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8

SOCIOLOGICAL JURISPRUDENCE AND THE SOCIOLOGY OF


LAW

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

Sociological Jurisprudence and the Sociology of Law

Comte and Sociology

importance of harnessing the techniques of the social sciences, as well as


the knowledge culled from sociological research, towards the erection of
a more effective science of law. Lastly, there is an abiding concern with
social justice, though in what this consists, and how it is to be attained
views differ. Does law, for example, function as an instrument
particular interests in some neutral way, as Pound thought, or is it the
result of the operation of interests, as contemporary conflict jurists argue?6 Upon the answer to this question much depends, including whether
law can be used for the purposes of social engineering and, if so, to what
effect.
It depends upon how one defines sociological jurisprudence as to how
far back it goes. Hume, who provides one of the intellectual foundations
of positivism, wrote of law as a developing social institution which owed
its origin not to man's nature but to social convention. 7 Vico too rejected
the fixed concept of human nature which had characterised social
thought since Aristotle. In The New Science he argued that human society
was historical, social institutions and human relationships are the pro8
duct of action. Montesquieu argued that law was the product of numerous factors, for example local manners, custom, physical
environment: a good law, he maintained, conformed to the spirit of society.9 The historical school of jurisprudence emphasised the dynamics of
legal development and showed how law was closely related to its social
1O
context. All of these have contributed to the growth of sociological
jurisprudence. More significant, however, are Comte and the great sociologists, Weber and Durkheim. The contribution of Marx ll must also
not be overlooked.

nineteenth century on science as the royal road to progress. <;::omte urged


that there are four means of social investigation, namely, observation,
experiment, comparison, and the historical method; and that it is the last
which is specific to sociology. The data of this latter method were to be
taken from observation and tested against the known laws of human
nature. 13 This involved some advance on Bentham who confined his attention to the laws of human nature as a foundation of social science to
the virtual neglect of history. John Stuart Mill at any rate so regarded it,
and considered that, by means of this method, empirical generalisations
could attain the status of laws and sociology thus become a science.
Unfortunately, Comte did not remain true to his own scientific approach, and in his later years deserted the empirical method for sweeping
a priori affirmations, such as his view that there were invariable natural
laws operating in the field of social activity. He laid down that mankind
inevitably passes through three stages, viz., the theological (where phenomena are explained in terms of superior beings), the metaphysical
(where abstract entities like nature are held responsible) and the scientific
or positive (at which stage man is content to observe phenomena). Such
was his final dogmatism that he was led to formulate an authoritarian
concept of the character of "positive society", and also to put forward a
new Religion of Humanity, with an elaborate ritual aimed at achieving an
effective means of social cohesion.

COMTE AND SOCIOLOGY

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

LAISSEZ FAIRE AND HERBERT SPENCER

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

According to Comte: "No real observation is possible except in as far as it is first


directed, and finally interpreted, by some theory". He saw observation and laws as
"indispensably connected" (The Positive Philosophy (English ed., 1896), vol. II, p. 243).
On Comte's relation with 19th century statistics and social surveys, P. Halfpenny, Positivism and Sociology (1982) is useful.
Hence the state existed only to further individual freedom: Comte, on the other hand,
favoured a highly collectivist programme.
Cfpost,903.

662

Sociological Jurisprudence and the Sociology of Law

Max Weber (1864-1920)

achieve in altering the process of social evolution. Spencer failed to


perceive the direction in which society was moving. 16 Spencer's OPposi_
tion to social engineering is grounded in his concept of society. He defined this as a "thing" which grows, evolving from small "aggregations"
so simple "in structure as to be considered structureless" in which there is
"scarcely any mutual dependence of parts", to complex, differentiated
structures in which the separate parts acquire mutual and functional
dependence: society is a structure characterised by co-operation between
parts and whole. The disturbance of this consensus undermines the
equilibrium of the whole system. An example would be government interference with the workings of social or economic life.

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)

Jhering, by contrast with Bentham, placed great emphasis on the function


of law as an instrument for serving the needs of human society. I? In
society there is an inevitable conflict between social interests and each
individual's selfish interests. To reconcile this conflict the state employs
both the method of reward, by enabling economic wants to be satisfied,
and the method of coercion. There may be unorganised coercion,18 as in
the case of social conventions or etiquette, but law is specifically that
form of coercion which is organised by the state. Jhering did not deny the
existence of altruistic impulses, but recognised that these would not
suffice without the coercive form of social control provided by law. The
success of the legal process was to be measured by the degree to which it
achieved a proper balance between competing social and individual interests. Jhering, however, gave very little indication of a scale of values
with which to achieve this balance.

MAX WEBER (1864-1920)

Further impetus was given to exploring the sociological foundations of


law by Weber, Durkheim and Ehrlich. Weber was the first to try to

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

sidered a leading characteristic of modern legal systems. 24


Weber is concerned to discover how and why this process of rationa_
lisation developed. Rational law is a product of the rationalism of
Western culture. But what is this? Weber's own analysis is far from
precise but in
he attributes the growth of "occidental rationali_
sation of law,,2) to developing bourgeois interests and the interests of
absolutist states. But he rejects any suggestion that there is any specifically economic causation. 26 He also rejected the view that the reception of
Roman law had played any part in the development of capitalism. In
Weber's view, the most significant development was the growth of bureaucracy. Only this "has established the foundation for the administration of a rational law conceptually systematised".27 Other factors also
played a part. Weber stresses the contribution of legal professionals.
Thus, for example, he saw English lawyers with a vested interest in retaining archaic formalistic features as the major impediment to rationalisation. England caused Weber acute problems. 28
Another causal factor is the significance attached to natural law. Weber saw natural law in its revolutionary, rather than reactionary, guise. 29
Its role was to legitimate legal change and as such is a necessary factor in
the rationalisation of law. It was, Weber thought, the absence of natural
law which impeded the progress to rationalisation of both Chinese and
Judaic law. 30
Weber's discussion of the relationship between law and capitalism is
interesting both in its own right and in relation to Marxism. Unlike
Marx, Weber was not prepared to explain law as in any way "de. d" b y economIc
. iorces. 31 Law was relatively
1
termme
Though influenced by economic forces, it also influenced economic and
other processes in society. "Economic situations", Weber wrote, "do not
j'

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

Max Weber (1864-1920)

