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INTRODUCTION
One of the most characteristic features of the twentieth-century jurisprudence was the development of sociological approaches to law. a The
social sciences had an influence almost comparable to that of religions in
earlier periods. Legal thought has tended to reflect the trends to be found
in sociology. So long as functionalist, consensus-oriented approaches
dominated the scene in sociology, sociological jurisprudence mirrored
this prevailing paradigm. Roscoe Pound, the most influential of sociological jurists, was the leading representative of this approach. When
conflict theories tended to dominate the sociological stage these we reflected in legal thinking too.
This is one of the reasons why it is difficult to identify a central proposition of sociological jurisprudence. Nevertheless, one can pinpoint a
number of ideas in the thinking of those who adopt a sociological approach to the legal order. There is a belief in the non-uniqueness oflaw: a
vision of law as but one method of social control. l There is a also a
rejection of a "jurisprudence of concepts", the view of law as a closed
logical order. The shortcomings of formal, logical analysis were noticed
as new problems emerge for which existing law did not provide solutions? Further, sociological jurists tend to be sceptical of the rules presented in the textbooks and concerned to see what really happens, "the
law in action". 3 Sociological jurists also tend to espouse relativism. They
reject the belief of naturalism that an ultimate theory of values can be
found: 4 they see reality as socially constructed 5 with no natural guide to
the solution of many conflicts. Sociological jurists believe also in the
., See R. Cotterrell (1998) 25 J. L. S. 171.
1 See Ehrlich, post. 670. See also Packer, The Limits oj" the Criminal Sanction (1968); Black,
The Behavior of Lmv (1976), Chap. 6.
On the Continent it was Geny who drew attention to this in the context of the codes.
So do the American Realists, pOSl, 832 and Critical Legal Theorists, pOSl, Chap. 13.
See Pound, Interpretations oj" Legal Hislory (1923), Chap. 7; (I Stammler's view of
"natural law with a variable content".
C{ Berger and Luckmann, The Social Construction of Realitv (1966). See the discussion
of this in relation to Critical
post, 1051. See
l. !{ackling. The Social
What?
660
The first serious attempt to apply the scientific method to social phenomena was made by Auguste Comte (1798-1857), who invented the
term "sociology".12 This was part of the powerful emphasis in the
See Quinney. The Social Reality of Crime (1970) and W. Chambliss and R. Seidman.
Law. Order and Power (2nd ed., 1982).
See his Treatise on Human Nature (1740). On Hume cf ante, 120-121.
, Published in 1744. It is available in an English translation (T.G. Bergin and M.H. Frisch,
eds., 1948). See also ante, 120. On Vico, see R. Brown, The Nature of Social Laws (1984),
Chap. 6.
9 See The Spirit of the Laws (1748). See ante, 120.
10 Stone says of this that it "not
led the jurists towards the promised land; it also
reduced the main forts of its existing occupants. It played the role of Moses, and, in part
at least, of Joshua as well. But it was not to be under its own banner [i.e. the Volksgeist.
post.] that the promised land was to be conquered and occupied (Social Dimensions of
Law, p. 36).
I I Post, Chap. 12.
12 It is no longer thought, as it once was, that Comte was the founder of sociology, any
more than Bentham by coining the words "international law" and "codification"
founded respectively that discipline or that method. See Runciman, Sociology in its Place
(1970), p. I. M. Pickering, Auguste
situates his life and thought.
6
661
The dissemination of the Darwinian evolutionary theory of natural selection gave a further impetus to this development, and enabled it to be
linked with the ideology of laissez faire in economic and social affairs.
Thus, for Herbert Spencer (1820-1903), evolution was the key to the
understanding of human progress and legal and social development could
best be left to evolve by a natural selection like biology.14 Such a conclusion was regarded as scientific and not to be confused with the unscientific historicism derived from Herder or Hegel. 15
Laissez faire was both an economic theory and a philosophy of action.
Spencer's contribution was to apply the organic evolutionary idea in
relation to society. He believed that by the great process of biological
evolution, social evolution would arise as part of an automatic and independent process. Contrary to Bentham, Spencer desired to impress
upon society the very small part that conscious direction could hope to
13
14
15
662
develop a systematic sociology of law. 19 More than that, he was the first
to see the sociology of law as central to sociological theory. His training
was as a lawyer. His earliest writings resemble those of the German
Historical School. 20 He later reacted against this. His primary concern
was to understand the development and characteristics of Western society, the most distinctive feature of which in its developed form was
capitalism. This led him in two directions: first, into historical and
comparative studies of the world's major civilisations; secondly, into
studies of the origins of capitalist development and "rationalism". The
existence of rational legal order is a critical feature of capitalist society.
Weber emphasised the peculiarly "rational" quality of legal institutions in modern Western societies. He saw law 2l as passing through
stages ranging from charismatic legal revelation through what he called
"law prophets" to a "systematic elaboration of law and professionalised
administration of justice by persons who have received their legal training
in a learned and formally logical manner".2 2 He did not suggest any
evolutionary sequence: his stages were "ideal types" and "elements from
each ... can be found in ancient as well as in modern legal practice, as
Weber showed by a profusion of illustrations" .23
This applies also to Weber's ideas concerning types of irrationality and
rationality that characterise legal systems. Legal irrationality, that is a
failure to be guided by general rules, may be formal, as where decisions
are determined by means beyond the control of reasoning (e.g. trial by
ordeal or oracle), or substantive, where the decision-maker is guided only
by reaction to the individual case (Weber thought this was exemplified by
the cadi in the Moslem market-place, and some believe that "jury equity"
can be similarly described). A legal system exhibited substantive rationality when it was guided by principles albeit of an ideological system
other than that of the law itself, for example religion or justice. Such legal
systems lacked the restraints of procedural formality and the sort of
consistency that we associate with a system of judicial precedent. It attained formal, logical rationality when its rules were expressed by the use
of abstract concepts created by legal thought itself and conceived of as
constituting a complete system. Such legal systems, Weber claimed, were
unique to modern Western civilisation. Formal rationality must be con-
JHERING (1818-r892)
16
17
18
Spencer is, however, coming back into fashion. Donald Macrae (see his introduction to
The Man versus The Siale (1969) attributes this to a backlash against the increasing
power of the bureaucracy and "over-criminalisation" of the citizen by constant addition
of regulative offences. And ct: the ideas of Nozick, ante, 534, 590.
.
Bentham, despite his enthusiasm for law reform, remained a supporter of laissez fmre,
being wedded to the idea that once the legal system was overhauled and renovated, there
would be little need for further legislative interference. Even so in his final blueprint(the
Constitutional Code (1830)) there is provision forministers of health, education, social
security and transport (see R. Harrison, Bentham (1983), pp.258-260).
See M. Friedland, Sanctions and Rewards in<the Legal System (1989).
19
20
21
22
663
On Weber see R. Bendix. Max Weber: An Intellectual Portrait (1960). On his sociology of
law, A. Hunt, The Sociological kfovement in Law (1978), Chap. 5 is useful, as is A.
Kronman, .Max Weber (1983), which situates his sociology of law within his philosophy.
See also R. Cot terrell, Law's Community (1995), Chap. 7 and W. T. Murphy, The Oldest
Social Science? (1997), Chap. 2.
Cf post, 905 et seq.
Weber's definition of law is Austinian. See S. Stoljar in Studies in the Sociology of Lmv
(G. Sawer, ed.) (1961), p. 33.
Kronman, Max Weber (1983), pp. 28-31.
M. Weber, La,,'
Rheinstein, ed.) (1954).
664
Epitomised for Weber in the conceptual jurisprudence of the German Pandectists and the
continental codes. As a sociologist Weber believed that his role was not to judge legal
systems or their rules but only to understand them. Rheinstein, op. cit, p. Ixiv says that
Weber held that the sociologist must "concern himself with every kind of organisatIOnally coercm; order, regardless of whether or not he is pleased by its contents or by the
ends for which it is used by those who have the power to manipulate it". This is a
narrower view than is to be found in most contemporary sociology of law. Doubt has
been cast by Kronman on the oft-supposed view that Weber favoured rationalization in
law. Weber referred to "rationalization" as a "fate", an unavoidable development. This
negative face of rationalized law is seen by Trubek as part of Weber's "tragic modernism" ([1980] 20 Law and Soc. Rev. 573, 590 I). Formal law, it is argued, favours those
with wealth and power and, further, as the law becomes more technical and specialized, it
0- becomes less accessible to ordinary people.
) The Religion of China (1951), p. 149.
26 Cf Marx's view. Weber was one of the earliest critics of Marx, and note Trubek's sharp
comment that Weber avoided "the oversimplifications found in both the liberal and the
Marxist accounts of law in his time, and, to some extent, in ours" ((1985) 37 Stanford
Law Rev. 919, 922).
27 Economr and Societr (G. Roth and C. Wirrich. eds.). p. 975.
'"'18
"
" ...
- ., As to which see, post, 665 666.
29 Cf ante, 89.
30 See The Religion of China, pp. 147 -ISO.
31 cr post, 959, 992.
