The Sociology of Law

Classical and Contemporary Perspectives

A. Javier Trevino

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351473705
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The purpose of this book is to introduce the sociology of law by providing a coherent organization to the general body of literature in that field. As such, the text gives a comprehensive overview of theoretical sociology of law. It deals with the broad expanse of the field and covers a vast amount of intellectual terrain. This volume is intended to fill a gap in the literature. Most textbooks in the sociology of law are insufficiently theoretical or else do not provide a paradigmatic analysis of sociological theories.

The content of this text consists of discussions of the works of scholars who have contributed the most to the cumulative development of the sociology of law. It surveys the major traditions of legal sociology but is not wedded to any one particular theoretical approach. Both the "classical, " or nineteenth-century, and "contemporary, " or twentieth-century, perspectives are covered. The reader will see that nineteenth-century thought has directly influenced the emergence of twentieth-century theory.

One unique feature of this book is that key sociological and legal concepts, presented in bold print and italics, are defined, described, and illustrated throughout. Although the nature of the subject matter is highly theoretical and, at times, quite complex, Trevino values every effort to present the material in the most straightforward and intelligible form possible without compromising the integrity of the theories themselves. In short, this book aims to accomplish three objectives: inform about the progressive advancement of sociological theory, teach the reader to analyze the law as a social phenomenon, and develop in the reader a critical mode of thinking about issues relevant to the relationship between law and society.

1
The Sociology of Law

This opening chapter introduces the reader to some of the general topics that will inform the next nine chapters. By way of addressing these topics we begin by posing three fundamental and pivotal questions: What is sociology? What is law? and What is the sociology of law? Although it is virtually impossible to give definitive answers to these questions, it is nevertheless necessary that we seriously consider them and, at minimum, attempt a tentative description of their concerns. The main purpose of this chapter is to provide an organizing theme to the study of the sociology of law.

Generally speaking, the sociology of law is concerned with explaining the relationship between law and society. This relationship compels the student of legal sociology to obtain a working knowledge of how the beliefs, practices, and organization of the law and of human society operate. The sections that follow will introduce us to this working knowledge. We begin by considering the question: What is sociology?

What Is Sociology?

We may define sociology as the study of: (1) human society, (2) the organization of social groups, (3) the social interactions of people, and (4) the meaning that people give to their social reality. Put another way, sociology is an “intellectual craft”; a way of looking at all things social (Mills, 1959). Because of the broad inclusiveness of its subject matter, sociology must often consult other knowledge-fields such as philosophy, history, political science, anthropology, economics, and law.

A wide array of topics are of interest to the sociologist. These topics include deviant behavior; the influence of health and illness on society; education; the urban environment; the family; religion; race and ethnic relations; the influence of politics on society; work and occupations; military life; and law. Consequently, sociology consists of many specialties or subfields such as the sociology of deviance, medical sociology, the sociology of education, urban sociology, the sociology of the family, the sociology of religion, the sociology of race and ethnic relations, political sociology, the sociology of work and occupations, military sociology, and the sociology of law, or legal sociology.

Sociologists are typically interested in studying social institutions, or those forms of organization that are supported by, and meet the basic needs of a society. The major institutions found in most societies are the family, the economy, the polity (i.e., government or the state), education, religion, and law. In addition, all societies possess a type of skeletal framework or social structure—an organizational pattern of social relations. Making up the social structure are the basic components of society, which include the aforementioned institutions as well as roles, statuses, nouns, values, and ideology.

The institutions themselves have a social structure. For example, the legal institution contains various roles, or patterns of behavioral expectations, in the form of legislators, judges, lawyers, and police officers. These individuals are assigned a distinct task or a set of tasks to perform in accordance with their obligations and within the context of the legal institution. Additionally, there are various statuses, or social positions, that correspond to the different roles. For instance, in the courtroom as well as in society at large, judges have traditionally held a higher social position than police officers. Consequently, relative to police officers, judges enjoy greater esteem, prestige, and honor. Moreover, there are certain norms, or social rules, that exist in the legal institution. Some of these norms include the following: state legislators must not make a law that contradicts the Constitution of the United States; all those present in the courtroom must rise as the judge enters and takes the bench; lawyers must, to the best of their ability, represent their clients; and police officers must not use excessive force when apprehending a suspect. Some of the major values, or standards of desirability and goodness, that are prevalent in the legal institution of the U.S. are the following: judges must not take bribes; members of Congress should represent the interests of their constituents; and the president is expected to be honest with the American people. Finally, a dominant ideology, or belief system, exists throughout society and informs most of the social institutions including the legal one. For instance, the general notion that all U.S. citizens have the right to life, liberty, and the pursuit of happiness, forms part of our cultural as well as legal ideology.

The Tools of the Craft

Much like practitioners in other knowledge-fields, sociologists utilize certain instruments or tools that aid them in learning more about society, its institutions, and social structure. Because most (though not all) of what sociologists study is, by its nature, intangible and abstract (namely, social institutions and social structures) so too must their tools, of necessity, be intangible and abstract. There are three main types of tools used by the sociologist: concepts, theories, and paradigms.