Sociological Jurisprudence and the Sociology of Lmv

665

automatically give birth to new legal forms; they merely


the
opportunity for the spread of legal technique. if it is inv.ented" Though
law is not determined by economic forces, It IS perceIved by Weber as
being "crucially related,,34 to them. For example, Weber showed how
rational capitalism needed not just a, !echnical means of pr?duction but also a "calculable legal
The modern capItalIst
enterprise "rests primarily on calculation and presupposes a legal an,d
administrative system, whose functioning can be rationally predicted" :,6
England was an enigma for Weber. It provided him with some proof of
the non-determinant role of economic factors in the development of law
(it was after all the first country to produce modern capitalism).
other hand it did so with a legal system which fell far short of attammg
formal rationality. How then is the English example to be explained: as
an exception? If so, how is the exception to be explained? More
the question must be raised as to whether failure. to
111to
aeneral thesis casts doubts on the validity of the Webenan theSIS. Weber s
on English law and institutions are interesting in themselves.
He saw our methods of proof as "irrational". This applied to jury trial,
the svstem of lay magistracy, the adversary system as well as the system
of p:ecedent. He also saw precedent as having undergone a profound
change. A process of internal rationalisation had taken place. From
"empirical justice" (or substantive irrationality) the system has moved
(Weber does not explain how) to one where rational grounds
to be
expected and general rules and principles develop. The result IS a system
based on general and abstract rules. So great has the change become that
critics of the common law system, such as the American Realists,3? could
denigrate as formalism or a jurisprudence of concepts the belief that. the
system was logically complete, gapless and ready to apply to any gIven
factual situation.
England, to quote Weber, "achieved capitalistic supremacy .. , not
because of but rather in spite of its judicial system" .38 If this seems to cast
doubt on Weber's general theory of the inter-relationship between law
and capitalism. he seeks to turn "this apparent contradiction to the advantage of his general theoretical position".39 What would be fatal to a
uni-c;usal theory is grist to Weber's multi-causal mill of history. It enables him to argue that the relationship he sets up between capitalism and
rational law is "but one example and at the same time to be prepared to
33
34
35
36
37
38

39

Law and Economy, p. 131.


Per A. Hunt, The Sociological Movement in Law (1978), p. 120.
The Protestant Ethic and the Spirit of Capitalism (1930), p. 25.
Economy and Societ)), p. 1394.
Post, Chap. 9.
Law and Economy, p. 231. Cfalso Renner, post, 979, 1023. On Weber and the "England
problem" see A. Kronman, Max Weber (1983), pp. 120 24. Ewing ((1987) 21 Law and
Soc. Rev. 487) rejects the idea of the "England problem". She argues that Weber actually
rights as the features of modern law that directly
identified formal justice and
facilitated the
L.J. 3.

Emile Durkheim (1858-1917)

Sociological Jurisprudence and the Sociology of Law

666

explain empirical departures" from this "posited general relationsh' by


to specIfic conjunctures of other cau;al variables" 40 -Xh
st.aIts as a t?reat to Weber's overall position ends as a streno-theni
at
hIS pluralIstIc, multi-variate analysis. It should also be add d
of
was only ?efining the ideal-type of capitalistic law.
e
at e er
IS the most influential of sociologists. But how well d h'
tegones serve
who study law and society today? One
IS
concerns legal socIOlogists is the limits of the law? The' p t mkthat
whv
f d' . . .
41
.
V wan to now
an 1- IscnmlllatIOn law or rent control leg'sl t' 42
I
cessful th th'
1 a IOn
are ess suc
. an elr proposers intend. Does Weber's theorv throw anv '0- ?n
He would suggest that laws would fail where th; legal s
s
msufficIent!y
or legal reasoning insufficientlv
problems lIke racIal dIscrimination be tackled b .
.
.
n
rules? To take a second
.
y more narrowly drawn
b'
.,
example, the twentIeth-century was characterised
an
welfare state. The rules of such a system tend to b
by looseness and the emphasis is on discretion 43
IS mcap.able of embracing welfare state concepts. It 'seems Irreversi. y commItted to a model of capitalism tied to lais"ez-"'aI're
nomiCS.
1;
eco-

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

Du:kheim, the great French sociologist. is another of the major figures of


socIOlogy to have
a considerable 'interest in legal phenomena 44 H
was .one of
earlIest thinkers about the criminal process 45 : he
. on the law of contract47 and notably in The Division 0
Som Iy, deve!oped a typology of the evolution of the law whiX
pological
mfluence on subsequent sociological and anthrothe,:is that law was th.e
rod of any so,thought, reproduces the pnnclpal forms of social soli-

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

the concept of the state.


Recent opinion suggests, contrary to Durkheim's hypothesis, that repressive law diminishes in importance as we move away from modern
nation states and that it is almost totally absent in the simplest societies.
To Barnes "it is governmental action that is typically repressive". 54
Sheleff55 claims that Durkheim's use of law as an index of social organisation is justified, but only if we reverse the relationship between types
oflaw and types of solidarity. He notes that Durkheim appeals to Biblical
evidence, arguing that in the Pentateuch there are very few non-repressive
laws, and even these are not as "foreign to penal law as may appear at
first glance, for they all bear the mark of religion". 56 It is, however,
possible to see in the five books of Moses a set of religious and moral
48
49

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.

The Division of Labour in Society (1984), p. 68.


See, generally, Diamond, Primitive Law, Past and Present (1972), and S. Moore, Law as

54
55

56

serves.
Man, vol. l,pp. /68-169.
(1975) European J. Sociology XVI 29.
ibid.

668

Sociological Jurisprudence and the Sociology of Law

exhortations devoid of punitive backing plus a legal system embodying


the notion of restitution.
The evidence from early modern Europe also undermines Durkheim's
thesis. Lenman and Parker,57 while conceding that there was barbarous
punishment of certain crimes, point out that there was composition of
others..The. compositi?n system was part of the tradition of community
law whIch, m Durkhelm's terms, exalted restitutory justice. It developed
from the laws of the German tribes which invaded the Roman Empire.
"State law", on the other hand, emphasised punitive justice and was
"rooted", at least
part, in the legal system of the Empire and its

)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.