32 On relative autonomy see R. MiIiband,Marxism andPolilics (1977).
24
665
39
666
C:
i:
EMILE DURKHEIM
(1858-1917)
40
41
42
43
darity" .48 According to Durkheim there are two basic types of societal
cohesion (what he called solidarity): mechanical solidarity to be found in
homogeneous societies and organic solidarity which was found in more
heterogenous and differentiated modern societies which rest on functional inter-dependence produced by the division of labour. Linked to
these forms of integration are two types of law viz., repressive and restitutive. In a society based on mechanical solidarity law is essentially
penal. With increased differentiation societal reaction to crime becomes a
less significant feature of the legal system, and restitutive sanction becomes the main way of resolving disputes.
Durkheim's typology is rooted in a priori thinking and empirical data
have cast doubt on it. 49 His assertion that small-scale societies lack 5oa
division of labour has been shown by anthropologists since Malinowski
to be over-simple. Schwartz and Miller found that "police are found only
in association with a substantial degree of division of labour" while
restitutive sanctions, damages and mediation exist in many societies
which "lack even rudimentary specialisation" .51 According to Hunt "the
rise of repressive law can be associated with the emergence of social
stratification and state forms after earlier pre-state stages of development
which exhibit predominantly non-repressive forms of social regulation" .52 The majority of societies from which Durkheim took his data
were not primitive at all but rather the ancient societies of Greece, Rome
and Egypt. Durkheim, however. neglects, as sociological jurists also do,
53
ibid.
See
. Pluralism
. and Public Policv (1983)
S N.
D Glazer
N Ik and KYO'
. . oun", Ethmc
ee . e en, The LlI1uts oj the Leg I P
(198
.
.
a .
. 3). But a study by Savelsberg of
economic crime in West Ger' a
and Soc. Rev. 525).
m ny SUppOltS Webers central predictions (1987) 21 Law
44
Cf
Z. Bankowski
andand
D. M
Nelken
.
'
.
Welfare
(S. Asquith
Adl' "0'
as .
a SOCIal
Problem " In
Discretion and
article showing that W b ; . e\ e ,.) ( 9(51), pp. 247-269. And see S. Feldman'S
questions' (199 ) 16 L' e.erdSSInslg ts can be applied to modern constitutional law
0 D
' . -7
aw an
oClal InqUIry 205.
Emile Durkheim (1973). This pays little attention to
(1961)
d"
'\
. ee hap. 13. cf Alpert, Emile Durkheim and His SocioloO'v
Pearce T:"
oes. I n s:e s. Lukes and A Scull, Durkheim and tile Law (1983) and
Ch
'9 le RadICal Dwkheul1 (1989). See also R. Cotterrell, Law's Communitv (1995).
F.
.
46
47
667
_ Process (1987).
See post, 911.
(1964) 70 Am. J. Sociol. 159. Though Baxi (1974) 8 Law and Soc. Rev. 645 is critical of
Schwartz and Miller's methodology. But Spitzer (1975) 9 Law and Soc. Rev. 613 and
Wimberley (1973) 79 Am. J. Sociol. 78 come to similar conclusions to Schwartz and
)0
51
Miller.
The Sociological Movement in Law (1978), p. 141.
,} He regards it as important but refuses to analyse why it is important and what interests it
See Taylor, Walton and Young, The New Criminology (1973), Cha 3
A. Scull, Chap. 4.
.
P . And in S. Lukes
Two Laws of Penal EvolutIOn" (I 973) 2 Econ. & Society 278.
esan
ProfesslOnal EthiCS and Czl'ic Jlforals (1957). And inS. L u k
d A.>Scull,Chap.8.
54
55
56
serves.
Man, vol. l,pp. /68-169.
(1975) European J. Sociology XVI 29.
ibid.
668
)8
Byzantme
successor. They show between the tenth and nineteenth
centuries State law gradually displaced community law throughout
Europe, very early in England)9 and much later in the Continent with the
reception of Roman law. In Anglo-Saxon England, however, "local
customary legal systems emphasised the settling of disputes through reconciliation rather than through punishment. 6o This pattern was re;ersed
as the common law of the state replaced the legal systems of local feudal
authorities and offences previously treated as civil wrongs were redefined
as assaults on the King's peace. At the same time the ambit of the
criminal sanction expanded to take in many prohibitions with no basis in
customary law. Further, the criminal court became more punitive and
"the State's control over the everyday life of its subjects, through its
machinery of laws, grew ever closer".61 Lenman and Parker cast doubt
also on Durkheim's thesis of the decline of repressive sanctions with the
growth of the nineteenth century. "Instead of readjusting social relationships ... the penitentiary sought to reconstruct
Furthermore, the norms for reconstruction were laid down by the state".62
They note that early modern ecclesiastical tribunals had applied
"Christian norms" in a similar way but they looked for a "public reconciliation between parties or individual wrong-doers and the community". The modern state, by contrast, "is at once impersonal and, in
theory, infinitely demanding".63
Lukes and Scull believe that Durkheim "systematically"64 underestimated the repressive aspects of modern law, in particular (i) the punitive dimension of civil law (recent trade union leo-islation and
65
litigation is testimony to this); (ii) the nature of modern'"criminal law
itself, its expansion into new areas with the growth of the regulatory state
57
58
59
62
63
64
65
In V.A.C. Gatrell, B. Lenman and G. Parker, Crime and the Law: The Social History of
Crime in Western Europe Since 1500 (1980), p. 11.
ibid, p. 44.
From the time of Henry II.
Per E DuBo.w, quoted in Lukes and Cohen, op. cit., p. 12.
Op. cit., n. 6:>, p. 15.
ibid, p. 44. See also M. Foucault, Discipline and Punish (1975) and M. Ignatieff, A Just
Measure of Pain (1978) and in S. Cohen and A. Scull (eds.), Social Control and the State
(1983).
ibid.
Op. cit., p. 13.
See R. Rideout (1997) 50 C.L.P. 361.
669
and the "welfare sanction,,66: they point out that sometimes such incursions are strengthened by the use of vicarious and thus collective
responsibility; (iii) in non-liberal states "such expansion
often embraced individual private life and the economic sphere,,61 (they give us
examples the South African pass laws and Communist states' penalties
for economic crimes; (iv) "the nature and depth of 'repression' in both
civil and criminal law is greater and more complex than may appear on
the surface, involving stigmatization and the exclusion of alien elements
in a process that can itself be understood in a quasi-Durkheimian manner
as a way of reaffirming the collective identity of the group".68
To understand the greatest limitations in Durkheim's sociology of law
it is necessary to look at his concept of law itself. For Durkheim, law was
barely distinguishable from morality. He tended to see the law as derived
from and expressive of a society's morality. He wrote of social solidarity
as "a wholly moral phenomenon"69 70 and saw law as an "external index
which svmbolised it". There is a close relationship between law and
moralit;, but there are also conflicts between legal and moral rules and,
indeed. between different moral principles. Durkheim tended to underestimate conflict. He did not concentrate on moral conflicts or the ways
law and morality could come into conflict with each other. Durkheim
presents a consensus view of the relationship between law and social
order which overestimates groupness and fails to explain why disputeresolving institutions come into existence. 71
Secondly, Durkheim focused on that part of the law which limits individual's activities, on criminal law and punishment, sanctions and obligations. This is not unreminiscent of the imperative school of
jurisprudence. As with Austin,72 for example, one problem of this is that
it precluded any systematic inquiry into the facilitative aspects of law, the
law concerned with powers, constituting relationships, defining practices.
He recognised the existence of these aspects oflaw. Indeed, his discussion
of
is both pertinent and prescient of twentieth-century developments. He shows how individual action is increasingly permeated by
"contractual solidarity": the importance of contract increases with a division of labour. His argument is that contracts become more and more
just until they move into the realm of "social equity" .74 He thought that
"just contract" required that private ownership should not be misused: he
was opposed to fixed rights of inheritance because, as he saw it, they
66
67
68
69
71
',2
73
See D. Garland (1981) 8 Brit. J. of Law and Soc. 29 and Punishment and Modern Society
(1990).
Op. cit., p. 14.
Op. cit., n. 14. See E. Goffman, Stigma (1964) and in general the writings of the labelling
school. (For example, H. Becker, Outsiders (1961).)
70 Post 713
See
of consensus, post, 47-49.
Ante, 219.
See S. Lukes
Law (1983), Chap. 8.
670
Ehrlich was an eminent jurist who was concerned to expound the social
basis of law. For him law is derived from social facts and depends not on
state authority but on social compulsion. Law differs little from other
forms of social compulsion, and the state is merely one among many
associations, though it possesses certain characteristic means of compulsion. The real source of law is not statutes or reported cases but the
activities of society itself. There is a "living law" underlying the formal
rules of the legal system and it is the task of judge and jurist to integrate
these two types of law. Commercial law, for instance, as embodied in
statutes and cases, involves a constant attempt to try to keep up with
commercial usage, for the "centre of legal gravity lies ... in society itself,.80 Hence great emphasis is placed on fact-studies, as against anaIn such fields as landlord and tenant, employment and consumer protection. On "just
contracts" note the increasing tendency to refer to relative bargaining strength in legislatwn (e.g. Supply of Goods (Implied Terms) Act 1973; Unfair Contract Terms Act
1977). See also G. Gilmore, The Death of Contract (1974) and M. Trebilcock, The Limits
of Freedom of Contract (1993).
