emphasized the value of human reason as the basis for knowledge. This belief developed alongside a commitment to scientific methods, the mastery of the natural world for the benefit of humankind (or more accurately, mankind), and a belief in the possibility of progress. Rationality and objectivity were accordingly incorporated into jurisprudence, and the emerging concept of the Rule of Law. Whereas the rule of men has the potential to be changeable, arbitrary and discriminatory, the Rule of Law demands that the law can and must be certain, accurate and value-free. It is applied to everyone, including those who formulate it. This approach recognizes that we are all entitled to equality before the law. This in turn necessitates objectivity and impartiality on the part of the judge or legislator. The ideal is symbolized by the figure of Themis, the Greek goddess who balances the scales of justice, blindfolded, outside many of our court buildings. It is a striking image, but as we shall see, it does not always reflect the workings of the legal system.

Law and Norms

The courts may preoccupy popular imagination, liberal philosophy may set the terms of abstract debate, and legislation may indicate the dominance of the state but other social rules also order our behaviours. These may be formally recognized, in the articles of association of a company, the by-laws of a voluntary organization or the rules of a school. They can also take the form of norms. Social norms define some acts and omissions as deviant. This means that our behaviour breaches social expectations but has not necessarily broken any laws in doing so. Conversely, illegal acts are not necessarily deemed to be unacceptable by other members of society. These interpretations may alter according to the circumstances. For example, speeding 15 kilometres over the limit might be fine on an open highway, but is unacceptable near a school; in both instances, the act is formally against the law. The distinction between deviance and illegality is taken for granted by sociologists, but it is nonetheless useful as a reminder of the multiple rules that order our lives.

Eugen Erlich (1936), a law professor writing early last century, developed one of the first sustained sociological critiques of the claimed dominance of state law. He noted lawyers’ preoccupation with state law, its implementation and problems does not necessarily reflect people’s day-to-day practices and expectations. Our interactions with others are not usually undertaken with reference to specific legal principles or laws, which are rarely invoked and usually only relevant in extreme circumstances. Typically, we are guided by ‘living law’, incorporating cultural practices and norms of conduct that have little to do with the legal precepts that will inform a judge’s ruling on any particular case. Living law steers people away from the courts and state institutions. To exemplify his argument Erlich pointed out that if you asked a traveller about the organization of social life in a foreign place, they would not point to how a court case proceeded. They would describe a series of customs and norms that are more visible because they have more relevance in daily life.

Erlich’s deceptively simple point remains pertinent in contemporary, multicultural or diverse societies. At a prosaic level we might note that subcultural norms may have more direct relevance in guiding people’s behaviours than legislation or court decisions. In the USA, the religious law that legitimates polygamy among Mormons conflicts with mainstream legislation. In multicultural countries, religious dictates or cultural customs might conflict with dominant law. Given that the non-dominant cultures are often explicitly defined as oppressively patriarchal by feminists or backward, illiberal and undemocratic by legislators and armchair philosophers, the questions that such cases raise are often addressed by pointing to the deficiencies of the culture in question, rather than the more challenging issue of the extent to which a mono-cultural law can produce or reflect equality in multicultural societies.

The system of rules that preoccupies lawyers and sociologists is one form among many. In this, our present society reflects the multiplicity of laws and jurisdictions that were evident for much of the past millennium. Rationalization and centralization are more of an on-going process – and an imperfect one at that – than an end state at which we have arrived. The reach of state law and power is incomplete. Nonetheless, as we shall see in the later sections, the plurality of norms, rules and legal concepts is ignored in the majority of traditional jurisprudential approaches to law and liberal philosophy.

Past Processes: The Emergence of Law

Our contemporary practices and systems have not simply emerged by chance. Tracing the history of the English legal system (from which many others draw their basic structure and practices and fundamental premises) reveals a process of rationalization and centralization of law and the developing power and authority of the state. We have already touched upon this in the previous chapter where we discussed the work of Parsons, Weber, Giddens and Foucault. This process was fluid and did not occur in a neat progression of events: legal history is a sprawling subject and its details are beyond the scope of this text. The following discussion is a very brief and simple overview of some of the key events and processes that contributed to the development into the current adversarial and (relatively) centralized system.