Emile Durkheim (1858-1917)

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

Sociological Jurisprudence and the Sociology of Law

conflicted with contractual solidarity. Twentieth-century development


have vindicated his ic1 eas on contract. We have seen vast inroads
freedom of contract.7:0
Thirdly, and curiously for a legal sociologist, Durkheim has little Understanding of legal processes, of how law is made, applied, enforced. Be
analyses "society" and its legal rules. He gives scant attention to the lecral
, r
.
76 h
l'
h
.
to
pi OleSSlOn, t e po Ice, t e courts. He recogmses, of course, the existence
of state officials but he sees them as carrying out collective moral sentiments. These "interpreters" are "appliers,,77: they add nothing as they
translate "social representations" into law. This enables Durkheim to
ignore questions about power, conflict of interests, the role of professions, bureaucracy and countless other questions which are central to
contemporary sociologists oflaw. 78 The importance of Durkheim c1earlv
lies rather more in opening up speculation about the relationship betweeri
law and social order than in the answers that he himself suggests.79

EUGEN EHRLICH (1862- 1 922)

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

Eugen Ehrlich (1862-1922)

671

Ivtical jurisprudence, in exploring the real foundations of leg,!l rules, their


,;
81
scope and meaning and potential development.
In heterogeneous and pluralistic societies there will invariably be more
than one living law. Ehrlich believed that the living law should rank in
order of priority the different claims and demands made upon the law by
different people. Further, the legislator or jurist, in adjusting the formal
law to match the living law, should balance these demands. He wrote that
"when the jurist is asked to draw the line between the conflicting interests
independently, he is asked by implication, to do it according to justice ...
The catch phrase about balancing of interests 82 that is so successful at the
present time is not an answer to this question, for the very question is:
What is it that gives weight to the interests that are to be balanced?
Manifestly, it is not the balancing jurist, writer or teacher, judge or legislator, but society itself ... Justice does not proceed from the individual,
but arises in society". 83
Ehrlich thus minimises the place of legislation as a formative factor in
law, and in some ways may be regarded as a Savigny denuded of Hegelian mystique. S4 But there is far more in his approach than this, for he
emphasises how law is distilled out of the interplay of social forces. That
there is much truth in this viewpoint can hardly be denied. Thus the
practices of the commercial world are often found to be embodied gradually in commercial law. Ehrlich recognised, however, that a legal system has an impetus of its own, a professional tradition which may
operate for good or ill, and accordingly stressed the need for lawyers and

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

Sociological Jurisprudence and the Sociology of Law

judges to understand the social foundations of legal rules and thereb


develop them. So, too, by insisting on the fact that law was not a
pheno:n.enon, he enabled us to attain a better grasp of those large spheres
of aCtIVIty whIch are becoming increasingly widespread in the modern
where autonomous associations apply private "legal systems" of
theIr own
independently of the ordinary legal process of the
courts, as, for ll1stance, in the case of trade or professional associations 0
trade .u.nions exercising disciplinary powers. 85 Ehrlich might be
for
to appreciate the significant influence that state law has on the
shapmg and development of living law. Associations are not completelv
to generate
living law. Their actions always take
m
.the law. . For the student of jurisprudence perhaps
EhrlIch s
faI.lmg was hIS neglect of a criterion by which legal norms
could be ?IstmgUlshed from other norms operative in social life. It was
the
Realist Felix Cohen who observed that "under Ehrlich's
termmology, law it.self merges with religion, ethical custom, morality,
decorum, tact, fashIOn and etiquette".8/
Ehrlich unduly belittled the primary role of legislation in creatine- new
law. He a!so failed to realise that a grasp of underlying social
not m Itself point the way to appropriate legislative or judicial solutIOns. The legal process may be invoked as in itself an educative factor. 88

!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

Roscoe Pound (1870-1964)

673

must be developed in relation to existing social needs, amI must not be


chary of relying upon the social sciences in studying the place of law in
society, and the means of making it most effective in action.
It is in the writings of Roscoe Pound that the most influential exposition of American sociological jurisprudence is to be encountered.

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

Sociological Jurisprudence and the Sociology of Lm""

manipulated in a variety_ of ways, if regard is to be paid to genuine and


not "phoney" interests.
How does Pound locate his interests? Social psychologists might look
for basic drives or instincts and initially, this was the approach favoured
by Pound. But the inadequacy of this method soon became apparent, for
the social psychologists themselves could reach no unanimity on what the
basic instincts were, and, further, it was clear that instinctual behaviour
could not be eliminated from its environmental source. 96 Sociologists, on
the other hand, might undertake empirical research designed to elicit the
wants of society. But this too has problems. How should the question be
phrased? Should one ask for attitudes or, in an effort to assimilate norms
of decision with "living law", should one question behaviour? or should
one ask for opinions on existing law or frame questions in such a way as
to elicit personal "injustices,,?97 And how should one weigh up expressions of wants against the practicalities of legal administration?98 There
are limits to effective legal action.
Pound's own approach was somewhat less fertile. He looks to actual
assertions of claims in a particular society, especially as manifested in
legal proceedings and legislative proposals, whether accepted or re99
jected. As to the former, however, it may be said these will depend very
much on the state of the law, and the extent to which the costs system
may discourage litigation on doubtful new points. The different way in
which the law on privacy has developed in England and in the United
States emphasises this distinction. I The failure of English law to develop
more than a rudimentary corpus of social security case-law is a further
2
example. Patterson,3 with some justice, has described Pound's catalogue
of interests as a rationalisation of the actual. It must also be said that
there are interests not only in the sense of what people want but in the
sense of what may be good for them regardless of their actual desires. A
good deal of social, and almost the whole of penal legislation, may be of
this character. 4
As to Pound's classification of interests, though this purports to be an
objective statement of those existing desires which Western society, at
For interesting analyses of the meaning of interests, see Ross. On Law and Justice (1958),
Chap. 17, and Barry, Political Argument (1965), pp. 174-186. See also the definition in
the U.S. Restatement of the Law of Torts. I.
96 Pound deferred to Dewey's advice. See, further, Dewey, Human Nature And Conduct
(1922), Pt. II, sees. V, VI.
97 Cf Barton and Mendlovitz, The Experience of Injustice as a Research Problem (1960) 13
J. Legal Educ. 24.
98 Thes; questions are suggested by a reading of Cohen, ROQson and Bates's Parental
99 Authority: The Community and the Law (1958).
See R. Pound, Jurisprudence, vol. 3, pp. 287 291.
I
See Westin, Privacy and Freedom (1967).
Seen by Reich as "the new property" ((1964) 73 Yale L.J. 778).
Jurisprudence: llden and Ideas of the Law (1953), p. 518.
4 A striking example is the Obscene Publications Act 1959 (and, similarly, the Theatres Act
1968). Obscenity can be justified "as being for the public good" if it is in the interests of
science, literature, art, etc., when it is quite clear that the majority of people would not
wish these to be advanced.
95

Roscoe Pound (1870-1964;