76 Cf Weber, ante, 663.
77 Per D. Garland, "Durkheim's Theory of Punishment: A Critique" in The Power To
78 Punish (D. Garland and P. Young, eds.) (1983).
See also the comment of Lukes and Scull, op. cit., n. 82, p. 8: "Durkheim and the
Durkheimians closed off most of the questions that have been central to the modern
sociology of law, criminologv, and the study of deviance"
79 See also the very useful
by W.P. Vogt, "Obligation
Right: The Durkheimians
so and the Sociology of Law" in The Sociological Domain (P. Besnard ed.) (1983), p. 177.
. E. Ehrhch, Fundamental Principles of Sociology of Law (1936), Foreword. Thus, Macaulay has demonstrated that in business conducted between manufacturers in Wisconsin
relatively little attention is paid to detailed planning or legal sanctions and that the
functions of contract are served bv other devices. Two of the most effective norms, which
of commitments and the "duty" to produce a
are widely accepted, are the
good product and stand behind it. Not only is contract law not needed in many situations
but its use is thought to have undesirable consequences. For, apart from the delay and
671
75
81
82
83
84
possible loss of business, a carefully worked out relationship indicates a lack of trust and
blunts the demands of friendship, "turning a co-operative venture mto an antagomsttc
horse trade". There is, furthermore, a resulting loss of flexibility and the exposure to the
costs of litigation: ((1963) 28 Am. Social. Rev. 55). For a study supporting this see H.
Beale and T. Dugdale (1975) 2 BritJ.Law & Soc. 45, and see also R. Lewts (1982)
BritJ.Law & Soc. 153. See, also, Nussbaum, in Essays on Jurisprudencefrom the Columbia Law Review, p. 184 and the writings of Underhill Moore. Moore '"felt that the
degree of deviation in the behaviour of the litigants from regular, overt, institutional
behaviour provides the crucial index in terms of which decisions could be predicted. The
grosser the deviation, the more likely it is that the claims of the deviant litigant will not be
judicially allowed. For this reason Moore insisted that the focus of scientific legal analysis
should be the comparison of the behaviour of the litigants with patterns of institutional
behaviour". (Rumble, American Legal Realism, p. 163). A study of banking practices
confirmed the hypothesis that the court in fact used as its standard the degree whIch
litigants deviated from the institutional patterns of behaviour. Gross deviations were
"n;t accorded by the court a legal consequence conforming to the institutional consequences which would have followed had the standard device been used" (50 Yale L.J.
at p. 1250). See further J.H. Schlegel (1981) 29 Buffalo Law Rev. 195.
In addition to this theoretical perspective. Ehrlich was one of the first to undertake
empirical surveys to substantiate his thesis. Living in part of the Austro-Hungarian
Empire where there were no less than nine different ethnic and religious groups, "he had
his students investigate the 'practices and attitudes of nearby communities, using an
original but rather primitive personal interview questionnaire'" (Littlefield (1967) 19
Maine L. Rev. 1,2). Partridge suggests that Ehrlich may have drawn an overgeneralised
conclusion from a culturally diversified society which is not present in a more homogeneous one ((1961) 39 Australian J. of Phil, 201, 217).
Cj>Pound, post, 675.
Op. cit., p. 200. And see post, 673.
Cf note 10 onp. 660, ante and post, 905.
672
!he
to law struck a particularly responsive chord
m th.e Umted States m the early part of the twentieth century. The excharacter of American society, its material wealth. and its devotIOn to scientific technology, all encouraged the belief that the basic
problem was one of adequately controlling and distributing that wealth,
and tha.t the s?luti?n could best be attained by the application of the
developmg SOCIal SCIences to. Hence, law as a form of social control, to be
adequately employed in enabling just claims and desires to be satisfied,
85
86
87
88
89
An excellent study which demonstrates this is S. Henry, Private Justice (1983). He examInes disCiplIne m Industry and shows the integral links between private justice and
formal law. See also Gurvltch's criticism of Ehrlich: "the law of societies is artificially
Impovenshed by beIng confined to the spontaneous, as though it did not have its own
abstract propositions in autonomous statutes of groups, and its own rules of decision
elaborated In the functioning of boards of arbitration and similar bodies" (Sociology of
Law (1947). pp. 121-122).
Cf R. MnookIn and 1. Kornhauser (1979) Yale LJ. 950 and H. Jacob (1992) 26 Law
and Soc. Rev. 565.
The Legal Conscience (1960), p. 187. Ehrlich did suggest that the characteristic feature of
the legal norm is that it is, within the group, of great importance, of basic significance"
(op. CII., pp. 167-168). But this hardly offers "a reliable distinction between legal and unlegal norms", per B. Z. Tamanaha in Realistic Socio-Legal
95.
Though doubt has been cast upon this by G. Rosenberg, The
A good intellectual biography of Pound is
673
Social Engineering
For Pound, jurisprudence is not so much a social science as a technology,
and the analogy of engineering is applied to social problems. 9o He is
concerned primarily with the effects of law upon society and only to a
lesser extent with questions about the social determination of law. 91
Emphasis is laid on the need to accumulate factual information and
statistics and to this end Pound put forward a practical programme, in
which the establishment of an adequately equipped Ministry of Justice 92
looms large. Little attention is paid to conceptual thinking. The creative
role of the judiciary, on the other hand, is in the forefront, as is the need
for a new legal technique directed to social needs. The call is for a new
functional approach to law.
Pound took over Jhering's view of the law as a reconciler of conflicting
interests, and gave it certain distinctive features. For Pound the law is an
ordering of conduct so as to make the goods of existence and the means
of satisfying claims go round as far as possible with the least friction and
waste. Pound regards these claims as interests which exist independently
of the law and which are "pressing for recognition and security". The law
recognises some of these, giving them effect within defined limits. Pound
attempted to expound and classify the categories of interests which are
thus acknowledged in a modern democratic society.93 This seems to ignore the extent to which existing law is based on giving effect to vested
rights. Further, it has been pointed out by Stone94 that in an age of mass
communication and mass persuasion considerable difficulty may be experienced in distinguishing what are the actual desires of the public or
particular groups, in view of the operation of so many organised professional persuaders, both open and hidden. The public as a whole may
both lack the means of articulating its desires, or their expression may be
90
91
9:
9.,
(1974).
94
For Pound social engineering was "descriptive of a neutral process rather than prescriptive of pragmatic reform. It meant only that law was shaped in accordance with
social ends; it did not define particular ends or particular means of attaining them" (per
Wigdor, op. cit., p. 230). Pound did not see social engineering as a mechanism for
producing rapid or radical social departures.
Cf Ehrlich's approach ante. 670.
In common law countries; civil law countries usually possess one.
Charles Fried, "Two Concepts of Interests" 76 Harv.L.Rev. 755, distimmishes claims
from interests on the basis that Ihe latter involves "an assertion of competence to determine how much weight exactly to give the want". (p. 770). One must see "a litigant's
of speech [asl not simply a claim for immediate satisfaction [but asl
reference to
the assertIOn 01 an mterest whIch can be understood only as a reference to svstematic
ways of doing things, to role, institutions and practices". (p. 769.)
See Human Law and Human Justice, pp. 278 279,282284.
674
675
!east, wishes to protect, there is some force in the contention that it reads
rather like a political manifesto in favour of a liberal and capitalist societv. as well as suffering from excessive vagueness. Moreover it cannot
be
that these
of interests have ever been proved to
exist,
facto, by scientific ;esearch; what they amount to really are no
more than common-sense inferences deduced from different branches of
the legal system itself, as symbolising the social purposes of the community. And the further question remains, what happens when these socalled interests conflict? or, in other words, how do we evaluate them in
due order of priority?5
Values
Pound's answer here is that every society has certain basic assumptions
upon which its ordering rests, though for the most part these may be
implicit rather than expressly formulated. 6 Certain of these assumptions
may be identified as the jural postulates of the legal system; as embodying
its fundamental purposes. Pound has endeavoured to state what these are
for existing Western society,7 while recognising that they are not static,
but may change as society develops new needs and new tensions. Postulates mav indeed conflict} but the success of any particular society will
depend on'the degree to which it is socially integrated and so accepts as
common ground its basic postulates. It is sometimes objected that this is
natural law creeping in by the back door, but there is undoubtedly a
distinction between maintaining the objective validity of ethical rules and
simply ascertaining the operative values that exist, de facto, in a given
society. Whether Pound's jural postulates correctly identified the legal
values of twentieth-century America may be doubted. Value judgments
may affect our choices and conduct and should, as Pound urges, be
factors which weigh in determining the current of judicial decisions. Also
their relative value mav be assessed. as with Utilitarianism, by regard for
the consequences, and though these cannot be exactly predicted, social
studies may provide some clues.