Originally law grew out of the folk law and mores of early societies. There was a close fit between what was demanded of people and what they considered to be right and legitimate expectations. There is no easy way of identifying an era when law became codified. However, the Ten Commandments, the priestly rules of Deuteronomy and the codes of Babylon all represent attempts to collect a series of precepts and customs that ordered those societies. These processes were not necessarily examples of codification, that is, they did not amount to a systematically collated and exhaustive set of a series of laws that it was deemed necessary for the public to know (Lloyd, 1973: 240). Nonetheless, by the time of the Roman Empire, the civilizations of antiquity had developed relatively stable and complex formal legal systems.

Jumping forward several centuries in Europe, the forms of law altered after the disintegration of the Roman Empire. Many places returned to customary law, supplemented by lingering fragments of Roman law, imposed by lords in their local, feudal courts, beyond the centralized control of a single ruler (Lloyd, 1973; Berman and Reid, 1994). Law did not exist as a series of separate and easily identifiable institutions – it was part of the general social, political and religious order (Berman and Reid, 1994). This type of law was flexible, a necessity in the context of rapidly changing social relations and conditions.

After time localized laws were again evolving into written codes. This began on the watch of feudal lords and then more quickly when the rise of cities and trade demanded a set of legal precepts that could be recognized and applied beyond the immediate geographical or administrative context. The relatively coherent set of civil laws of the late Roman Empire were rediscovered and formally studied and refined, gradually being incorporated into the emerging secular law. At this time, canon or papal law, which was also derived partially from Roman law, was developed into a set of extensive and sophisticated written rules, enforced by an emergent Catholic bureaucracy. The laws themselves addressed issues that today would be considered to lie far beyond the scope of legitimate Church authority: criminal and civil laws and procedures, family law, and inheritance law were covered, as well as liturgical law (Berman and Reid, 1994). The general arc of these developments was from diversity to an increasingly coherent system.

In England the origins of common law are often linked to the Norman conquest. As part of the process of consolidating power, the early kings began to centralize and rationalize the courts (although differentiated jurisdictions continued into the nineteenth century) (Berman and Reid, 1996). This in turn hastened the development of a coherent set of laws. Customs that were peculiar to local areas were superseded by ‘the common custom of the realm’. This was primarily developed through judicial decision-making and supported through a professional lawyer class (see pp. 142–144). In these early centuries judges were not bound by the precedent that is now understood as one of the fundamental features of common law. Past cases were used to illustrate legal principles but were not themselves a source of law (ibid.). The recording of case law, at first through the efforts of law students’ ‘Year Books’ (journals in which they kept an account of hearings attended) and then later in the form of the commentaries by distinguished lawyers and judges, notably the Reports of Sir Edward Coke, provided the means of tracing court custom, or precedent. However, it was not until the nineteenth century that courts were doctrinally bound by particular, earlier decisions, rather than being guided by a customary approach (ibid.).

How can we reflect on this process sociologically? Max Weber has provided the dominant sociological account of changes in the form and application of law in the West. Weber positioned legal changes within the broader social processes and structures of technically advanced societies. Through rationalization the mystical and seemingly ad hoc elements of the law were streamlined, categorized and rendered ‘scientific’ and logical. Weber created a typology of the ideal types of law, based on their formal and substantive rationality. He identified the following:


  • Formal irrationality, in which the law is applied in ways that may not make logical sense.
  • Substantive irrationality, in which each case is determined with reference to its internal characteristics, rather than any external and generalized norms.
  • Formal rationality, in which rules are determined and applied with reference to a system of principles, rather than with a simple recourse to consideration of the facts of the immediate case.
  • Substantive rationality, where decisions are based upon ethical rules or values. These may be applied without reference to the expectations of due process.

According to Weber, these categories are ideal types. This means they are not necessarily so clearly identifiable in empirical reality, and elements of each might exist in some systems of law. However the march of history saw a shift from one form toward another.

Weber contextualizes these categories within a series of transformations in the sources of law and authority:


  • charismatic ‘law prophets’ (such as oracles or priests who presided over trials by ordeal) revealing law;
  • ‘legal notables’ (permanent functionaries);
  • secular and religious powers creating law through legislation;
  • professional legal administrators.

Again, these are ideal types and are not necessarily sequential in empirical reality, although Weber’s discussion does suggest some evolution rather than simple change.