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

Sociological Jurisprudence and the Sociology of Law

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

Pound sees law as adjusting and reconciling conflicting interests. It is an


instrument which controls interests according to the requirements of the
social order. But there is no doubt that for Pound law represents the
consciousness of the whole society. He sees the law as some "brooding
omni-presence in the sky" II operating outside of particular interests.
Pound is describing a society which is homogenous, static and cohesive, one with shared values and traditions and a common cognition of
reality. Whatever society Pound thought he was describing, it certainly
was not the United States, nor, it may be added, can British society be
recognised
. . 12 in this model. A reading of Platt on the origins of juvenile_
JustIce, Gusfield on the temperance movement and Prohibition b
l4
Duster on drugs legislation or Nelken on the Rent Acts l5 will dispel
doubt that laws are the result of a value consensus.
The consensus model long held the stage. 16 Today, however, it may be
said that most writing in the sociology of law embraces a conflict para17 Q .

dIgm.
mnney has argued that the law consists of the interests of only

Roscoe Pound (1870-1964)

"specific segments" of the population. 18 It does not repres,ent, as Pound


alleged, a compromise of diverse interests but rather supports some at the
of others. Hills puts it thus: "the exponents of the interest-group
approach emphasise the ability of particular groups to shape the legal
svstem to serve their needs and safeguard their particular interests '"
coercion and constraint rather than the sharing of common values, are the basic organising principles in the interest-group perspective".19
The difference between the approaches is basic. Law to Pound is a
social force: to Quinney, for example, it is a social product. Even with
those laws upon which there is a considerable (if not total) agreement,
one mav wonder if even these originated in conflict and, if so, how they
became'the object of consensus subsequently. Not all killing is murder 20
and until recently husbands could not be convicted of raping their wives. 21
A difficulty with the conflict model is how to explain laws which appear
to limit the activities of powerful groups. But it may be said that such
laws (for example, factories
or anti-trust legislation) .are .inadequately and ineffectively enforced-- and that some such leglslatlOn
which at face would seem to constrain the powerful may in fact be in the
interests of the most powerful: thus pollution legislation may be in the
interests of large organisations who are thus enabled to knock out small
competitors 23 Morals legislation also causes problems for it is normally
instigated by economically weak, middle-class crusaders. 24
Whether the consensus or conflict model is the more accurate can only
be determined by empirical research. There has been a considerable
75 C h am bl'ISS on vagrancy, 26 Sch ur on
amount of this (Hall on
morals offences,27 Thompson on the "Black Act,,28 are classic examples)
and they give substantial support to the conflict model. Of cours.e, cl.ass
interests are not the only ones which influence the passage of leglslatlOn
18

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

Sociological Jurisprudence and the Sociology of Law

Sociological Jurisprudence since Pound

and the influence of professional organisations,29 and bureaucracies such


. 30 tllemse Ives Inter
.
.
as governmenta1 agencIes'
a I'za p Iay an Important
part in
the passage of legislation.
If law is the outcome of group conflict, it becomes necessary to conceptualise that conflict. Is it better described in terms of a "power elite,,31
or are there many different groups with varying amounts of power, none
of which is all-powerful?32 Sociological jurists differ on this. Quinney, for
example, once believed in pluralism 33 and now attempts to identifv a
34
ruling class elite. Other writers (Dahrendorf is a notable
prefer the more open, pluralistic model of conflict. Once again it is ultimately an empirical question of which view best fits reality.

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.

SOCIOLOGICAL JURISPRUDENCE SINCE POUND

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

Lasswell and McDougal

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

Sociological Jurisprudence and the Sociology of Law

Sociological Jurisprudence since Pound

Lasswell and McDougal reject the method of legal positivism whereby


judicial decisions are reached on the basis of authority. On the contrarv.
they argue that those should be arrived at having regard to the generally
shared legal expectations of all members of a given community.45 How is
this to be done? What is needed (we are told) is for the prescriptive
process, both legislative and judicial, to be tested by some empirical
method for determining the shared expectations of the community at
large. 46 Recourse should therefore be had to social science techniques
such as the development of "expectation indices" .47 If such expectations
are either lacking or not specifically identifiable then "supplementation"
is recommended by way of what are called "directly relevant but more
basic legal policies or goals that are generally shared in the community
and that are likely to be shared in the immediate future".48 When supplementation also fails, there remain two sorts of judicial response:
identification of common interests or a form of non-decision. 49 Among
the many uncertainties of such an ambitious and wide-ranging
gramme is the precise interrelation of the "desired events" to the ascertainment of the shared legal expectations of the community. Even if the
programme might conceivably afford a theoretical basis for a modern
legislature it seems hopelessly impractical and unrealistic as a recipe for
judicial lawmaking, even in the context of American courts, familiar with
Brandeis briefs and class actions.
the theory has been used for a stimulating plan for legal
education,)O it bristles with imponderables. The generalities of the values
may be precise enough for a political scientist (which Lasswell was), but
the lawyers' concepts, however fact-based and individualised, are apt to
be submerged under them. Further, they are not ranked in any order and
no provision is made for a likely clash of values. Nor are they detailed
enough to be any positive guidance to a judge or legislator. It is not,
therefore, surprising that the Lasswell-McDougal model has not had
much impact on law or lawyers. The feeling is, and rightly, that it has all
been said before and in a more legally relevant way-by Pound. So
Kalven, a leading sociologist of law, has written that "the prospectus
strategy does not work", that "something more concrete, something
more specific, something more puzzling than the grand question of how
American democracy is performing is needed to move one to research".51
It can be argued that the law, science and policy approach of Lasswell

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

Per J. Herget, American Jurisprudence 1870-1970 (1990), p. 225.


ibid.
ibid., p. 226.
See Social Dimensions or Law and Justice (1960); (1966) I Israel L.R. 173.
I Israel L.R. 173, 176-177 cf. Social Dimensions, pp. 26--27.
As to which see A.W. Gouldner, The Coming Crisis or Western Sociology (1970), Chap. 5
and M. Lesnoff, The Structure of Social Science (1974).
See his discussion of Parsons in' Social Dimension, pp. 13-28 and also in Law and The
Social Sciences (1966), pp. 29-49. See also P.S. Cohen, Modern Social Theory (1972), pp.
96 et seq.
Law and the Social Sciences, P, 27.
"The Law and Social Control" in Evan, Law and Sociology (1962), pp.

682

Sociological Jurisprudence and the Sociology of LalV

Towards a Sociology of Law

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.

