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Merging Law and

Sociology

ISBN 3-931397-47-5

Beyond the Dichotomies

in Socio-Legal Research

Library of Congress Cataloging-in-Publication Data

Banakar, Reza.

Merging law and sociology : beyond the dichotomies in socio-legal

research / Reza Banakar.

p. cm. -- (Mobility and norm change ; v. 5)

Includes bibliographical references and indexo
ISBN 1-931255-13-X (hardbound)
1. Sociological jurisprudence. 1. Title. n. Series.
K370.B362003
340'.115--dc21
2003004831

Reza Banakar
Mobility and Norm Change
Volume 5

2003 Reza Banakar

Neither this book nor any part may be reproduced or transmitted in any
form or by any means electronic or mechanical, including photocopying,
microfilming, and recording, or by any information storage or retrieval
system, without prior permission in writing from the publisher.

GALDA + WILCH VERLAG

Glienicke/ Berlin Madison/ Wisconsin 2003

Printed and bound in India by Biblia Impex Pvt Ltd.

R. ~H55S

The lnside and Outside 01Law

CHAPTERTWO

The perspectives described aboye are not mutually exclusive and,

in principIe, the same person can entertain more than one such
perspective in a day's work. A lawyer, for example, can act as an
inside participant in one social setting by making a judgement and as
an outside observer in another setting by providing legal advice. In the
same day' work, the same lawyer might even act as an outside
participant by appearing before a court as a plaintiff or defendant. The
important characteristic ofthese perspectives, which we shall return to
further on, is that they interact with and inform each other. The
totality of what we perceive as law is, 1 shall argue, the outcome the
interaction of such perspectives at any given time and place.

The Inside and Outside of Law

Introduction
It was concluded in the previous chapter that the theoretical
constitution of mainstream sociology could not by itself explain away
the fragmentation of socio-legal research. In this chapter, we continue
the search for the sources of the problem by turning our attention to
the forms of knowledge which are produced by observing and
experiencing the internal or external realities of law.
As argued in the introductory chapter, we can distinguish at least
four standpoints each capable of producing a specific form of
knowledge and interest pertaining to law. The first standpoint is based
on the perspective of insiders who participate in and reproduce legal
processes and various institutional practices associated with law (the
inside participants). The best example of this group is practicing
lawyers such as judges or barristers. The second perspective belongs
to insiders who observe legal processes without participating in them
(the inside observers). A legal scholar systematising and expounding
legal decisions and cases or a solicitor advising a client or briefing a
barrister can be long to this second category. The third category
consists of outsiders to law, who for a limited period of time,
participate in legal processes (outside participants). Examples of this
group are plaintiffs, defendants, juries, lay judges and witnesses. The
fourth perspective belongs to those who observe legal processes and
institutional practices ofthe law from the outside without participating
in legal processes (the outside observers). Sociologists studying law's
effects or journalists reporting on trial proceedings can belong to this
second category. (See Diagram One on the next page.)

45

Participation

Observation

.\

Insider's

Perspective

l. Inside Participant
- Judges
- Barristers

2. Inside Observer
- Legal Advisors
- Legal Scholars

Outsider's

Perspective

3. Outside Participant
- Juries
- Plaintiffs

4. Outside Observer
- joumalists
sociologist

Diagram One

The inside participants, such as judges, and the inside observers, such
as legal advisors, share the practical insider attitudes and legal know
how, which the outside participants and outside observers usually (but
not always) lack. Since the focus of this chapter is on forms of
knowIedge and understanding of law, 1 shall in the following employ
the concept of "Iawyer" to represent the insiders who per definition
posses a legal know-how and their knowledge is rooted in the internal

....

46

The Inside and Outside 01Law

Merging Law and Soci%gy

reality of the law. Also, I shall use "sociologist" to represent the

outside observer, whose understanding of the law is not formed by a
practical insider attitude and instead is based on the external reality of
the law. Thus lawyer/sociologist and inside/outside of law are two sets
of ideal typical concepts employed here to serve the limited purposes
of this chapter and to tease out sorne of the properties of the field of
socio-legal studies.
In other words, in what follows immediately I have chosen to
depart from a simpler model of the relationship between the internal
and external realities of the law in order to avoid unnecessary
complications. Thus, the lawyer's understanding ofthe law in terms of
an independent system of legal norms and rule-based and case-based
reasoning is contrasted with the sociologist's description of law in
terms of socially contingent institutionalised behaviour. This contrast
is then used to highlight the tension between descriptions of law based
on first hand experience and observation of, or participation in, legal
processes and practices (which I have called "insider's view of the
law") and experience or observation of the law at a distance from its
institutions, without personal involvement in its processes (presented
in the following pages as "the outsider's view of the law"). Also,
special attention will be paid to the shortcomings of sociological
studies which are conducted extraneously to law without considering
the significance of the internal mechanisms of legal system that
determine the way law interacts with its social environment.