Pound does not give much detailed attention to the way one conflicting
interest is to be compared with another, but he does indicate that if such
an interest is stated in its social aspect then so, too, must the other
interests for otherwise there will be a built-in bias in favour of the social
as
the private view. Thus, suppose a court is considering whether
a factory, which is operating in a residential area, constitutes a nuisance.
If the court is considering the discomfort inflicted on adjoining residents,
Another problem is that interests often cannot be secured unless they are able to depend
on values. For example, if one regards racial equality as an interest, it is difficult to see
how it can be made to work until integration and non-discrimination are accepted as
postulates. See Barry, Political Argument (1965), pp. 124-126.
Kohler's influence was acknowledged: Interpretations of Legal History, Chap. 7.
See post, 722.
Though none of Pound's do. See, e.g. Pound's careful rationalisation of the nascent
postulate of
676
this must be weighed against the individual interest of the factory owner
and not against the social interest of the factory, for instance, the em9
ployment it offers. Some support for this view may be found in the
English nuisance cases which hold that the fact that the defendant factory
owner is a public benefactor is irrelevant. This might have been appropriate in an individualist age, but it seems doubtful how far social interests ought to be ignored at the present day. Perhaps the appropriate
answer is that private interests should always be balanced one against the
other and then social interests should be evaluated separately, before a
final balance is sought between both types of factor. 10
A Consensus Model of Society
dIgm.
mnney has argued that the law consists of the interests of only
See the Canadian case of Bottom v. Ontario Leaf Tobacco Co. [19351 2 D.L.R. 699;
another example is W v. Egde/l [1990J Ch. 359.
10 For Pound's view that in "weighing" interests, the comparison must be made "on the
same plane", whether this be private, public or social, see R. Pound, Jurisprudence, vol. 3,
11 pp. 328-331 and (f G. Sawer, Law in Society (1965), pp. 156-160.
Cf Holmes, quoted ante, 220.
The Child Savers (revised ed., 1977).
b Symbolic Crusade (1963).
:: The Legitimisation of Morality (1970) or P. Bean, The Social Control of Drugs (1974).
The Limits of the Legal Process (1983).
16 The views of Durkheim, Ross, Ehrlich and Pound are examples of it. See also Friedmann,
Law In A Changing Society (1972). A good critique, using Durkheim as the model, is T.
Campbell, Seven Theories of Human Society (1981), Chap. 7. See generally, the critique in
_ Gouldner, The Coming Crisis of Western Sociology (1970).
11 There is a danger in looking at these two models uncritically which Nelken identifies. He
makes the correct observation that it "can lead to the ... error of identifying law so
closely with the form of the society that it becomes difficult to examine the special role
performed by legal institutions and conceptions as a repository of traditional and cultural
meanings" (1982) 9. J.Law & Soc. 177, 184).
9
1:
677
19
20.
21
22
23
24
25
16
27
28
Crime and Justice In Society (1969), p. 25. In his later writing he has rejected this terminology. Law is now, according to him, "the tool of the ruling class" (Criminal Justice
in America (1974), p. 10).
Crime, Power and Morality (1971), pp. 34.
Some acts are labelled as "patriotism".
See R. v. R. [1991] 4 All E.R. 481.
. .
See Carson, (1970) 10. BJ. Crim.83; 33 M.L.R. 396 and his study of safety on 011 ngs,
The Other Price of Britain's Oil (1981) and Pearce in Taylor and Taylor, Politics and
Deviance (1972) and Crimes of the Power/ill (1976).
Cf. Kolko, Railroads and Regulations 1877-1916 (1965), particularly pp. 144 151. But the
legislation in practice may be directed against a different group from that supposed by
the legislative entrepreneurs. An excellently-documented example of this is D. Nelken,
The Limits of The Legal Process (1983). The Rent Acts were directed against "Rachmanism", exploitation and harassment of tenants by commercial landlords. The
of those prosecuted were working-class home-owners involved in complex "domestIc
disputes with their tenants.
Becker, Outsiders (1963) describes them as "moral entrepreneurs".
Theji, Law and Society (1952), Chap.!.
(1964) 12 Social Problems 67.
Crimes without Victims
Whigs and Hunters
al., Albion's Fatal Tree (1975).
678
of law in society. But he did little empirical research, thollgh such work
was undertaken by contemporaries. Their writings are characterised by a
concern for substantive legal problems rather than the workings of legal
institutions, and by a penchant for law reform, doubtless inherited from
Pound and the Realists. Furthermore, the initiative for this empirical
research was taken by lawyers, not sociologists, and often by practitioners rather than jurists. Perhaps as a result, conclusions and implica.
hons
were f rame d'III gran d'JOse terms.
The second stage was characterised by a concern for method. The skills
of the academic lawyer and sociologist were synthesised: the jurist often
suggested the field of activity and posed the questions: the sociologist
collaborated in the research, adapting his techniques from the mainstream of sociological inquiry. The Chicago jury project was the result of
one such collaboration. 41 At the same time the jurist trained himself in
the techniques of sociology, the mechanics of social surveys, the use of
statistics and other necessary technological skills. The jurists of this
second generation were content to survey narrower problems and achieve
less far-reaching conclusions.
Pound died in 1964, and, although his writings span sixty years, his
seminal influence dates from the his writings in the first third of the
twentieth century. It is all too easy to identify sociological jurisprudence
36
with Pound. But sociological jurisprudence neither begins nor ends with
Pound, and it is valuable to identify some more recent trends in sociological thought.
Selznick, a leading American sociologist, has pin-pointed three stages
in the sociology of law. 37 Pound, together with his continental progenitors, belong to the first stage, wherein the pioneer, the prophet in the
wilderness communicates a perspective. So, Pound identified the task of
the lawyer as "social engineer", formulated a programme of action, attempted to gear individual and social needs to the values of Western
democratic society. The early Realist writings convey similar orienta38
tion. Pound, and Holmes 39 too, was a "generalisef", a purveyor of
"grand theory": he provides the theoretical context for an understanding
Akers, 3 Law & Soc. Rev. 463; Roby, 17 Social Problems 83; Greenwood and Young,
Abortion in Demand (1976).
30 Becker, Outsiders (1963); Lindesmith, The Addict and the Law (1967); Dickson, 16 Social
Problems 143. But for the view that neither model is explanatory and that an adequate
theory of lawmaking must begin with an understanding of the structural constraints that
exist in political, economic and structural relations see Chambliss and Zatz, Making Law
(1993).
31 See C. Wright Mills, The Power Elite (1956), c{: ante, 213.
32 See A. Rose, The POlrer Structure (1967). . .
Crime and Justice in
(1969); The Social Reality of Crime (1970).
Cl'ltzque of Legal Order (19/4) .
.>0 Class and Class Conflict In Industrial Society (1959).
36 "Pound was the perfect type to direct the transmission of new learning to an intellectually
rigid profession .. His legal theory was marred by its contradictions and ambivalence,
but there was nothing ambivalent about his influence ... In the last analysis, his most
important legacy was in the questions he posed rather than the answers he provided" (D.
. Wigoder, Roscoe Pound. Philosopher of Law (1974), p. 287).
." See "The Sociology of Law" in R. Merton, L. Broom and L. Cottrell (eds), SO('iol,ogy
Today: Problems and Prospects (1959).
29
)s
Llewellyn,
800.
pOSL
830<
679
But "grand theory" with Pound. In did not die Lasswell and McDougal,42
find the same broad generalisations and "grand prospectus".43
Their theory is one of decision-making. There are, they postulate, a
number of "desired events", catalogued under such vague headings as
power, enlightenment, wealth, respect for human dignity, health and
well-being, skill, affection and rectitude. For each of these categories they
ask whether the legal process, in the context of the social system, is
achieving a maximum sharing of the particular value. So, on health and
well-being, it is asked whether "the legal system succeed[s] in stimulating
and sustaining progress toward safety, health and comfort in every
community".44 Such a value-laden priority as "progress" can be explained by the articulated democratic and utilitarian aim of the philosophy.
40
41
42
43
44
So. Underhill Moore and Charles Callahan's research on traffic and parking regulations
described as contributions to psychological learning theory. See 53 Yale L.J. 1 as to
which see J.H. Schlegel ([98]) 29 Buffalo L.Rev. 195,267-292.
See H. Kalven and
Zeisel, The American Jurl' (1966). Other examples are the Columbia Project for Effective Justice, see ante, 8, n: 52 and the study of the economies of
personal injury litigation in (1961) 61 Colum. L.R. 1; empirical research on the legal
profession (Carlin, Lawyers on their Own (1962); Smigel, The Wall Street Lawyer (1964),
and see the contributions in Part 5 of Aubert Sociology of Law (1969), particularly those
by Rueschemeyer and Dahrendorf); work on the police (Skolnick, Justice Without Trial
(1966) and arrest (La Fave, Arrest; The Decision to Take a Suspect into Custody (1965))
and many other subjects.
See (1943) 52 Yale L.J. 203; (1952) 61 Yale L.J. 915; 21 Rutgers L.Rev. 645, also in Haber
and Cohen (eds.), The Law School of Tomorrow (1968), p. 87.