Changes in authority were associated with broader social developments, particularly the emergence of capitalism. Weber does not posit a direct relationship between capitalism and the rationalization of the law, and he skirts questions as to the extent to which economic and legal processes are linked. He focuses more closely on the role of the legal profession and the political context in England, and argues that both these forces were key in the development of the common law and its procedures.

In Weber’s analysis, profession and politics were associated with class. As we have noted, the common law is an amalgamation of rules and procedures from a number of sources – not quite as streamlined as in other European jurisdictions. Weber explained this with reference to the ‘practical’ orientation of the English legal profession, which emphasized skill and technique, and generated a ‘pragmatic jurisprudence’ rather than a scholarly one (Roach Anleu, 2000: 27). The judiciary was drawn from the bar, and they were a conservative force. So too were their decisions, which given the incremental nature of change under the common law, did little to alter existing power arrangements. The necessity of lawyers and their high fees prevented those from the lower classes accessing the legal system. In these ways, the law supported the interests of capital. Although some rationalization did occur, the relevant actors and principles created barriers to the greater rationalization of law evident on the continent, which might have worked against the dominance of the legal system and the interests they served.

While Weber’s analysis is one of the classics of the sociology of law, it is of course not above criticism from other sociologists. It is argued that Weber failed to fully describe the relationship between the rationalization of law and economic structures. He argues that the two are complementary but neither structures the other, which falls short of a full causal explanation. Further, he states that his long discussion of law and capitalism in England is not generalizable beyond the particular circumstances of that time and place, which marginalizes the analytical relevance of the work. Others have noted that truly formal rationality is impossible. As Roach Anleu (ibid.: 30) points out, it is difficult to imagine a law or legal system that is not to some extent informed by religious, social or political values. Finally, Weber does not approach the different types of law in an objective manner. Rather, he is explicit in his characterization of rational law as more advanced than irrational law.

Current Questions: Law, Postmodernity and Globalization

Weber’s focus was on changes that have already occurred. However, new social processes are altering the structure and significance of law. We have already discussed postmodern critiques of law but it is useful to remember that ‘the postmodern’ refers not only to an intellectual position; postmodernity is a historical epoch. In this age, life is fragmented and pluralistic (Schanck, 1992). It is marked by the absence of ‘grand narratives’ (Lyotard, 1984) that promised the reliability of knowledge and the certainty of progress (Lipkin, 1994). In the absence of previous certainties and in light of rapidly unfolding social, economic, structural and cultural changes we come to distrust the institutions whose authority was once taken for granted (Schanck, 1992). For example, where it was presumed that law limited the abuse of power and reflected the truth of the matter, people may now be rather more suspicious of its functions (Lindgren-Alves, 2000: 488). However, empirical evidence to support these presumptions is difficult to generate.

Globalization is part of the postmodern landscape. Countries have always been involved in a web of relations but in contemporary society the nature and implications of these links have altered. In a classic definition, Robertson (1992: 217) describes globalization as ‘the increasing acceleration in both concrete global interdependence and consciousness of the global whole of the twentieth [and now twenty-first] century’. Things that happen on the other side of the world have a far more direct impact on people’s day-to-day lives. Banking, communications, trade, criminal activities, cultural practices and artefacts, and institutions of governance cross state boundaries (Roach Anleu, 2000: 216).

The implications of globalization differ from country to country. States and other institutions do not hold equal economic, military and cultural power and influence. Thus, some are more easily able to impose their agendas upon international law and affairs. Conversely, others are susceptible to the demands of organizations like the World Bank or the International Monetary Fund. For example, these organizations are able to tie financial aid to state reform, effecting political and social change and reinforcing Western liberal ideals upon ‘recalcitrant’ states (Roach Anleu, 2000: 220; Alvarez, 2002). These processes have impacted upon international law.

The end of World War II marked the emergence of a new, coherent (though imperfectly recognized and enforced) international order. This initially occurred under the authority of the United Nations; more recently, we have seen the emergence of the European Community. These bodies have been associated with a number of legal developments and by some accounts, the marginalization of the nation–state. For example, we see an increased number and broader scope of multilateral treaties. These are created with the involvement of not only countries, but international law scholars, and civil servants, NGOs, interest groups, and expert international commissions (Alvarez, 2002). Changes associated with globalization have called sovereignty into question. States are increasingly called to account for their actions to other members of the international order. International law is also emphasizing the rights and duties of individuals, in contrast to the previous focus that rested upon relationships between states. This is most obviously evident in the systematic enumeration of human rights (see pp. 73–74) and the prosecution of those who participate in, for example, crimes against humanity or genocide. These can combine to produce a tension between the principle of non-intervention in domestic affairs versus the need to protect the human rights of citizens (Roach Anleu, 2000: 219).