The Nforalitv of'Law. 64 Fuller requires only certain formal procedural


it is not clear whether Selznick would so limit himself or
whether he would require some minimum substantive standards, rather
like Hart's minimum content of natural law. 65 Rejecting cultural relativism he asserts that there are universal values: "such motivating forces
as the search for respect including self-respect, for affection, and for
surcease of anxiety; such potentialities as the union of sex and love, the
enlargement of social insight and understanding, reason and aesthetic
creativity".66 He claims that "if there is to be a legal order, it must serve
the proper ends of man". 67 Selznick, unlike Fuller does not cast doubt on
the validity of a legal order which falls short in this way, but on its
"maturity".
There are a number of difficulties with this thesis. There are empirical
problems: how does one determine a "universal value"? Are those he cites
universal?68 It may be doubted. Further, it must not be forgotten that
greed, lust, aggressiveness are also motivating forces and, unfortunately,
no less (or may be more) universa1. 69
In Law, Society and Industrial Justice Selznick seeks to show that legal
orders are not unique to the political state. He sees law as a generic
element in the structure of many different groups in society. Law, he
claims, is "endemic in all institutions that rely for social control on formal authority and rule making".7o So the normative structure of many
private associations, churches, large corporations, trade unions, universities, can be described as law. What distinguishes law from social
control is not the coercion involved but "the invocation of authority".71
Selznick's ideas involve a welding together of ideas taken from Weber
and Ehrlich 72 on the one hand and Hart and Fuller on the other. Law,
Societv and Industrial Justice can be said to be one of the first examples of
the "third stage" of the sociology of law. 73

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

TOWARDS A SOCIOLOGY OF LAW

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.

Sociological Jurisprudence and the Sociology of Law

Towards a Sociology of Law

known as socio-Iegal studies took its place. Advocates of socio-Iegal


studies emphasise the importance of placing law in its social context, of
using social-scientific research methods, of recognising that many traditional jurisprudential questions are empirical in nature and not just
conceptuart 4 A pervasive theme is the gap between legal rules and actually lived social norms. 75 But this gap, often said to be between "law in
the books" and "law in action", was too often only described and too
rarely analysed. For Cotterrell, socio-Iegal studies was a "transition
phase".76 It had considerable impact: on the law, on legal education and
on law publishing. It helped focus greater attention on concepts like
discretion 77, institutions such as tribunals 78, and different techniques of
decision-making and conflict resolution, such as alternative dispute resolution. 79
The shortcomings of socio-Iegal studies were identified by Lawrence
Friedman. He wrote:

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

Cf J.Gibbs (1968) 2 Law and Soc. Rev. 429


A point made strongly by K. Llewellyn in the "points of departure" of the Realist
movement (see post, 831).
Law's Community (1995), p. 296.
See A. K. Bottomley, Decisions in The Penal Process (1973); A. Pratt (1999) 8 Soc. &
Legal Studies 199, N. Lacey in (ed) K. Hawkins, The Uses of Discretion (1992).
See T. Prosser (1977) 4 Br. J. of Law and Soc. 39; N. Wikeley (2000) 63 MLR 475.
See W. Twining (1993) 56 MLR 380; S. Silbey and A. Sarat (1989) 66 Denver University
Law Review 437; J. Esser (1989) 66 Denver University Law Review 499; G. Douglas et al
(2000) 63 MLR 177.
(1986) 38 Stanford Law Review 763, 779.
See also A. Hunt (1981) 8 Br. J of Law & Soc 47.
See R. Cottrrell, post, 744. See also Hans and Vidmar, and Constable (1992) 16 Law and
Social Inquiry 323, 353.
See D. Black, The Behavior of Law (1976) and post, 686. But for the relationship of
Black's work to Durkheim
Cotterrell, op cit, n. 3, ch. 9. A defence is M. P. Baumgartner in (ed) D. Patterson, A comparison to Philosophy of Law and Legal Theory (1996)
ch.28.

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

Much of the focus in contemporary writing is on what is involved in


this "understanding". Should legal definitions be transformed into sociological categories or sociological insights into legal concepts? Can the
two approaches be combined? If the law has a limited sociological understanding of the world, does sociology have anything to offer the jurist
to enable him better to appreciate it? As Nelken points out, there are
dangers. 85 He, following Sarat and Silbey,86 notes the concern of sociologists of law that they will be used ("the pull of the policy audience"),
compromising academic social science and blunting the edge of political
critique. Nelken's own concern, as will be seen in an extract from a recent
paper of his,87 is that "the introduction of different styles of reasoning
can have ill effects for legal practice by misunderstanding and thus
threatening the integrity of legal processes or the values they embody".88
But for Cotterrell the sociology of law is a "transdisciplinary enterprise
and aspiration to broaden understanding of law as a social phenomenon".89 He emphasises the centrality of the sociology of law for legal
education and legal practice: "the methodology of sociological understanding of legal ideas is the deliberate extension in carefully specified
directions of the diverse ways in which legal participants themselves think
about the social world in legal terms".90 Sociology, Cotterrell argues,
offers insights into legal thinking and can transform legal ideas by reinterpreting them. He uses 91 the example of private purpose trusts.
Cotterrell is aware that this could lead to sociology recreating law in its
own image. On the contrary, he argues, when seen in this way it ceases to
as "the invocation of a competing academic discipline with the
aim of colonizing law".92 It is rather "a necessary means of broadening
legal understanding-the systematic and empirical understanding of a
certain aspect of social life which is recognised as 'legal' ".93
84 (1976) 10 Law and Soc. Rev 547, 553.
85
86
87
S8

89
90
91
92

93

(1988) 25 Journal of Law and Soc. 407, 408.


(1988) 10 Law and Policy 97.
ibid, and post 758.
ibid. See also D. Nelken "A Just Measure of Science" in (eds) M. Freeman and H. Reece,
Science In Court (1998), p. II.
(1998) 25 Journal of Law and Soc. 171, 187 (and see post, 747).
ibid p. 190.
:::iee (1993) 46 Current Legal Problems 75.
Op cit, n. 16, p. 191.
ibid.

686

Sociological Jurisprudence and the Sociology of Law

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.

Towards a Sociology of Law

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

Sociological Justice (1989).


ibid., pp, 19-22.
Examples are 1. Brownlee (1998) 25 J. of Law and Soc. 313 (on criminal justice legislation); M, Lindsay (1998) 23 Law and Soc Inquiry 541 (on eugenics legislation); C. Augst
(2000) 9 Soc. and Legal Studies 205 (embryo protection and "risk").
Z, Bankowski and G, Mungham.
Images of
LaH' (1976),
.
. .
Per Baumgartner, op. cll., n. 83, p. 413,
ibid,
ibid.
Op, cit., n. 7, pp. 21-22.
Realistic Socio-Legal: Pragmatism and A Social Theory of LaH' (1997).
In the context of an emphasis on anti-foundationalism associated with critical legal
studies and postmodernism.
Tamanaha discusses this in Chap, 2.
See op. cit., n, 41, Chap. 3.
ibid., pp.188--191.