See Kalven in The Law School of Tomorrow. op. cit., at p. 161.
ibid,p. 90.
H.
681
and McDougal is "simply the Poundian paradigm broug);lt to maturity;,52 in that it takes into account the same basic insights but organizes
and svstematizes the studv oflegal institutions in a way that Pound (and,
indeed the Realists) was
able to do. But does it offer anything but' a
fancv analvtical scheme with new terms, that does anything more than
law;ers, j;dges and legislators do all the time?,,53 And is the checklist
tainted, as is Pound's categories of social interests, with excessive generality and an imprecision which makes it incapable of providing real
guidance? As Herget puts it: "While the use of such a checklist presumably forces one to articulate and clarify the values involved, the
classification of values does not really take us much beyond talking about
the 'public policy' in favour of this or that". 54
680
Talcott Parsons
Stone typified modern sociological jurisprudence in arguing for
to
enable us to see the social and economic order in its complex unity.5) One
of the main faults of classical sociological jurisprudence was, he believes
the treatment of particular problems in isolation. "The sociological jurist
of the future will generally have to approach his problems through a vast
effort at understanding the wider social context". 56 He argued that, in
spite of its difficulties ;nd faults, 57 the Parsonian "social system" is the
type of model to which sociological jurists must aspire. 58 A common
malaise in sociological jurisprudence is its methodology of working
outwards from legal problems to the relevant social science. Instead, what
is needed is "a framework of thought receptive of social data which will
allow us to see 'the social system' as an integrated equilibration of the
multitude of operative systems of values and institutions embraced within
it".59
Parsons's functional approach has few supporters today. He saw the
major function of the legal system as integrative. "It serves to mitigate
potential elements of conflict and to oil the machinery of social intercourse. It is, indeed, only by adherence to a system of rules that systems
of social interaction can function without breaking down into overt or
chronic covert conflict".60 Parsons insisted on the analytical separation of
the "legal system" and the "political system". The analytical separation is
made easier by Parsons's assertion that the interpretive work of the
52
45
46
47
48
49
50
51
See J). Paust, "The Concept of Norm" (1980) 53 Temple L.Q. 226 which contains a
useful description of the McDougal-Lasswell theory, while suggesting some minor
modifications.
ibid. p. 234. Regard should also be had to the larger world community, e.g. as reflected in
global human rights law (see p. 284).
At p. 240.
At p. 242.
Reliance in this respect is particularly placed on the doctrine of "political questions". (See
p. 250).
See (1943) 52 Yale L.J. 203
Kalven, op. cil., p. 161. More sympathetiC is Moore (1968) S4 Virginia L.Rev.662.
53
54
55
56
57
58
59
60
682
courts is the central feature of the legal order: the legislature, the centre of
the political system, by contrast formulates policy.61 This Parsonian
model has been developed by Bredemeier. He sees the legislature providing the courts with policy goals in return for interpretation and with
enforcement in exchange for legitimation. But what are these goals?
Bredemeier, like Parsons and Stone, assumes a value consensus
society. Nor is this the only problem with Parsonian-type social systems.
The analytical distinction between legal and political systems is not easv
to sustain. What of judicial decisions which are grounded overtIv i;
policy? And is not a legislature which makes laws p;rticipating in a
process? And should it be assumed that the legal system is integrative?
There are occasions when far from being a contribute force to the good
order of society the legal system is positively dysfunctional: for example,
when the judiciary's ignorance of commercial practices drives business to
arbitration and the decisions of courts cause industrial strikes, or litigation is prohibitively expensive. What is regarded as functional for one
section of the community may be quite the reverse for another. There are
too many problems with Parsonian-type models for us to invest as much
hope in them as Stone did.
Selznick
Selznick claimed in 1962 that the third stage had not yet been reached. It
is the time when sociological jurisprudence will develop an "intellectual
autonomy and maturity", when having learnt the necessary skills, the
jurists can return to some of the theoretical questions posed at the outset,
the function of law, the role of legality, the meaning of justice, and a
sociology of law will emerge. Selznick, for example, has tried to understand legality from a sociological position. 62 The development of a sociology of law does suggest that Selznick's third stage has been reached.
This is discussed in the next section.
Another of Selznick's concerns has been with attempting a rapprochement between sociology and naturallaw. 63 He claims that sociologists are wrong to separate fact and value since they deal with normative
systems where values are central, and where what is involved consists of
measuring actual social conditions against a "master ideal". The important ideals in the legal system, Selznick asserts, are justice and legality.
In discussing the latter Selznick comes close to what Fuller advanced in
61
62
63
An attempt to apply Parsons's ideals is L. Mayhew, Law and Equal Opportunity (1968), a
studv of the Massachusetts Commission Against Discrimination. an institution designed
to
laws prohibiting racial
Mayhew found the law met d;eply
entrenched structural obstacles. The Commission tried to compromise between opposite
pressures. Mayhew concludes the Commission played an integrative role in the community by creating an equilibrium between opposing pressures. cf. Mayhew in B. Barker
and A. Inkeles (eds.), StabilitJ' and Social Change (1971), pp. 187-210 where he tries to
discover what is missing in the Parsonian scheme.
See Law. Society and Industrial Justice (1969).
(J 96 J) 6 Natural Law Forum 84.
683
For much of the twentieth century the sociology of law was eclipsed by
sociological jurisprudence. It was Pound, rather than Weber or Durkheim. who was the dominant figure. From the 1960s the term "sociological jurisprudence" was used less frequently, and what carne to be
64
65
66
67
68
69
70
71
72
73
Ante. 124.
Ante. 129.
Op. cit., n. 77, p. 93.
ibid. p. 102.
Cf Mead, ante. 195 and the discussion of Finnis, ante, 131 et seq.
A point made by Gordis, in Cogley, Natural Law and lv/adem Society (1966), p. 257.
Law. Society and Industrial Justice (1969), p. 7.
ibid. cf ante, 215.
Ehrlich maintained that the legal order of associations was the "'most basic form of law"
(Principles of the Sociology or Law, p. 37). Ehrlich relies on coercion as a distinguishing
mark but this does not allow him to distinguish law from social contro!.
Described by Nonet as "jurisprudential
see (1976) 10 Law and Soc. Rev. 525.
This is not what the sociology of law is about, as those who remembered what Weber, Durkheim, Ehrlich had written were able to
point out. For the sociology of law, as Campbell and Wiles explained in
684
"To many observers, the work done so far amounts to very little: an incoherent
or inconclusive jumble of case studies. There is (it seems) no foundation; some
work merely proves the obvious, some is poorly designed; there are no axioms,
no "laws" of legal behavior, nothing cumulates. The studies are at times interesting and are sporadically useful. But there is no "science"; nothing adds
up.... Grand theories do appear from time to time, but they have no survival
power; they are nibbled to death by case studies. There is no central core.,,80
Socio-Iegal studies was largely lacking in any theoretical underpinningSI . The law-note this often defined narrowll 2-and the legal
system were treated as discrete entities, as unproblematic, and as occupying a central hegemonic position. There was rarely any attempt to
relate the legal system to the wider social order or to the State. When
reforms were suggested-and as progressive scholars reform was often
the aim-they were to make the legal system operate more efficiently or
effectively. And the emphasis was more on the "behaviour,,83 of institutions rather than on trying to understand legal doctrine.
74
75
76
77
78
79
80
61
83
685
1976:
"the focus is no longer on the legal system, known and accepted, but on understanding the nature of social order through a study of law.... The goal is
not primarily to improve the legal system, but rather to construct a theoretical
understanding of that legal system in terms of the wider social structure". 84
89
90
91
92
93
686
But can sociology "climb out of its own skin and get inside the law to
understand and explain the law's 'truth' "'194 That is has difficulties in so
doing are attributable only in part to its limitations. As Banakar has
convincingly shown, "the fact that law secures its domination and authority through normative closure. '" denies the commonality of discourses of sociology and law, posing unique 95 methodological problems
for the sociology of law. The sheer institutional strength of the law
hampers access to empirical material, questions the relevance of socioinsights into legal reasoning and ... raises doubts on the adequacy
OfsoclOlogy to produce a knowledge which transcends its own reality".96
Nelken's response is that if we are "to bring sociology oflaw up against
its limits",97 its dependence on sociology must be recognised. And it
becomes necessary to "examine more carefully how its reflexivity and that
of law relate".98 Nelken points to a range of writing in legal and social
theory which sets out to analyse differences (and similarities) between
sociological reflexivity and legal closure: Lyotard's "phrases in differ,,99
h ' s autopOlesls,
"1M urp h
' estrangement.ence,
u L
mann
ys' I
aws
Cotterrell believes that the law can profit from sociologically-inspired
resolutions, particularly where legal doctrine is rift by conflicting precedents. This is true, and it would be foolish for the lawyer today to
ignore social insights. But, as Nelken points out, the introduction of such
insights also has "the potential to distort or at least change
legal
practices rather than simply help them to sort out self-induced muddles".3 If only we knew when social science could guide to the answerand convince us it was the right one. Nelken may well be right that social
insights function differently when they prise open legal closure-he cites
4
Downs's discussion of the so-called "battered women's syndrome" as a
method of displacing law's myths about woman battering-than when
they are used to provide closure. 5
But, as Trubek points out "whatever social science can do for law, it
cannot offer ... objectivist grounding for legal policy".6 Not that this
view is accepted by all legal sociologists.
