Legal Construct, Social Concept
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Legal Construct, Social Concept

A Macrosociological Perspective on Law

Larry Barnett

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Legal Construct, Social Concept

A Macrosociological Perspective on Law

Larry Barnett

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About This Book

Based on sophisticated demographic analysis, Legal Construct, Social Concept argues that legal doctrine on social issues is shaped by the needs and values of society rather than by individuals and interest groups and that it evolves in response to social change but has little impact on that change. The book also explains why a substantial body of social science research has found that although law may be effective for some types of economic problems, its impact on social problems is generally small and of brief duration. At least in the United States, legal doctrine seems to operate primarily to provide symbols that enhance commitment to the social system and increase the cohesiveness of the system.

Barnett's approach to legal thought derives from the practices and assumptions of the social sciences, particularly sociology, and not from those of critical legal studies. His main concern is with social issues issues that substantively differ from economic issues. In addressing legal thought on social problems with the conceptual framework and quantitative techniques of macrosociology, he considers a topic that is infrequently investigated and employs an approach that is infrequently used.

To illustrate this thesis, Barnett presents data on social patterns relevant to three current issues: sex discrimination, age discrimination, and the availability of contraception and abortion. His analyses of these data are compared to constitutional philosophy, judicial rulings, and federal statutes. Barnett then turns from the evolution of legal doctrine in the past to its possible change in the future and considers whether active forms of euthanasia are likely to be legalized. He concludes with an exploration of additional issues for future research and theory.

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Publisher
Routledge
Year
2017
ISBN
9781351509169