functionaries. The second perspective is that of "organisational

analysis", which considers the behaviour of the courts, the
administrative and enforcement agencies. The third perspective is
called "normative analysis" and concerns the examination of legal
norms as they are related to the social and moral values of various
groups in society. The fourth perspective is based on a systems
theoretical approach, and has received its original inspiration from
Talcott Parsons, and for this reason Evan names it "institutional
analysis". This perspective illuminates the tasks (such as conflict
resolution) which the law must perform in order to harmonise social
relations. Finally, the fifih perspective is caBed "methodological
analysis," and refers to the employment and application of
sociological methods of data collection in support of legal analysis.
This is ofien done by academic lawyers and as part of what is
essentially a jurisprudential study. The theoretical diversity and
complexity of the sociology of law has drastically increased since
1962 when Evan distinguished these five perspectives. Both law and
sociology have sustained fundamental challenges from postmodernism
and feminism.2 Yet Evan's description ofthe field is still applicable in

.J.
i

1. Two Approaches

"
Broadly speaking, sociological studies of law have given birth to a
number of perspectives or general approaches to the study of the
relationship between law and society. William M. Evan has
distinguished at least five such approaches.t The first of these is based
on a so-called "role analysis", and focuses on the behaviour of legal

l William M. Evan, Law and Sociology (New York, The Free Press of
Glencoe, 1962).

47

one respect.
Looking closely at these five approaches we discern a division
within the sociology of law indicating two "ideal typical" research
orientations based on different assumptions concerning law and
society. This division, which largue is still valid today, also reflects
the precariously constructed relationship between legal studies and
legal practice, on the one hand, and sociology, on the other. The first
orientation is firmly rooted within social sciences and receives its
intellectual impulses mainly from mainstream sociology. As pointed
out by Campbell and Wiles, whose understanding of the make-up of
the socio-legal field resembles that of Evan, the goal of this
orientation, which "attempts to be exogenous to the existing legal

2 For a recent overview ofthe social theoretical approaches to the study of

law see Reza Banakar and Max Travers, An Introduction to Law and Social
Theory (Oxford, Hart Publishing, 2002).

48

The lnside and Outside 01Law 49

Merging Law and Sociology

system", is to transcend the focus on laws, legal doctrine and the legal
system in order to "construct a theoretical understanding of that legal
system in tenns of the wider social structures".3 That is why "the law,
legal prescriptions and legal definitions are not assumed or accepted,
but their emergence, articulations and purpose are themselves treated
as problematic and worthy ofstudy".4
The second orientation is committed to a juristic paradigm, which
reaches its extreme form in Evan's fifth approach, which he called
"methodological analysis" where sociology is used not for substantive
analysis but basically as a tool for data coIlection. 5 This orientation
distinguishes itself by implicitly or explicitly accepting the hegemony
of positive law in relation to society. Thus, it tends to treat the nature
of the legal order as unproblematic. 6 It is worth noting here that this
type of methodological analysis, which is in its extreme fonn rare, is
interestingly enough methodologicaIly problematic. Within the
philosophy of social science it is maintained that there exists an
intricate relationship between sociological theorising and reflection
(or the images of the social world used as a point of departure for our
studies), on the one hand, and the development, employment and
application of various methods of research, on the other. Assuming
3 C. M. Campbell and Paul Wiles, "The Study of Law in Society in
Britain" in (1976) 10 Law and Saciety Review 547-78 at 553.
4 Ibid.
5 Campbell and Wiles also argue in a similar fashion sharply
distinguishing between sociology of law-which they view as a speciality
within general sociology aiming to illuminate the relationship between legal
order and social order-and socio-legal studies, which according to them
focuses on the problems of justice and law. See C. M. Campbell and Paul
Wiles, "The Study ofLaw in Society in Britain" in (1976) 10 Law and Saciety
Review 547-78.

6 Also see Roscoe Pound, "Sociology of Law and Sociological

Jurisprudence" in (1943) 5 University al Taranta Law Jaurnal at 2-3. Pound
distinguished between sociology of law, which "proceeds from sociology
towards law" and sociological jurisprudence" which "proceeds from historical
and philosophical jurisprudence to utilization of social sciences and
particularly of sociology, toward a broader and more effective science of
law".