Donald Black, for example, and pre-eminently, predicts the development of what he calls "sociological law" when lawyers reflexively inter-
The question as posed by R. Bamakar (2000) 27 Journal of Law and Soc. 273,274.
She shows differences with medical sociology.
Op cit, n. 21 p. 284.
97 Op cit, n. 12, p. 415.
98 ibidp.417.
The Diflerend: Phrases in Dispute and post, 1264.
(1992) 13 Cardozo L.R. 1419, and post, 778.
2
The Oldest Social Science? (1997) (on which see A. Jacobson (1992) 26 Journal of Law
and Soc. 260).
Op cit, n. 12, p. 422.
4
See Downs, l110re Than Victims: Battered
the Syndrome Society and the LaH'
(1996).
Op cit, n. 12, p. 422.
_
6 (1990) 18 Florida State U.L.R 1 (and see post, 76.
687
nalise the conclusion that sociology is the best guide to leg:;tl outcomes. 7
According to Black, the sociology of law entails the adoption of an observer's perspective. 8 This requires detachment and is in striking contrast
to what Cotterrell advocates. But Black would claim that its findings are
of great relevance to participants in the legal system. It may challenge
long-standing conceptions about law. "Official versions" of the intentions and purposes of particular statutes are not, as a result, granted
automatic respect. but are instead subjected to critical scrutiny.9 So too
are the "conventional justifications of court procedures, and the legal
representation of clients" .10 The sociology of law "even suggests new
possibilities for manipulating legal systems deliberately in order to bring
about desired results, techniques of social engineering likely to become
highly controversial as well as highly effective".]] 11 also puts into perspective "many of the most time-honoured notions of lawyers and legal
scholars"Y Thus, discretion is shown to be not random and
though it may be doubted if anyone thinks it is-but rather highly regular
and patterned ("constrained by the dictates of social laws" 13). Black's
sociology of law suggests also a different understanding of discrimination; that it is not exceptional but ubiquitous, and is not limited to the
effects of social class or race. It is, says Black, "an aspect of the natural
behavior of law, as natural as the flying of birds or the swimming of
fish".14
In the late 1990's a new form of sociological jurisprudence was proclaimed: realistic socio-Iegal theory. To Brian Tamanaha, whose book is
thus entitled,15 this identifies and develops foundations 16 for social scientific study of law. He draws on philosophical pragmatism 17 to establish
an epistemological foundation which specifies the nature of social science
and its knowledge claims, and a methodological foundation which uses
both behaviourism and interpretivism. 18 He contrasts his realistic approach to socio-Iegal theory with critical schools of socio-Iegal theory, in
particular with the critical legal studies movement of which he is scornful. 19 Like Cotterrell, though for very different reasons, Tamanaha believes that legal theory and socio-legal studies have a lot to learn from one
another. Unlike many sociologists of law, who took a definition of law
9)
96
10
II
12
13
1:>
16
17
18
19
688
"What law is and what law does connot be captured in any single scientific
concept. The project to devise a scientific concept of law was based upon a
mlsgUlded belIef that law compnses a fundamental category. To the contrarv
law IS thoroughly a cultural construct, lacking any universal essential
Law is whatever we attach the labellmv to.,,23
.
He would appear to confront conceptual jurisprudence face on bv
denying that there is a concept of law. That he does not go this far
apparent from articles Tamanaha has published 24 and from a response to
2
this
criticism ) in a "Symposium" on his book. 26 There he says of
the?flzmg about the concept of law that "we do it because law is a key
SOCial phenomenon that must be understood, analyzed and discussed,
which could not begin nor be carried far without conceptual analysis"??
It is rather a recognition--though this is not novef 8-that different
phenomena fall under the concept "law". Law is a concept conventionally applied to a "variety of multifaceted, multifunctional phenomena: natural law, international law, primitive law, religious law,
customary law, state law, folk law, people's law, and indigenous law
.
From the state law of Massachusetts to the law of the Barotose
".19
And, as Bix points out, Tamanaha implicitly "accepts and supports the
idea of a concept of (Western) state law".30
Tamanaha insists, however, that there is not a "central case of law".31
He cites the example of international law which has its own integrity and
has been functioning as a form oflaw for at least two centuries but which
remains under traditional conceptual analysis a "borderline form of
Weber and Malinowski both worked with definitions oflaw which could have been taken
straight from Austin. See ante, 212 and post, 910.
-, Op. cit., n. 41, pp. 105-128.
2" ibid., p. 130.
23 ibid., p. 128.
'"'4
(2000) 27 J.. Law and Soc. 296 and (1995) 15 Oxford J. of L.S. ':;01.
By Bnan B1X (2000) 32 Rutgers LJ. 227, 229-230.
(2000) 32 Rutgers L.J. 28 I.
"7 ibid., p. 283.
2, Austin recognises this: see ante, 246. So of course did Hart (The Concept of Law (1994),
pp. 15 -16) and does Finnis (note his emphasis on the "focal meaning" of law.
29 Op. cit., n. 41, p. 128.
30 Op. eil., n. 51, p. 229.
31 Op. eil., n. 52, p. 284.
689
Hart, it will be remembered, described his text as an "essay in descriptive sociology".36 But it contains no description of social practices
drawn from any legal system. 3? Can conceptual jurisprudence have autonomy (or at least relative autonomy) from empirical reality? For Tamanaha it cannot. Thus one of the overriding objectives of his Realistic
Socio-Legal Theory is to "bring into legal theory an infusion of insights
from the social scientific study of law. Socio-Iegal theory is a practice of
theorizing about law that incorporates aspects of both (conceptual and
socio-Iegal) approaches to legal phenomena". 38 Sociological inquiries
into "the practices that legal theories purport to analyze and explain (and
describe and prescribe) are essential to the enterprise oflegal theory, or at
least to a legal theory that wants to be good at what it does". 39 Legal
theory, however, can neither be "subsumed within" nor "dictated to" by
legal sociology.4o
Questions remain, one, taken up by Rubin, is:
"To say that 'truth is what works or that theories are to be judged on the basis
of their usefulness begs the basic question, for we still need to know the criteria
for determining usefulness, for deciding what works and what does not. This
opens all the questions that pragmatism seeks to preclude.... Something more
is needed, some criterion to tell us how we recognise that a particular practice
or social experience has enerated something which we are willing to describe
as truth, or knowledge." I
20
'I
32
33
34
ibid.
He does not include within this the implications of cyberspace on which see M. Radin
and R.P. Wagner (1998) 73 Chicago-Kent Law Rev. 1595.
Op. cit., n. 52, p. 285.
ibid.
Ante, 336.
Bix, op. cit., n. 51, questions whether Hart's "claim" can be taken seriously (see p. 236).
"" Op. cit., n. 52, p. 287. He claims Hart, Posner (The Problems a/Jurisprudence (1990 and
Dworkin (Law's Empire (1986 as allies, but this is contentious.
39 ibid., p. 287.
40 ,bid., p. 288.
35
36
41
(2000) 32 Rutgers L.R. 241, 244. For another view of taw and truth, see D. Patterson,
Law and Truth (t 996) (general theories of truth are irrelevant to social practice of law).
690
I) whether the information is reliable and fits the facts of the matter
about legal phenomena (i.e. do judges in fact treat people differently because of race?);
2) whether it fits within a meaningful framework of interesting
questions about law
for the community of socio-Iegal investigators; and
3) whether it enhances our ability to observe, understand, explain,
describe, analyse, prescribe, critique and change legal practices to
serve our interests, to make law better. What those interests might
be, what it means to make law "better", cannot be determined by
pragmatism itself. That determination must be made in the social
arena by social actors as a matter of substantive policy choices" .45
Much of interest emerges from Tamanaha's realistic socio-Iegal theory.
Most significantly, that law is a social practice amenable to social scientific study, and that legal theory and socio-Iegal theory have a lot to
learn from each other. 46 It has long been recognised that sociological
thinking about law would be considerably hampered without the insights
of analytical jurisprudence. But analytical jurisprudence can look to sociology as well and has much to gain provided it uses the data appropriately. Thus it is important for those studying the concept of law to
know why people obey (or don't obey) the law,47 why people use extralegal norms and procedures to resolve disputes,48 how other societies (not
52
53
42
54
43
55
58
44
45
46
47
48
691
)0
5?
60
ibid., p. 52..
ibid., pp. 193 et seq.