CHAPTER
1

Introduction

This book explores a thesis that has not been adequately elaborated and tested because it requires contributions from two disciplines—sociology and law—that have failed to share extensively their intellectual resources. The limited interaction that has thus far occurred between the two fields is regrettable, for collaboration would benefit both. Particularly valuable to the legal community would be a focus on the structure and values of society, phenomena that are central to the sociological perspective. The structure of a society encompasses the manner in which social life is organized—i.e., the arrangements and patterns characterizing a society—while its values are the ideals and expectations that guide the actions of individuals and groups. The thesis advanced in this book is that societal structure and values are directly related to the nature of the doctrines found in the legal system. The links between societal conditions and law are, I suggest, strong and pervasive.
In the United States, the bulk of legal thought stems from the operation of the judiciary, and I will therefore focus primarily on the doctrines that courts have developed and utilized in resolving the issues they have faced. There are four types of law in our society: constitutions (federal and state), statutes enacted by legislatures (federal and state), regulations that are issued by administrative agencies to explicate statutes, and “common law.” The judiciary is the only mechanism in our legal system that deals with all four, and it thus produces the most comprehensive statement of American legal thought. Indeed, common law—the legal principles formulated by courts for issues to which a constitution, statute, or regulation does not apply—stems exclusively from the judiciary. The interpretation of constitutions and statutes is a task of the courts as well; the provisions of constitutions and statutes are necessarily general in nature, inevitably generate disputes regarding their application to concrete situations, and must therefore be construed by courts. In addition, the resolution of challenges to administrative regulations is the responsibility of the judiciary. A regulation may be questioned with regard to whether it is consistent with a constitutional provision and/or authorized by the statute under which it was adopted, and the task of resolving such challenges is imposed on courts.
But while the legal system in the United States may make courts the single most important source of legal doctrine, my concern is not solely with judicial decisions. On the contrary, the thesis I advance encompasses legal thought of all origins, and I will apply it to statutes as well as to court rulings in the chapters that follow. The book thus attempts to specify the manner in which law generally is tied to its social context.1
Unfortunately, the ties between society and law have not often been studied. As one observer has concluded, the result is that “[a]t least in the United States, sociology of law has developed to the point where its attitude to and relationship with legal theory urgently require clarification.”2 The problem is an important one. Because legal doctrine involves the assumptions and goals of the legal system, it both specifies the direction in which the system is moving and permits prediction of the way in which the system will behave in particular situations. Doctrine is thus a phenomenon that is central to the legal system and critical to its operation. However, law does not exist in a vacuum, and the social forces that affect it need to be identified. Regrettably, few sociologists and legal scholars have endeavored to do so with quantitative research methods. Sociologists have generally failed to appreciate the social character of legal principles, and “the widespread neglect of this fundamental point among legal sociologists . . . has so far prevented the study of legal thought and legal symbols and concepts from occupying a central place in the sociology of law.”3 Legal scholars, for their part, rarely venture into sociology and have not explored the nature of the ties that exist between legal ideas and society with the data sources and statistical tools available in that discipline.
The present work attempts to help fill this gap. I doubt that many of its arguments are new, but unlike previous writers who have attempted a general analysis of the societal functions of law, I have taken advantage of the enlarged volume and improved quality of quantitative research and data that have appeared in the social sciences since the mid-1970s. The contribution of this book, accordingly, is that it assembles the most credible quantitative evidence that can be brought to bear on the connection between legal thought and society; determines the theoretical propositions regarding the connection that are justified by this material; and illustrates the propositions with several specific topics. In doing so, the book differs sharply from traditional scholarship on the societal role of legal doctrine in the type of proof that it employs. Specifically, while conventional scholarship bases its conclusions on verbal analyses of phenomena—analyses that are unavoidably imprecise—the current book relies on quantitative evidence to investigate the societal environment of legal thought.4
At this point it may be helpful to consider a school that has emerged in recent years and that involves some aspects of both traditional jurisprudence scholarship and the approach I am pursuing. I consider the school here, albeit briefly, because some of its positions permit me to delineate more clearly the thrust of my work. The school—Critical Legal Studies—rests on a number of presuppositions.5 I begin with its contention that legal theories represent social values, not neutral and objective criteria, and that contradictory theories exist because they have incorporated different, and conflicting, values. Although this proposition is not central to my thesis, I do not disagree with it and, indeed, the following chapters will emphasize the relationship of social values and legal thought.
My agreement with Critical Legal Studies can extend no further than this, however, for I believe three important premises of that school are mistaken. First, Critical Legal Studies asserts that social values compete with one another for dominance and that, because the outcome of this competition determines which legal theories prevail, legal thought is not the result of a rational process.
We should no longer view the project of giving a “rational foundation” for law as a worthwhile endeavor. If morality and law are matters of conviction rather than logic, we have no reason to be ashamed that our deeply felt beliefs have no “basis” that can be demonstrated through a rational decision procedure or that we cannot prove them to be “true” or “right.”6
I cannot accept this position, because it suggests that a society selects its legal doctrines on the basis of criteria that are either random and/or beyond human understanding. In my view, social values and the legal theories they foster are attributable to societal conditions and needs whose identification is both feasible and important. If this is the case, law can be studied empirically and explained rationally.
A second difference between Critical Legal Studies and my thesis is that Critical Legal Studies has thus far documented its assertions with personal impressions and verbal studies. Quantitative data and statistical techniques, however, offer a more fruitful means to investigate legal thought, for they have a greater ability to produce accurate, precise information and, in turn, conclusions that are correct. It is for this reason I rely on them. Quantitative analyses are not necessarily free of error, but they provide a more rigorous and exacting method of discovery than the approach to evidence utilized to date by Critical Legal Studies.
I come then to the third and final point of disagreement: Critical Legal Studies contends that societal needs and patterns do not exercise a high degree of control over the content of legal doctrine; instead, the school appears to assume that the manner in which legal thought waxes and wanes in one setting is not generalizable to another setting and that the law adopted for a given issue results from a unique configuration of historically specific factors. I reject this position not because it is inconsistent with preconceptions I hold but because it is inconsistent with an impressive body of quantitative evidence. That evidence, which will be considered in the chapters to come, indicates that the links between legal doctrine and the social system are far stronger than advocates of Critical Legal Studies believe.
My approach to legal thought thus derives from the practices and assumptions of the social sciences, particularly sociology, and not from those of Critical Legal Studies. Its closest kin appears to be a body of scholarship known as the “interdisciplinary study of legal evolution”7 in which social science resources are used to determine how societal change alters law. Unfortunately, scholarship of this genre has been confined largely to economic issues. My concern, however, is with social issues—issues that are substantively different and require their own concepts. In addressing legal thought on social problems with the conceptual framework and quantitative techniques of macrosociology, I will therefore be considering a topic that is infrequently investigated and employing an approach that is infrequently used.
But why undertake an interdisciplinary study of legal change on any issue, social or economic? The answer is that the volume and scope of legal doctrine has expanded during the twentieth century because of alterations in the structure and values of society. Since the increase in legal thought is the product of factors that the social sciences have studied extensively, the increase cannot be understood without these disciplines. The chapters that follow will demonstrate the importance of the social sciences, but at this point I would like to consider the growth of legal doctrine. Table 1.1 presents one measure of that growth—the number of statutes (or, more exactly, public laws) approved by Congress since 1897.
Since legislation rescinds existing measures infrequently, the data in the table indicate the expansion that has taken place in legal doctrine from federal statutes. Excluding bills passed that were negated by a presidential veto, some 27,500 federal statutes became law during the nine decades covered by the table.8 While the vast majority of these statutes made just minor additions to doctrine, Congress clearly enlarged the number of significant legal principles during the twentieth century.9 I am not aware of data on the number of statutes enacted by state and local governments in the same period, but here too legislative measures have probably become more voluminous.10 The United States is thus in an era in which legal doctrines are changing in content and growing in number, and the links that exist between social circumstances and those doctrines need to be investigated.
Table 1.1 Number of Public Laws Enacted by Congress
Images
Before examining the thesis that social conditions and legal thought are closely connected, however, two issues should be considered. The first involves the type of evidence necessary to test the thesis and determine its accuracy. The issue is important to chapters 2 through 5, which focus on the elements of the thesis and its ability to generate useful explanations of change in legal thought. The second issue extends the discussion to the problem of prediction, a matter that is central to chapter 6.