Globalization is also tied to colonialism and the uneasy relationship between law and custom within nations. In former colonial societies, liberal legal philosophies were imposed at the expense of the pre-existing, complex systems of indigenous law. For example, indigenous Australians developed a system of punishment that is referenced to kinship obligations, and can include corporal punishment. These practices continue among some traditionally oriented groups but under the Anglo-Australian criminal law, may themselves be crimes. Further difficulties arise when we acknowledge that many of the pillars of liberal legal philosophy are not recognized among Aboriginal societies. With the exception of a few instances of ad hoc incorporation of traditional punishment as a consideration in sentencing, or as an alternative to jail, Australian courts have not systematically acknowledged indigenous law or its principles and they rarely apply it beyond instances involving traditionally oriented Aborigines. When it is recognized, the structure of law and power in Australia remains unchanged – Aboriginal law will be incorporated only in so far as it does not breach the dominant system and non-indigenous interests, and to the extent that it can be rewritten to conform to pre-existing legal concepts.

Weber’s approach to the rationalization of law, questions of postmodernity and globalization all indicate the need to locate law in its social, historical and cultural context. However, as the following overview of jurisprudential texts shows, the role of the social is not universally recognized. A jurisprudential approach to law is concerned with its nature and the relations between law and justice. These are often abstract philosophical questions based upon what the law should be. Empirical questions as to what the law is and how it works in our societies are marginalized. Despite their sometimes loose relationship with reality, these jurisprudential principles frame legal decisions, debate and practice. For this reason, we discuss them in the following pages.

Jurisprudential Approaches to the Law

Legal formalism/positivism

Legal formalism or legal positivism is associated with the Enlightenment and the rise of Western ‘science’, which produced a desire to develop a rational and objective means of measuring and valuing laws (Cotterrell, 1989: 123). Within this approach, law is a self-contained system of rules and concepts, the validity of which is determined with reference to the legitimacy and coherency of the system itself, rather than the justness or morality of any particular law or judicial decision. Social justice, reform or policy considerations are not relevant. Borrowing from John Austin, one of the key theorists associated with this school, we might say that the approach seeks to describe how the law is, not how it ought to be.

Decisions in individual cases and the validity of particular laws are judged through recourse to rules that create an internally logical system. For example, Hans Kelsen attempts to set out a ‘pure theory of law’, a science of law. He conceives of society’s many laws as constituting a system, with each rule deriving its legitimacy from those higher order laws governing it. All of these are ultimately measured against the Grundnorm, the original norm. Kelsen’s approach provides an example of the reasoning process through which the legitimacy of any law lies in its creation, not in its substance or the implications of its application. Another positivist, Ronald Dworkin, defines the law as a ‘seamless web’. Even in instances where there is no directly applicable legal principle, there remains a right way of considering the issues. Ultimately, then, decisions cannot originate in individual creativity or discretion. In some slight contrast, H. L. A. Hart (1961) identifies primary rules, which are rules of obligation, and secondary rules, those concerned with questions of procedure, recognition and adjudication. Unlike Dworkin, he recognizes that in some rare circumstances there are no clear, settled rules, which creates a ‘penumbra of uncertainty’, and only in these cases will judges have some discretion (Hart, 1980: 55). All of the above theorists share in common the belief that a system of law is not judged with reference to its extra-legal implications.

This is not to say that morality is irrelevant. Rather, legal positivism requires us to approach the nature of law as an issue separate from that of morality. Austin (1982: 184, in Cotterrell, 1989) states that, ‘The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.’ For Bentham and Austin, early scholars associated with legal formalism, incorporating ethical judgements into the law is dangerous because it undermines the legitimate authority of the state. It does this by providing a basis upon which people can second guess what the state legislated for. Further, its basis is morality, a slippery and relative notion (Cotterrell, 1989: 119).