Unger's study of the legal order is directed towards showing why citizens of liberal society find it both necessary to struggle for the rule of
law and impossible to achieve it. The disintegration of traditional types of
legality and legal thought reveals far-reaching changes in society and
culture. Unger discusses the character of these changes through a comparison of different types of modern society. He sees "the state, a supposedly neutral overseer of social conflict, forever caught up in the
antagonism of private interests and made the tool of one faction or another".61 In postliberal society this is recognised and the state takes on a
welfare aspect. 62 There is also the recognition that other organisations
have power which leads to the development of corporatism. Welfare
emphases gives rise to policy-oriented legal reasoning, interest in substantive justice, general clauses in legislation. The generality of the legal
order is undermined as is its autonomy. Postliberal society is moving,
Unger claims, away from formality towards equity and solidarity. Equity
is the intuitive sense of justice in the particular case: solidarity is "the
social face of love; it is concern with another as a person rather than just
respect for him as a bearer of formally equal rights and duties. 63 Unger
believes "one is never permitted to take advantage of legal rights so as to
pursue one's own ends without regard to the effect one may have on
others. This ideal holds that the overriding collective interest is the interest in maintaining a system of social relations in which men are bound
to act, if not compassionately, at least as if they had compassion for each
other".64
The future 65 lies, Unger believes, in a return to a customary law or
tribalist society or in the reassertion of communitarian concerns. The first
offers a suppression of individual freedom because the existing order is
sanctified: the second subversion of inequality and confidence in collective choices making possible "an ever more universal consensus about the
immanent order of social life". 66
No short summary can do justice to Unger's arguments or give any
idea of the wealth of illuminating illustrative detail to be found in his
treatise. His conclusions are at times reminiscent of Plat0 67 and at others
at Marx. 68 His style borders on the theological and his discussion of
contemporary society is often over-abstract. But whether one agrees with
his conclusions or not, and they are sure to provoke considerable controversy and debate, his book is one of the most stimulating essays of
legal and social theory to have appeared for many years. His discussion
of the evolution of law and its types, combining historical research and
philosophical argument, makes Law in Modern Society a valuable contribution to our understand of legal culture.
692
Seeing law in this way is to acknowledge that the legal system must be
"socially effective" and "ethically justified".74
It will be observed that in Habermas's use of the term "validity" is
embraced the guarantee of law's legitimacy. It is more conventional to
understand legitimacy as the acceptance of law by citizens,75 and validity
in terms of a test like the "rule of recognition".76 Sociologists look to
lawyers' and legal officials' views of what is authoritative as representing
only one perspective (albeit a most important one) in considering how
power is imposed through law.
Habermas argues that legal philosophy must recognise fundamental
changes in the social environment of beliefs and values in which the law's
claims to authority must ultimately be grounded. And validity and fac69
70
61
62
63
64
65
66
67
68
ibid. p. 181.
ibid. pp. 192 193.
Op. cit. p. 206.
ibid. p. 209.
ibid. pp. 238 242.
ibid. p. 240.
At one point (p. 242) Unger compares the prospects ahead of us to alternative between
the "City of Pigs" and "the Heavenly City". (cf Plato. Republic. 372D).
Post. Chap. I I.
693
_I
I
72
75
76
But is law essential to the integration of modern society?95 Have societies collapsed for lack of law to act as an integrative mechanism? The
most egregious example of disintegration in recent times is surely the
Soviet Union and, though the reasons for this are complex, it was not for
lack oflaw. Nor was this the case in its satellites, East Germany, Hungary
or Czechoslovakia. True, in all these countries law may have failed to fill
a vacuum. 96 In other societies which have disintegrated-in Africa for
example-there has not been the tradition of legalism and much law
under which they have operated was imposed by colonial powers. Habermas has got it the wrong way round. It is not that law holds together
societies that would otherwise collapse: rather that law is strong in wellordered functioning societies.
Tamanaha is surely right to insist that
694
"can disenchanted, internally differentiated and pluralized lifeworlds be socially integrated if, at the same time, the risk of dissension is growing, particularly in the spheres of communicative action that have been cut loose from
the ties of sacred authorities and released from the bonds of archaic institutionsT,91
78
79
80
81
83
84
85
86
87
BY
90
91
92
93
94
Post.778.
Ante, 662.
Ante, 666.
Ante, 670.
Ante, 685.
Ante. 686.
Ante. 687. Habermas ignores these contemporary legal sociologists.
Op cit. n. 70. p. 374.
(1999) 76 Denver University Law Rev. 989, 993.
Op cit. n. 69. p. 26.
76 Denver University Law Review 937 (post. 794).
ibid. p. 940 (and post. 796).
Op cit. n. 69. p. 135.
695
"just about everything that doesn't break society apart contributes to social
order: intersubjectivity. shared language, values, customs, conventions, beliefs,
practices, habits of action, role orientations, organized complexes of action
(institutional arrangements), associations, explicit co-ordination, shared
knowledge, self-interested action, survival instinct, altruism, the market, the
reinforcing effects of the successful conduct of affairs, spontaneous social organization, and more, including all those traits selected by evolution which
have helped the human species thrive as social animals.... and, yes, also
law.,,97
There are significant questions which must be asked and which Habermas ignores. Which laws (and whose laws) allegedly constitute the
cement of society? Is it the law of property (which most people do not
have)? Or family laws (largely irrelevant to most of society throughout
most of history and hence, even where relevant, ignored)? Or criminal
laws (used against the weak but rarely of use to them)? The old riposte to
"law and order" whose law? and what order? seems especially apposite
here. 98 Is Habermas's perspective one from the perspective of the economically powerful and/or legal functionaries? It certainly does not look
like one "from below".99 Perhaps Habermas should direct his attention
not to the preservation of society through law, but to why societies disintegrate and to the status of law in such societies. If Habermas were
riglit, one would expect law to play a much greater role in people's
everyday lives than we know it does. The most effective laws conform to
what people do anyway, I and there is, in general, profound ignorance of
the law. 2
Similarities with Durkheim's thesis are clear: see ante. 666.
Insights into which may be found in D. Shlapentokh (2000) 17 Social Philosophy and
Policy 269.
97 Op cit. n. 90, p. 995. See also Tamanaha (1995) 15 Ox. J. Legal Studies 969.
:: Cfthe Marxist view of law. post. 969.
.
For agreement see Tamanaha. op cit, n. 22. especially pp. 996 997. On questions of
muillculturahsm see C. Taylor. Multiculturalism (1994) (this includes a response bv
rlabermas at p. 107).
96
Critical Empiricism
We have seen how for Habermas the test for the legitimacy of law is the
3
discourse principle. But the standard set out Call persons possibly affected") is unattainable and, therefore, idealized. Habermas accepts this:
he calls his discourse principle "counterfactual".4 Can it therefore be
empirical? And if it is, this would amount to a claim that the law is
legitimate-certainly one fraught with danger. 5 And one anyway that
Habermas would be hard put to justify. As Tamanaha points out: "To
the extent that no real situation can ever meet the discourse principle, it is
not clear that it can ever be usefully applied as a concrete standard with
which to test real situations".6Inevitably then there are calls to substitute
for unanimity majority agreement. 7 And it would seem to argue for the
legitimacy of Western liberal democracies. 8 The discourse principle is
procedural. The success of deliberative politics depends
whether they will count this as a 'good reason'''Y This is not to deny the
importance of the legitimacy of the procedure but for most people it is the
outcome produced which counts.
A more fundamental objection to the discourse principle is the way it
emphasises "the citizen who participates in political opinion- and willformation".15 Citizens must, he insists, "be willing to participate in the
struggle over the public relevance, the interpretation and evaluation of
their own needs, before legislators and judges can even know what it in
each case means to treat like cases alike" .16 Though it is undeniable that
in an ideal world there will be such participation, it hardly represents
reality or even a realistic goal. l7 Tamanaha points also to the "alienating,
excluding effect of, and the irony of, a theory which makes an extensive
case for open and accessible discourse, but is presented in a form and
manner that is comprehensible only to the initiated.'.t8
The reference in the last paragraph to judges points to one other
problem with Habermas's thesis. Can it really account for the common
law? This, as we know, has caused legitimation problems for legal theorists. For long the declaratory theory of precedent was a convenient
smoke-screen. 19 Dworkin's picture of a succession of Herculean judges
creating law as "integrity,,20 is unlikely to satisfy historians of law. And
others, including those who are sceptical,21 can offer nothing very convincing. The central problem of modern legal theory for Habermas--the
tension between facticity and
only with the separation
of positive law and life-world forms upon the arrival of modernity. But is
this separation realised in a common law system? Can Habermas explain
the continued and pervasive operation of the customary forms and
processes that are the common law system? The role of the judge in the
common law world is different from in civilian countries and the latter
are Habermas's model. 22
696
6
7
10
II
12
13
697
CRITICAL EMPIRICISM
16
17
18
19
20
21
22
23
24
Critical Empiricism
as Trubek and Esser note,25 "for those who equate empiricism with a
value free search for objective knowledge, critical empiricism is a contradiction in terms". Law and Society studies is said to be going through
a crisis. Three concerns are voiced. That what was once a vanguard
movement is now an intellectual backwater. That it has lost its political
"edge", "becoming little more than the handmaiden ofpolicy-makers".26
That it has lost its support base and that it is threatened by the rapid rise
of other movements of legal thought, law and economics,27 critical legal
studies,28 feminist jurisprudence,29 and postmodernism. 3o
Critical empiricists claim to be developing a new approach to sociolegal scholarship. Silbey "envisions" and "proposes" a sociology of law
to "study law as a social practice".3l Sarat "offers a reorienting strategy
for empirical research on law in action".32 Brigham wants to "recast the
study of impact into the framework of interpretive social science".33
Those with these goals are not just lawyers and sociologists, but come
also from the disciplines of anthropology (Merry34 and Yngvesson 35) and
political science (Harrington,36 Mather,37 Villmoare 38). They have produced empirical studies, analyses of legal concepts and theoretical explications. Their goal is to highlight "objects and spaces, in the world not
previously recognised as significant".39 As Silbey and Sarat put it:
as "garbage" and of property matters as "crime" is repropuced in distinctions drawn by the court clerk between serious and trivial events, as
he negotiates the withdrawal and dismissal of complaints brought by
citizens. 42 Dismissals reproduce the separate spheres of community (held
together by ongoing ties) and law (a sphere defined in terms of rights and
entitlement), but are carried out through the "gentle violence" of dismissals "chosen" by the citizens themselves in the context of an ongoing
relation with the court clerk. It is through this relationship that the dependence of citizens on the court is created (as well as the status of the
clerk as the appropriate official for handling "garbage" produced). At the
same time it empowers citizens as agents who "choose" and the clerk as
an official who maintains the boundaries of law. Harrington and Merrl 3
have shown how the concept of mediator neutrality and detachment
emerge in diverse practices of selecting mediators who unselfconsciously
"produce" a nonjudgmental stance in their approach to handling conflict.