688

Sociological Jurisprudence and the Sociology of Law

Towards a Sociology of Law

from within jurisprudence,2o Tamanaha insists that law should not be


defined in ways that assume sociological connections but should be
subject to investigation and proof. 2l Nonnative beliefs, such as that law is
the central force in the maintenance of social order and social control is
the central activity of law, have, he says, "masqueraded as descriptions of
law, even within social scientific studies which have prided themselves on
being purely descriptive".22
In a strong riposte to standard conceptual jurisprudence he expresses
the view that:

law".32 He is concerned that the central case approach to tl1e concept of


law fits,and was the product of, the ascendancy of state law that accompanied the rise of tl1e state. His alternative conceptualisation of law
is, he believes, better able to account for the proliferation of different
kinds of law 33 than the traditional monotypical view of the concept of
,,"14
Iaw.'
But how is one to evaluate whether one concept of law is better than
another? Tamanaha offers the following evaluative criteria:
"First, the concept must be coherent, or analytically ... sound, in the sense
that, for example, it should not contain internal contradictions, or have gaps in
crucial spots. Second, the concept must be consistent with, or 'fit', or be adequate to, the reality, phenomenon, or idea it purports to represent, describe, or
define.... Third. the concept must have a use value in the sense that it will
enhance our und"erstanding or help us achieve our objectives. d5

"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

Sociological Jurisprudence and the Sociology of Law

Unger and the Development of lV! odern Law

Does then the "realistic" aspect of Tamanaha's project depend upon


the pragmatist theory of truth? It would seem SO.42 But for Tamanaha
there is more to pragmatism than just what works. "What works" is part
of what is involved. However, and here he quotes Putnam, "the model is
a group of inquirers trying to produce good ideas and trying to test them
to see which ones have value".43 There is thus a community of investigators. There is also the material context or environment (including
other persons). This is where "the strong strain of realism in pragmatist
thought emerges.... The 'notion of reality independent of either of us....
lie at the base of the pragmatist definition of the truth. With some such
reality any statement, in order to be counted true, must agree".44
As far as criteria of usefulness are concerned, Tamanaha insists this
cannot be answered in abstract or general terms: it is a function of the
particular activity at hand. Where the activity is the social scientific study
of legal phenomena the criteria include:

those in Hart's central case, for example) deal with


So long as
it is recognised that analytical jurisprudence is not making empirical
claims.

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

UNGER AND THE DEVELOPMENT OF MODERN LAW

A modern text in the tradition of Weber and Durkheim is Unger's Law in


Modern Society. He claims that "each society reveals through its law the
innermost secrets of the manner in which it holds men together".5o He
distinguishes three types of law: customary law ("any recurring mode of
interaction among individuals and groups, together with the more or less
explicit acknowledgement by these groups and individuals that such
patterns of interaction produce reciprocal expectations of conduct that
ought to be satisfied,,);51 bureaucratic or regulatory law ("a law deliberately imposed by government rather than spontaneously produced by
society"),52 and the legal order or legal system Ccommitted to being
general and autonomous as well as public and positive,,).53
Unger describes the processes which have led to changes from customary to bureaucratic law and from this to a legal order and eventually
will lead to, what he calls, a postliberal legal order. 54 Changes in a society's legal system are intimately related to changes both in its organisation and consciousness. Neither material 55 nor ideal 56 explanations are
given priority.
The "legal order" is to be found in modern Western liberal societies.
For it to exist no group must occupy a permanently dominant position or
have an inherent right to govern. A second major condition for the
emergence of a legal order is "a widespread belief in what might loosely
be called natural law" .57 Group pluralism and the belief in higher law,
justified by a transcendent religion combine to produce a legal order and
"turn men's minds toward the rule of law ideal".58 Unger develops this
thesis through a comparison of modern Western legal history and the
experience of Ancient Chinese culture and other civilisations including
that of Greece, Rome, ancient India, Islam and Judaism. He shows how,
by his criteria, Chinese society never succeeded in achieving a legal order. 59 The Jewish halakhah, he argues, seems to have come closer to a
leg'al order than any other body of sacred law. 60
49
50
51

52
53

42

Tamanaha concedes this (op cit) n. 52, p. 292.

54

43

Pragmatism: An Open Question (1995) p. 71.


Op cit n. 52, pp 294-295, quoting W. James, Pragmatism and the Meaning a/Truth (1975)
p.283.
Op cit n. 52, p. 297.

55

One of Tamanaha's best chapters is on the internal/external distinction, throwing light on


a central problem in contemporary analytical jurisprudence (see ch. 6).
See T. Tyler, Why People Obey The Law (1990).
See R. Ellickson, Order Without Law (1991).

58

44

45
46

47
48

691

)0

5?

60

See B. Tamanaha, Understanding Law InllIicronesia (1993).


Law in lv10dem Societv, p. 47.
ibid., p. 49.

ibid., p. 51. cf Weber, anre, 663.

ibid., p. 52..
ibid., pp. 193 et seq.

As with Marxist explanations.


As in natural law, ante, Chap. 3.
Op. cit., p. 76. But natural law surely was dominant rather in earlier stages of Western
culture.
ibid., p. 83.
ibid., pp. 86100.
ihid., p. 119. Halakhah is Jewish religious law and consists of the five books of Moses,
prophetic injunctions,
of the rabbis, as well as custom.