Concepts are ideas that represent some important features of the social world. Concepts take the form of words and, sometimes, phrases. Throughout this book we will examine a variety of sociological and legal concepts, some of which are simple, others more complex.

A theory is a set of interrelated statements, or propositions, that attempts to explain certain aspects of society and regular patterns of social behavior. It is through theories that sociologists endeavor to answer the larger social questions: Why do some people obey the law while others violate it? How do changes in society bring about corresponding changes in the law? Do some groups of people benefit more from legislation relative to other groups? Most of what is called “theory” in sociology is not stated formally. Indeed, much of sociological theory is amorphous and not always articulated in propositions. Thus, in this text, we will generally call theory any scholarly effort—formal or informal, structured or unstructured—that attempts to make sense of, and explain, sociolegal phenomena. Let us now look at the third type of tool used by the sociologist, the paradigm.

A paradigm—that is, a theoretical perspective, school of thought, or intellectual tradition—serves as an orientation that reflects a particular set of ideas and assumptions regarding the nature of people and society. Sociology has been called a “multiple paradigm science” because of the many competing theoretical perspectives that currently exist in the discipline (Ritzer, 1975). In other words, there are various ways of examining the social world and doing sociology. Each paradigm gives the sociologist a different view of social reality. Because no paradigm is wholly comprehensive, no one paradigm can provide all of the answers to all of the issues of social life. In this book we will be concerned principally with structural-functionalism and conflict theory since these are the two paradigms that have most influenced the sociology of law.

Generally, structural-fanctionalism is based on the assumption that society is a complex system made up of interdependent parts that work together to produce stability and consensus. Functionalists see law as a neutral entity that serves to resolve disputes and contribute to the integration of society. We will examine this paradigm in more detail in Chapter 7. By contrast, the conflict paradigm is based on the assumption that the antagonisms, hostilities, and struggles over power and scarce resources in society lead to social inequality. Conflict theorists view law as a weapon that is used by powerful social groups for the purpose of establishing, defending, and propagating their interests, values, and ideological beliefs. The conflict perspective will be featured in Chapter 8.

The Theorists and Premodern, Modern, and Postmodern Society

In this textbook we will also examine the work of those theorists who proposed, elaborated, and popularized the various concepts, theories, and paradigms relevant to the sociology of law. Among these theorists are jurists, legal scholars, philosophers, historians, and anthropologists. Most of the theorists, however, are either sociologists by training or else their work exhibits a strong sociological orientation. The sociolegal perspectives of three major theorists—Karl Marx, Max Weber, and Emile Durkheim—will be analyzed in Chapters 4, 5, and 6, respectively. The sociology of law—indeed, all of general sociology—has its theoretical basis in the ideas of these three thinkers of the nineteenth century. They rightly demand our serious consideration.

It is noteworthy that the theorists discussed in this book articulated their sociological statements in reference to societies situated in specific historical time periods and informed by different cultural values, goals, and ideologies. These temporal and cultural differences allow us to speak of three “pure” types of society: the premodern, the modern, and the postmodern.

The premodern characterizes Western societies before the eighteenth century as well as some contemporary cultures in the nonindustrialized parts of Asia, Africa, and Latin America. Premodern societies are guided by two interrelated ideologies. On the one hand, there is the “religious ideology” that views social phenomena as being endowed with, and controlled by, magical, mystical, and supernatural forces. On the other hand, there is the “ideology of the heroic” that ranks people on the basis of their degree of personal charisma, wisdom, and inspiration. These two ideologies combine to form a society organized around inherited social status and sacred authority. Thus, in premodern societies, the most influential individuals are those with the highest social status and the greatest sacred authority: warriors, priests, prophets, kings, tribal chiefs, patriarchs, slaveholders, landowners, and divinely inspired judges.

The modern characterizes Western society from the eighteenth century to the mid-twentieth century. Modern, Western society lays great stress on rationality, calculability, production, and predictability. Whereas premodern society is dominated by religion and magic, modern society is dominated by science and technology. Social phenomena, therefore, are explained through reason, logic, and observation. Modern thinking extols the notion that there exists an objective social reality composed of fixed and knowable entities.

In modernity the metaphor for life is the machine. Society is seen as a complex mechanical device with logical coherence; like a clock, for instance, made up of differentiated parts operating efficiently to maintain the whole. The large-scale organizations and institutions of modern society are structured bureaucratically. Modern society is also industrialized and largely engaged in the mass production of manufactured goods. Modern persons are viewed as time-conscious, task-oriented, rational agents who examine the facts and make decisions accordingly. People engage in contractual relationships with each other and orient their social actions toward the pursuit of gain.