The mediator selection process becomes "a site for the ideological production of "neutrality" in the form of a detached stance",44 rather as, in
Yngvesson's research, the process of handling complaints by the court
clerk becomes a site for the ideological production of "garbage" in the
ongoing involvement of the clerk with trouble that "won't go away".
These interpretive socio-legal studies draw on the work of Bourdieu,45
particularly his analysis of "symbolic capital" and "symbolic violence".
Symbolic capital and symbolic violence create and maintain "a lasting
hold over someone" in "euphemized" form. 46 Symbolic violence is the
"gentle, invisible form of violence, which is never recognized as such, and
is not so much undergone as chosen, the violence of credit, confidence,
obligation, personal loyalty, hospitality, gifts, gratitude, piety".47 Such
conduct is "intrinsically equivocal", and is concerned with what "holds
together in practice". Analysis, he maintains and he is followed in this by
Yngvesson and Harrington and Merry, must attend to this and not get
lost in "self-mystifying demystification" .48 These examples show the ways
in which this group of thinkers 49 have highlighted concepts like "ideology" and "process" and have thrown new light on the contours of disputing.
Hut its critics, even those broadly sympathetic to its goals, detect an
underlying inconsistency. A reading of the group's literature suggests that
the participants "retain and share a belief that social science can provide
authoritative descriptions of the world. This belief keeps them from
698
"The task for those who seek to preserve that critical edge [in socio-Iegal
studies] is to reconstitute and reimagine the subject of socio-Iegal research. This
requires attention to epistemology and understanding, or how we can claim to
know and what claiming to know can possibly mean.... [The task] is to locate
and examine the knowledge and tradition we call law and society. [It is] suggested that it may be time to move our activity into places and spaces in the
social environment we have not previously considered in order to reconceive
the relationship between law and society.,,4o
A couple of examples may be used to illustrate this new epistemology
and focus. Yngvesson 4l has analyzed strategies of power in criminal
complaint hearings. She shows how the ideology of relational complaints
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
24.
42
43
44
47
48
49
Similar analyses of the ways the police sort cases can be found in R. Reiner,
of the Police (2nd ed. 1993).
(1988) 22 Law and Societv Rev. 709.
ibid. p. 730.
'
Outline of a Theory of Practice (1977).
ibid. p. 191.
ibid. p. 192.
,bid. p. 179.
699
The Politics
Often referred to as the Amherst group because it is loosely organized round a seminar
held there.
700
AUTOPOIESIS AND LA W
56
The autopoietic theory of law, associated with the German writers Niklas
Luhmann and Gunther Teubner,57 is adopted from biology. The word
"autopoiesis" was coined by a biologist to describe the self-referential,
self-replicating qualities of the typical biological system. 58 In most biological systems, the initial properties of a member of one generation are
controlled by properties of members of the preceding generation. Since
an autopoietic system can only use its own elements, it "constitutes the
:0
,I
52
:3
,5
56
57
58
59
60
61
62
63
6:
6)
66
67
68
69
70
71
701
since it is taken from a realm far removed from law? It may occur also
that this is a theory developed by someone with a civilian background.
Perhaps it is easier to see the value of Luhmann's analysis when the legal
system is codified -but such systems, it may be responded, are also not
closed or self-replicating. The French Civil Code antedates the industrial
revolution: its section on delicts is in five terse provisions. But the French
judiciary has been able to fashion a corpus of law to respond to industrial, economic, social and technological developments. Can this
really be explained by the notion of "structural couplings?" Perhaps the
pre-occupation with systems and boundaries can be attributed to German legal tradition. For, surely, it may be said, Anglo-American approaches to law, particularly in the twentieth century, have emphasized
the continuum between law, politics, economics etc. 72 Why is the economic approach to law so attractive to so many?73 Legal systems are
characterized by durability and stability and often they are resistant to
change. But occasionally radical changes occur? BrOlvn v. Board of
Education 74 and Roe v. Wade 75 in the United States,76 the sweeping away
of the marital rape immunity and the doli incapax presumption in England. 77 These examples reflect the normative adaptability of the legal
system to normative change within society. The autopoietic system is
open to facts but these are values. We could dress them up as facts, but
then what sense would there be in calling the system closed? Luhmann's
answer is to invoke the structural coupling, to which reference has already been made. Structural coupling is non-causative in nature: changes
in the moral environment do not cause normative adjustments in the
system, because it remains an intra-system choice whether or not the
change should be made. But does this convince the sceptic? Of course, it
was ultimately the "choice" of judges to reject the "separate but equal"
doctrine, to give women greater reproductive rights. But there were
constraints78 on these choices which to a large extent "caused" such
changes. Statutes not infrequently refer explicitly to extra-legal norms:
the Unfair Contract Terms Act 1977 refers to inequality of bargaining
power, the Matrimonial Causes Act 1973 requires a court considering a
clean break to consider whether the party upon whom it is to be imposed
can adjust without undue hardship to it. Luhmann's likely response will
separate facts and norms so that even a statute incorporating an extrasystemic standard can be described within autopiesis theory. But formalism of this kind distorts- perhaps too high a price to pay to preserve a
theory.
Any number of other questions may be asked. Does legislative history
702
72
73
74
76
77
Cf: Shklar's remark, ml1e, 24, that law is not a "discrete entity".
See ante, 557, Described by Barnett as "a view that caught on like no other since realism"
(97 Harv. L. Rev. 1223, 1229 (l9S4).
347 U.S. 4S3 (1954).
410 U.S. 113 (1973).
R. 1'. R. [1991] 4 All E.R. 4SI.
[1994] 3 All E.R. 190.
On which sec Dworkin. post, 1446.
703
R. VON JHERING
Law as Means to an End s7
The decisive position which I shall constantly keep in mind in the following
consideration is that of the security of the satisfaction of human wants; it shall be
the standard by which I intend to measure all the phenomena of commerce.
Want is the band with which nature draws man into society, the means by
which she realizes the two principles of all morality and culture. "Everybody
exists for the world", and "the world exists for everybody". Dependent as he is
upon his fellowmen through his need, and the more so as his need grows, man
would be the most unhappy being in the world if the satisfaction of his need
depended upon accident, and he could not count with all security upon the cooperation and assistance of his fellowmen. In that case the animal would be an
object of envy to him, for the animal is so made by nature that when it comes into
possession of the powers destined for it by nature it needs no such support. The
realization of the mutual relations of man for her purpose; the elimination of
accident; the establishment of the security of the satisfaction of human need as a
basal form of social existence; the regulated, assured and substantial system of
actions and methods which minister to this satisfaction, keeping equal step with
the need that is commerce.
The simplest form of satisfaction of a need, in man as in the animal, lies in his
own power. But whereas in the animal, need and power coincide, this is not the
See Pepper v. Hart [1992] 3 W.L.R. 1032. See post, 1417.
And see S. Herzberger (1993) 25 Connecticut L. Rev. 1067.
81-82 For example, G. Wells and E. Loftus, Eyewitness Testimony: Psychological Perspectives
(1984).
S3 (1992) 16 Legal Studies Forum 81, 97.
84 See also M. Rosenfeld (1992) 13 Cardozo L. Rev. 1681.
It has been called a "purified sociology of law": Rottleuthner (1989) 23 Law and Soc.
Rev. 779.
86 The (1992) Cardozo Law Review, vol. 13(5) is a symposium devoted to Luhmann's legal
,ociology. A further useful cntIque ofautopoiesis is James (1992) 19 J. Law and Soc. 271
(to which King replies at (l993)20J. Law and Soc. 143).
[Translated, L Husik(l924},]
79
so