Data Types and Causal Inferences

A resource invaluable to social scientists—and increasingly accessible to them—is information from recurring measurements of phenomena over a substantial period of time. For the purpose of identifying causal relationships, such data are superior to a statistical analysis of the characteristics of different individuals, areas, or entities at a single point in time. The latter approach—using what is termed cross-sectional data— compares its subjects on two contemporaneous dimensions. If differences on the dimensions accompany one another and the concomitant variation persists after other factors are statistically held constant, the approach concludes that one of the dimensions is the antecedent of the other. However, causality involves sequences in which phenomena are ordered temporally, and it is more likely to be accurately assessed when the phenomena can be followed over time. Thus, when evaluating the consequences of a particular event, longitudinal data that cover the period both before and after its occurrence are essential, and analyses grounded on cross-sectional data can generate erroneous conclusions.
A pair of studies concerned with the relationship between divorce law and divorce rates illustrates the two types of data and the inconsistent conclusions that can emanate from them. The first study employed cross-sectional data to assess the impact of state statutes governing the dissolution of marriage and found a strong, persistent correlation between the permissiveness of the statutes in 1960 and divorce rates in the same year. The data led the researchers to conclude that “the permissiveness of state divorce laws is a major determinant of state divorce rates. A state that liberalizes its divorce laws . . . may anticipate at least some increase in its divorce rate.”11 However, correlation is not causation, as social scientists are fond of pointing out. A statistical association between phenomena as they exist at the same point in time does not demonstrate that one preceded and produced the other. Indeed, in a later study the same researchers examined marriage termination rates over time in states that had adopted the highly permissive standard of “irretrievable breakdown” as a ground for divorce and, with longitudinal data, arrived at a very different conclusion regarding the impact of statutory liberalization. Specifically, they found that enactment of the new standard was not responsible for subsequent changes in marital dissolution rates. Rates rose following legislation permitting divorce for “irretrievably broken” marriages, but the increases had commenced well before the statutes were revised. In the words of the researchers, “[t]he higher [postreform] rates are part of a trend starting before the reforms and cannot be attributed to a change in the law.”12
Longitudinal data, then, furnish a more powerful tool for ascertaining whether causal relationships exist—particularly when the time period covered begins substantially in advance of the event being investigated and continues sub...

Table of contents