~.

that this conclusion is correct, one must view any analysis of the law,
or any other social phenomenon for that matter, that claims to have
been conducted exclusively to gather data, without fonnulating and
reflecting on its underlying assumptions or its socio-political aims and
aspirations, with great suspicion. This is also why divorcing the
juristic approach (or "socio-legal studies" as it has been used to
indicate the academic lawyers' interest in the application of social
scientific methods of analysis) from a more sociologicaIly and
theoreticaIly aware analysls of the law (or "the sociology of law")
amounts to one of the most damaging dichotomies of the socio-legal
field. At the same time this question is difficult to debate criticaIly
because, in the short term, the academic lawyers who are making their
careers in law gain little in terms of the "scientific stakes" of their
field by making a serious commitment to social sciences. So, in a
recent piece, we find Phil Thomas and SaIly Wheeler celebrating the
fact that "while sociology of the law is most marginal to curriculums
in both Sociology and Law and has little foothold in the academic
research community, socio-legal studies has gone from strength to
strength".7 The socio-legal studies that Wheeler and Thomas are
celebrating is, of course, not an altemative to, but a branch of legal
studies, that "inserts into the world of academic lawyers a review of
values and standards that will aIlow academic legal studies to develop
and change". 1 do in principie share the goals that Wheeler and
Thomas are setting out for socio-legal studies. Yet 1 do not see how an
effective, lasting and fundamental review of values and standards can
be brought about without full theoretical engagement and commitment
to advancing social scientifically aware socio-legal research.
The "juristic" approach, as 1 shaIl caIl it here for lack of better
concept, distinguishes itself from the more sociologicaIly committed
studies of law by giving precedence to the practical insider attitudes,
conceptions and experiences of law and legal institutions at the
expense of other forms of legal experience or knowledge (such as

7 Sally Wheeler and Phil Thomas, "Socio-Legal Studies" in David J.

Hayton (ed.) Law's Future(s) (Oxford, Hart Publishing, 2002) at 274.

50

Merging Law and Sociology

those of the outside observers or outside participants).8 According to

this internal viewpoint, law is a pragmatic tool, primarily concerned
with providing ad hoc and instrumental knowledge which can
contribute to the resolution of legal problems. 9 A sociology of law,
which is developed under the influence ofthe juristic paradigm, would
understandably run the risk of remaining a theoretically eclectic
instrument of research that is an auxiliary to legal studies and polity.IO
Furthermore, when the concerns of legal studies develop into a
paradigmatic basis for the sociology of law, the sociological studies of
law also run the risk of becoming "colonised" by law and legal
studies. Under such "colonisation", the legal community explicitIy or
implicitIy determine which questions are worth investigating and
which answers are relevant. Hence, choosing legal studies as a point
of reference-or a basis for constructing an academic identity for the
sociology of law---eannot be the most fruitful strategy for promoting
the intellectual, disciplinary and academic interests of the sociology of
law.
8 Roger CotterrelI compares the first orientation, which he calIs
"sociology of law", with "contextualism", which requires "particular legal
subjects-as defined by lawyers-to be studied with a broad awareness of
social consequences and social origins of the law". See Roger CotterrelI,
Law's Community: Legal Theory in Sociological Perspective (Oxford,
Clarendon Press, 1995) at 76.
9 Cf. Max Travers, "Putting Sociology Back into the Sociology of Law"
in (1993) 20 Journal 01 Law and Society 434-51 at 443, Vilhelm Aubert,
lnledning titl riittssociologi (Stockholm, AWE/GEBERS, 1980) and Julius
Stone, Law and the Social Sciences: The Second HalfCentury (University of
Minneapolis, 1966) at 5.
10 For examples of definitions of sociology of law as an auxiliary to law
see Brit-Mari Persson-B1egvald (ed.) Contributions to the Sociology 01 Law
(Copenhagen, Munksgaard, 1966) at 2; Vilhelm Aubert, Sociology 01 Law
(London, Penguin, 1969) at 10, Hakan Hydn, "Sociology of Law in
Scandinavia" in (1986) 13 Journal 01 Law and Society at 131-43, and Jorgen
Dalberg-Larsen, "Sociology of Law: A Scandinavian Perspective" in Henrik
Garlik Jensen and Torben Agersnap (eds.) Crime. Law and Justice in
Greenland (Copenhagen: New Social Science Monographs, 1996) at 27. For
examples from the English socio-legal studies movement see Philip A.
Thomas (ed.) Socio-Legal Studies (Aldershot, Dartmouth, 1997).