Sociological Jurisprudence and the Sociology of Lent

Habermas and the Centrality of Law

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

HABERMAS AND THE CENTRALITY OF LAW

Habermas's Between Facts and Norms 69 covers so much ground of legal


and political theory that it is impossible to do it justice here. 70 Rather
than attempt to extract from the book I include a recent article of
Habermas's in which he summarises his major contributions to legal
theory.71
The permanent tension in legal thinking between legal sociology and a
philosophy of law (or justice) is captured by Habermas in the title "between facts and norms". The tension is one between facticity and validity.72 As Cotterrell explains this:
"Law's facticity is its character as a functioning system, ultimately coercively
guaranteed. To understand this facticity is to understand social or political
power working through law. Law's validity, however, ... is a matter of its
normative character, its nature as a coherent system of meaning, as prescriptive
ideas and values. Validity lies ultimately in law's capacity to make claims
supported by reason, in a discourse that aims at and depends on agreement
between citizens."73

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

Published in English translation in 1996. Literature on Habermas is enormous: S. White


(ed.). The Cambridge Companion To Habermas (1995) is a useful source.
(1999) 76 Denver University Law Review contains a colloquium in which aspects of
Habermas's project are assessed. See also T. Campbell (1998) 51 CLP 65. 87-92. R.
Cotterrell (1998) 51 CLP 367.371-375. W. Forbath (1998) 23 Law & Soc. Inq. 969.
Post. 793.
Op cit. n. 69, p. 90.
Op cit, n. 70, p. 371. And see Habermas, op cit, n. 69, pp. 14. 29-30.
Habermas quotes from RalfDreler, Recht-Moral-Ideologie (1981) p. 198.
See Cotterrell, op CIt. n' 1, refernng to Weber, ante, 662 and citing A. Hyde (1983)
WIsconSIn L. Rev 379 and C. McEwan and R. J. Maiman (1986) 8 Law and Policy 257.
See also T. Tyler, Why People Obey The Law (1990).
Ante, 343.

Sociological Jurisprudence and the Sociology of Law

Habermas and the Centrality of Law

ticity "have parted company as incompatible".77 What is needed is "an


analysis equally tailored to the normative reconstruction and the empirical disenchantment of the legal system" 78 (as Cotterrell puts it, "to
law as ideal and reality,,79).
Habermas believes - surely incorrectly-that sociology has "devalued,,80 law, that it describes law in language that "neither seeks nor gains
an entry into the intuitive knowledge of [legal] participants" .81 Luhmann's "systems theory,,82 is said to have gone the farthest along this
axis-and that may be so. But Habermas's comment underestimates both
classical legal sociology (Weber,83 Durkheim,84 Ehrlich 85 ) and contemporary thinkers such as Cotterrell,86 Nelken 87 and Tamanaha. 88
Cotterrell senses that it may be that Habermas "too readily assumes that
legal sociology's concern is to emphasize law's facticity as governmental
direction and not also to consider its validity-the conditions of its existence as a structure of reason and principle".89
Rather it may be thought that Habermas overplays the centrality of
law to the organisation of today's complex societies. He imbues law with,
what Tamanaha has called, an "heroic" quality.9o How, Habermas asks

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

And he sees law as "what is left from a crumbled cement of society".92


But law too is deprived of the metaphysical and religious support it
earlier enjoyed and must find a new basis for legitimation. This is found
in, what he calls, the discourse principle viz, "only those [legal] norms are
valid to which all persons possibly affected would agree as participants in
rational discourses".93 Further, "the only law that counts as legitimate is
one that could be rationally accepted by all citizens in a discursive process
of opinion and will-formation" 94
77

78
79
80
81

83
84
85
86
87

BY

90
91

92
93
94

Op cit. n. 69, p. 26.


Ibid. p. 66.
Op cit, n. 70, p. 373.
Op cit. n. 69. p. 48.
ibid.

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).

1 As Ehrlich argued (see


See A. Podgorecki
and Opinion About Lwl' (1973).
95

96

S'ociological Jurisprudence and the Sociology oj" Law

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

". .. on institutionalisation of corresponding procedures and conditions of


communication, as well as the interplay of institutionalized deliberative processes with informally developed public opinions,,9
In such a context law becomes the medium through which
"the structures of mutual recognition already familiar from simple interactions
and quasi-natural solidarities can be transmitted, in an abstract but binding
form, to the complex and increasingly anonymous spheres of a functionally
differentiated society". 10
Rather like Fuller,l1 Habermas assumes that through proper decisionmaking processes good outcomes will emerge. These outcomes should
appeal to those least advantaged. 12 Any form of legitimation, Habermas
argues, must appeal to "a posttraditional moral consciousness of citizens
who are no longer disposed to follow commands, except for good reasons"Y However, as Tamanaha points out the question is "whether the
populace will agree with Habermas that legal norms are worthy of being
followed solely because they are consistent with the discourse principle,
4

6
7

10
II
12

13

See the sentence quoted at n. 93.


Postmetaphysical Thinking: Philosophical Essays (1992), p. 47.
See D. Dyzenhaus (1996) 46 Univ. of Toronto L.J. 129, 175.
Op. cit., n. 90, p. 1000.
E.g. J. Bohman (1994) 28 Law and Soc. Rev. 897, 921.
"Despite Habermas's impeccable critical pedigree, it is difficult to read his argument
without sliding to the conclusion that our systems of liberal democracies and the rule of
law, despite their flaws, for the most part are deserving of a substantial claim to legitimacy" (per Tamanaha, op. cit., n. 90, p. 1001).
Op. cit., n. 69, p. 298.
ibid., p. 318.
The j\Jorality of Law, discussed ante.
Thus, in relation to women Habermas notes that liberal rights can only "empower women to shape their own lives autonomously" if democratic structures "also facilitate
equal participation in the practice of civic self-determination, because only women
themselves can clarify the 'relevant aspects' that define equality and inequality for a given
matter" (op. cit., n. 1, p. 420).
Op. cit., n. 92, p. 938 (and post, 795).

697

CRITICAL EMPIRICISM

With sociolegal studies' "maturity,,23 has come both reassessment and a


call for socio-legal scholarship that is both critical and empirical. 24 But,
14
15

16

17
18

19

20
21

22
23

24

Op cit, n. 90, p. 1002.


Op cit, n. 92, p. 942 (and post, 798).
ihid.
CfRousseau, ante, 150.
Op cit, n. 90, p. 1003.
Post, 1375. And note Lord Reid's comment (post) that we don't believe in fairy tales any
longer.
Post, 1395.
E.g. D. Kennedy, A Critique a/Adjudication (1997).
See C. Kemp's excellent critique in (1999) 76 Denver University Law Rev. 961, 973 975.
See also Forbath, op cit, n. 70.
The American Law and Society Association celebrated its 25th anniversary in 1992.
The earliest call came
(see (1985) 9 Legal Studies Forum 7)

Sociological Jurisprudence and the Sociology of Law

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

(1989) 14 Law and Social Inquiry 3, 4.


ibid. p. 6.
Ante, 557.
Post, Chap. 13.
Post, Chap. 14.
Post, Chap. 15.
(1985) 9 Legal Studies Forum 7
(1985) 9 Legal Studies Forum 23,
(1985) 9 Legal Studies Forum 47

24.

(1986) Am.' Ethnologist 253. See also post, n. 43.