Modern society’s economy is capitalist, its politics liberal, its law formal. As such, modernity is premised on the notion of the private. Much importance is placed on the entitlement of rights for the private citizen, the private law of contract, and the ownership of private property. In modern societies the most influential people are scientists, technicians, industrialists, bureaucratic functionaries, specialists, and technically trained members of the bar. As we shall see, the majority of the social theorists featured in this book focus exclusively on modern society.

The postmodern, which has characterized Western society since the mid-twentieth century, is more difficult to depict because it is still in the making. Generally speaking, however, postmodern society involves the intensification and exaggeration—a travesty, so to speak—of modernity. Thus, relative to modernity, postmodern culture is much more differentiated and rational. Greater social differentiation brings about more narrow expertise and in postmodern society we find specializations and sub-specializations. Each specialization is a community of discourse with its own distinct language and therefore unable to communicate with other communities. There is, however, a state of reflexivity, or a circularity of communication and observation, within each specialized community. Differentiation also produces various viewpoints—different and competing ideologies—that give emphasis to relativity. Individuals in postmodern society are confronted with a multiplicity of meanings based on a rhetoric that is full of paradoxes and contradictions. Consequently, all truth claims are challenged, all narratives are discredited, and no ideology is granted a privileged position. Thus, three main traits of postmodern society are reflexivity, the multiplicity of meanings, and paradoxes and contradictions.

Postmodernism is a disconcerting mixture—a fragmentation and integration— of seemingly incompatible viewpoints and lifestyles. In postmodern culture traditional boundaries are blurred and re-formed. Elements that were previously seen as dichotomous now blend into each other: private/public, objective/subjective, form/substance, self/other. This blurring of traditional boundaries makes social reality more incoherent, indeterminate, and uncertain. In postmodern society relationships are highly mechanical, instrumental, and autonomous. Much greater emphasis is placed on rationality to the point that it becomes irrational. Social theorist George Ritzer calls this phenomenon the “irrationality of rationality” (1994:152ff). The result is that bureaucratic functioning becomes highly technical and less efficient. In short, present-day postmodern society is a confounded caricature of the past. Throughout this text we will see how the beliefs, practices, and organization of premodern, modern, and postmodern society impact on the law.

Having briefly, and thus superficially, considered the question, What is sociology?, we now turn our attention to the next logical question, What is law?

What Is Law?

In 1781 the German philosopher Immanuel Kant noted that jurists were still searching for a definition of law (1933:588, n.a). Over two hundred years later, no conclusive definition of the concept exists. This is not for want of trying, for numerous scholars have attempted to define the concept of law. For example, U.S. Supreme Court Justice Oliver Wendell Holmes (see Chapter 3) described it, very pragmatically, as “the prophecies of what the courts will do in fact” (1897:461). Similarly, another Justice, Benjamin N. Cardozo, defined law as “a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged” (1924:52). Legal philosopher Hermann Kantorowicz characterized law, very broadly (and ambiguously), as “a body of social rules prescribing external conduct and considered justiciable” (1980:79).

Anthropologists such as Bronislaw Malinowski, whose ideas we will discuss in Chapter 7, have also tried their hand at defining the law concept. According to Malinowski, “law is the specific result of the configuration of obligations, which makes it impossible for the native to shirk his responsibility without suffering for it in the future” (1982:49). Another anthropologist, E. Adamson Hoebel, states that “a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting” (1978:28).

Sociologists, too, have contributed their own share of definitions. For instance, Richard Quinney, whose theory of the social reality of crime is discussed in Chapter 8, regards law as “a body of specialized rules created and interpreted in a politically organized society” (1970:36). Legal sociologist Donald Black views law, very concisely, as “governmental social control” (1976:2). More recently, Steven Vago has stated that, “law consists of the behaviors, situations, and conditions for making, interpreting, and applying legal rules that are backed by the state’s legitimate coercive apparatus for enforcement” (1994:8). But perhaps the most famous of all sociological definitions is that of Max Weber: “An order will be called law if it is externally guaranteed by the probability that physical or psychological coercion will be applied by a staff of people in order to bring about compliance or avenge violation” (1978:34). We will have opportunity to examine Weber’s definition more closely in Chapter 5.

As we have already seen, law is regarded as one of the major institutions of society. As such, we may speak of the legal institution. Sociologist Alan V Johnson (1977), for example, conceptualizes law as an institution composed of a body of statements and a set of organized activities that express or implement the body of statements. Other writers, such as Max Weber and Roscoe Pound, view the law as a legal order—”the regime of adjusting relations and ordering conduct by the systematic application of the force of a politically organized society” (Pound, 1971:300). Still others have referred to law as a “system” and thus make reference to the legal system. Legal scholar Lawrence M. Friedman (1975), for instance, argues that the law is a system, or an operating unit with definite boundaries, that has as its components a social structure, substance, and culture. Depending on which description best suits the discussion at hand, we will refer to law as an institution (Chapter 4), an order (Chapter 5), or a system (Chapter 7).

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