The lnside and Outside 01Law

51

According to John F. Manzo who approaches the sociology of law

from the standpoint of ethnomethodology, which is a rather neglected
perspective within the sociology of law, the juristic perspective
dominates the field. Manzo argues that "whether we speak of
positivist, realist, critical, feminist, or other perspectives, current
sociolegal research is consistentIy defined by principIes that are
contained in the law, and the ideology surrounding legal practice".ll
The sociology of law, he then adds, is "informed by priorities that
exclude and preclude the study of legal actors' activities in their own
terms, without reference to larger sociological questions and without
prioritising legal standards of conduct",12 It could be argued, of
course, that Manzo exaggerates the dominance of the juristic
perspective and there is an increasing awareness and interest in the
agency. However, a brief look at recent publications within the field
leaves little doubt as to the continued prevalence of the juristic
paradigm. An increasing number of socio-legal scholars might very
well be aware of the need to describe how the law is understood,
experienced, used, and reproduced by ordinary citizens and in the
course their everyday activities, but this awareness does not translate
into the general direction adopted by the bulk of socio-legal research.
No matter how we view the field, the number of actor-based
examinations of law and legal phenomena, which give priority to, and
depart from, an everyday perspective of ordinary people on law, are
considerably smaller than macro or structural studies. This neglect of
the actors' perspective, understanding, and experience of legal
phenomena (Le. the bottom-up perspective), in favour of stressing a
macro or structural understanding of the law and the legal system, a
tendency inherent in the juristic approach, clearly causes a theoretical

11 John F. Manzo, "Ethnomethodology, Conversation Analysis, and the

Sociology of Law" in Max Travers and John F. Manzo (eds.) Law in Action
(Aldershot, Ashgate, 1997) at 4.
12 Manzo, ibid., at 5.

52

Merging Law and Sociology

imbalance within the sociology of law which is detrimental to its

development as a social scientific tradition. 13
The sociological studies of law-which are methodologically and
theoretically informed and structured by various schools within
mainstream sociology---can also be criticised for their various
shortcomings. Sorne of these studies tend, for example, to confine
themselves to the social consequences of legal action and regulation,
while ignoring the internal mechanism of the legal system,14 Many
sociologists who endeavour to study the law tend to observe legal
processes and structures from the outside. Although their "distance"
from the taken-for-granted values, beliefs and patterns of practices
within the legal system allows them to raise questions that would not
be raised by legal scholars (who are part of the reproduction of the
authority of the law), it nonetheless limits their perspective in one
important respect. By the virtue of their position, they tend to focus on
law's interaction with its societal milieu. 15 This also implies that the
sociologist loses sight of law's view from within, .e. the
understanding of the law in terms of the legal experiences of those
engaged in law's processes and how the legal system operates
internally. This is not to say that the sociologist cannot access legal
reasoning or the lawyer's understanding of the law, or grasp the
internal operations of the legal system, but only serves to emphasise
that he/she cannot do that by observing legal behaviour, processes and

13 Among the factors which cause and sustain this imbalance are the
macro character of the legal system and what Sarat and Silbey described as
"the puB of the policy audience". See Austin Sarat and Susan Silbey, "The
PuB ofthe Policy Audience" in (1988) 10 Law and Policy 98-166.
14 Cf. A. Bancaud, "Sociologen och ratten eller Frestelsen att skanda" in
(1987) 4 Tidskriji jOr rdttssoci%gi 119-34.
15 There are, of course, sociologists who have successfuBy transcended
the limitations of the outsider's perspective. For a classical example see
Doreen McBamet's study of the operation of criminal courts. Such exceptions
demonstrate that the sociological limits in this regard are not those of
sociology, but a function of the role adopted by sorne sociologists of law.
Doreen 1. McBamet, Conviction: Law, the State and the Construction 01
Justice (London, MacmiBan, 1981).

The Inside and Outside ofLaw

53

structures exclusively from the outside. Thus, it is understood that the

sociologist who studies law from the outside (and a large number of
sociological studies of law be long to this category) is expected to try
to avoid making comments on matters defined by lawyers as technical
legal issues, which are only visible to initiated insiders.
One important point is worth re-emphasising here. As 1 pointed out
in the introduction the notions of the "inside" and "outside" of law are
to be regarded as ideal typical concepts capturing two extreme
positions which are otherwise better described as "experience-near"
and "experience-distant" in relation to the law and its institutions.
While the former distinction indicates two extreme positions the latter
indicates the degree of involvement with (or in) law's practices and
institutions. What we need to keep in mind is that there is nothing
pennanentIy set or irnmutable about the form, boundaries or content
of the law. Law and all its manifestations are constantIy in a state of
flux. Thus, the application of the inside/outside of law is used here not
to describe how the law is de facto constructed, but to forcefully
demonstrate the dilemma of socio logical studies of the law.

2. Examples
Let us expand and c1ariry this point using three examples of
sociological studies of law from the outside. The first example
concerns a sociological examination of how law is affected by
information technology. The second example is part of Donald
Black's sociological theory of law. These two examples are chosen
because they represent empirically grounded and sociologically
informed socio-legal research and theorising. Finally, the third
example presents a part of feminist studies concerning the status of
women within the legal profession.

The impact ofIT on legal practice

During 1995, in a study of the impact of information technology on
legal practice in the U.K., David S. Wall and Jennifer Johnstone sent
out questionnaires to each of the 1,273 lawyers who practised in