(1988) 22 Law and Sociely Rev. 409.
(1989) 17 Inl. J. Sociology of Law 41; (1988) 10 Law and Policy 293.
(1980) 15 Law and Soc. Review 775 (with Yngvesson); (1994) 28 Law and Soc. Review
149 (wilh McEwen and Maiman)
(1990) 15 Law and Social Inquiry 149.
Op. cit., n. 8, p. 14.
.
.
.
.,
(1987) 21 Law and Society Rev. 165 and post, 773 (thIs quotatIOn bemg omItted).
(1988) 22 Law and Society Rev. 409.

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

Sociological Jurisprudence and the Sociology of Law

Autopoiesis and Law

questioning the theme of universal scientism". 50 But Trubek and Esser


claim, such a belief is inconsistent with elements of the interpretive model
of action to which the group is committed. In addition, the critical empiricists perceive ideologies to be "objects of perception that can be described empiricaIlY",5l but to take this idea of its conclusion-which is
not done-would require it to include their own understanding of their
own knowledge production. The implication of this is that "the values we
advance, the perspectives we construct, and the evaluative criteria we
apply are all historical; they are deeply implicated with one another; they
hold together (though loosely) as webs of meaning; and they change over
time and over space".52
These criticisms have provoked a lively debate in the pages of Law and
Social Inquiry.53 It has led Sarat to concede that the "group" is "strug.
gling to do empirical work in a world stripped of a self-confident belief in
the distinction between subjects and objects and between ways of representing the world and the world that is represented".54 It acknowledges that it is "caught in a social process within which the most pressing
question will always be the political one of deciding what counts as accurate, persuasive and authoritative".55 Sarat does, however, concede
that the rules of critical and empirical work have yet to be stated c1earlya judgment with which it is difficult not to agree. This will continue to
raise question marks over "critical empiricism" but not to devalue the
insights of an intriguing product.

elements of which it consists through the elements of which it consists". 59


Such a system is operationally closed: "closure consists in the fact that all
operations always reproduce the system".60
Luhmann claims that law is an autopoietic system and so is operationally closed. Law is distinguished from its environment as a set of
normative, rather than cognitive expectations. 61 The autopoiesis of the
legal system is normatively closed in that only the legal system can bestow
legally normative quality on its elements and thereby constitute them as
elements,.62 This function appears to be much like Hart's rule of recognition 63 but there is an important difference. Hart's rule of recognition took as its referrent the behaviour of officials and was therefore part
of the society: Luhmann's function is a part of the legal system and is
distinctly separate from the society.
This raises the question of how a closed autopoietic legal system responds to developments in its larger social environment. Luhmann's initial answer to this is that the legal system, though normatively closed is
cognitively open. "The norm quality serves the autopoiesis of the system,
its self continuation in deference to the environment. The cognitive
quality serves the co-ordination of this process with the system's environment,,64 That this distinction was rather obscure 65 is now conceded
by Luhmann, who has now introduced the notion of "structural coupling".66 This is to be understood as channelling the extra-legal environment into the legal and vice versa. "Structural couplings are forms
of simultaneous ... relations.,,67 They "provide a continuous influx of
disorder against which the system maintains or changes its structure".68
In addition, Luhmann regards communication as the basis and the
subject matter of the system. It is the "domain" in which the differentiation of the legal system becomes possible. 69 But Luhmann stresses
that this does not require "a communication of the legal system to the
society as a relation between sender and receiver. The legal system cannot
communicate as a unity and the society has no address".70
The reader of this may wonder why because a theory is accepted in
biology it should have any explanatory power in law. He or she may
wonder also whether we are being offered "theory" or "metaphor,,71 If it
is only a metaphor, why should everything be explained by it, particularly

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

Per Trubek and Esser, op. cit., n. 25, p. 35.


ibid. p. 40.
ibid.
(1989) 14 Law and Social Inquiry (I) and (1990) IS Law and Social Inquiry (1).
(1990) IS Law and Social Inquiry ISS, 160.
ibid. p. 162.
See "Unity of the Legal System" in G. Teubner, Autopoietic Law (1988), p. 12; (1992) 13
Cardozo L. Rev. 1419; (1989) 89 Northwestern L. Rev. 136 and see A. Jacobson (1989)
87 Michigan L. Rev. 1647 and H. Rottleutner (1989) 23 Law and Soc. Rev. 778.
Autopoietic Law (1988); (1989) 23 Law and Soc. Rev. 728. Autopoietic Law has exponents in Britain as well, notably Michael King (1991) 18 J. Law and Soc. 303 and (with
Christine Piper), How The Law Thinks About Children (1990) and (1993) 20 J. Law and
Soc.; David Nelken, "Changing Paradigms in Sociology of Law" in G. Teubner, Autopoietic Law (1988), p. 191; and W. T. Murphy (J994)V Law and Critique 241.
Maturana in 1970 being the first to use III BIOlogy of Cognition.

59

60
61

62
63

6:
6)

66
67
68
69
70

71

701

Per Luhmann, "Unitv", p. 14.


ibid. p. IS.
ibid. p. 19.
ibid. p. 20.
Ante, 343. CfLuhmann: the system needs no "legitimation" by the social system (op. cit.
13 Cardozo L. Rev. at p. 1422).
Op. cit. n. 56, p. 20.
And see R. Lempert in G. Teubner, op. cit., n. 56, p. 152.
See (1992) 13 Cardozo L. Rev. 1419. 1432.
ibid.
.
ibid. p. 1433.
,hid. p. 1434.
ibid.
And see S. Diamond (1992) 13 Cardozo L. Rev. 1763.

Sociological Jurisprudence and the Sociology of Law

Autopoiesis and Law

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

have a part to play in an autopoietic theory of statutory cQPstruction?79


Do the findings of social science research have no part to play in the work
of the courtS?80 For example, psychological evidence on the value of eyewitness testimony.81 82 How does autopoiesis characterize custom, in
particular mercantile custom? And, think of the Hart-Fuller debate in the
context of autopoietic theory. As Sinclair83 puts it: "Is there not something quite frightening about an autonomous legal system, subject only to
its own operational constraints, but still the legal system defining legality
for society?,,84 A final intriguing question concerns the origins of legal
systems. If all legal systems are autopoietic, including the first ones, where
did they come from and why did they emerge? Unless the first legal
system was not autopoietic or not a legal system (by what test?), it seems
it must have had its source in the extra-legal environment, whether this
was religion, morality, or power.
The reader may ponder whether autopoiesis is the ultimate 85 in so86
ciological theories of law or an antidote to sociological jurisprudence.

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