Law, Society and Community

Socio-Legal Essays in Honour of Roger Cotterrell

Richard Nobles, David Schiff

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317107286
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This collection of socio-legal studies, written by leading theorists and researchers from around the world, offers original, perceptive and critical contributions to ideas and theories that have been expounded by Roger Cotterrell over a long and distinguished career. Engaging with many classic issues and theories of the sociology of law, the contributions are likely to become classics themselves as they tackle some of the most significant challenges that modern law faces. They do not shy away from what one of the contributors describes as the complexity and multiplicity of our contemporary legal world. The book is organized in three parts: socio-legal themes; methodological and jurisprudential themes; globalization, cultural and comparative law themes. Starting with a chapter that re-engages with the need to interpret legal ideas sociologically, and ending with one that explores the global significance of modern fascination with the idea of the rule of law, this selection offers important additions to the oeuvre of Roger Cotterrell (a list of whose academic writings is included in the book).

PART I
Socio-Legal Themes

Chapter 1
Why Must Legal Ideas Be Interpreted Sociologically? Roger Cotterrell and the Vocation of Sociology of Law

David Nelken

It is a delight and a privilege to be asked to write something for this much deserved festschrift for Roger Cotterrell. I have known Roger for more than 30 years and we have remained friends and colleagues for all of this time through the various vicissitudes that life presents. I feel fortunate that our careers have overlapped to a considerable extent, which gave me the opportunity both to learn from him as well as to teach together.¹

Even if our ideas on most matters are very close² we have occasionally also been intellectual sparring partners. During the course of one exchange I sent him a draft of a paper in which I tried to question the force of his claim that law ‘must’ be interpreted sociologically.³ He wrote back almost immediately, ‘But David, I didn’t know we were so far apart. I had to put my coffee down!’ However, I see my task here not to tell you stories about this private and modest man but rather to show the importance of his ideas for anyone who wants to think about the possible purposes of studying law sociologically. I shall first briefly summarize his work and achievements. I shall then revisit our earlier exchange and discuss how Roger changed his approach to the goals of sociology of law. I then go on to consider what Roger has had to say more recently about using the writings of Emile Durkheim to illuminate controversial political and legal issues. I conclude by asking whether our positions may now be converging.

1. Roger’s Career

After studying for his law degree at University College London, Roger was briefly on the staff of the department of law at the University of Leicester. But, crucially for both his future and the future of sociology of law in the UK, his dissatisfaction with the way law was then taught led him to take a Masters course in sociology and politics at Birkbeck in 1973. There, as he readily acknowledges, he gained greatly from the teaching of the late Paul Hirst,⁴ Roger spent his entire subsequent career at Queen Mary (University of London) where he rose to be Dean of the School of Law and Anniversary Professor of Legal Theory. He has also been in high demand as a lecturer and examiner in the UK and has lectured in numerous other countries including the USA, Canada, Belgium, Italy, Netherlands, Poland, Sweden, Spain, Switzerland, Finland, Israel, China, Hong Kong, Japan and India. He has also twice taught courses at the Oñati International Institute of Sociology of Law in Spain and is regularly called on to be plenary speaker at its international conferences. Amongst the honours Roger has received for his work he was made a Fellow of the British Academy in 2005 (amongst the highest forms of recognition for academics in the UK and one given to very few law professors), and he was awarded the (UK) SLSA award for his contribution to socio-legal studies in 2013. Roger is thus clearly an exemplary scholar and teacher.

For me and for most of his peers Roger Cotterrell is unquestionably the leading social theorist of law and sociologist of law in the UK, and amongst the very best worldwide. He displays highly sophisticated theoretical skills when offering exegesis and critiques of the literature, but he also has a masterly capacity to appreciate and synthesize the results of empirical work. In a career spanning almost 40 years he has impressed his stamp on the field and been a model for colleagues and students. Roger’s major academic contributions (often translated into other languages) are found in the monographs The Sociology of Law: An Introduction (two editions, 1984 and 1992), The Politics of Jurisprudence (two editions, 1989 and 2003), Law’s Community: Legal Theory in Sociological Perspective (1995), Emile Durkheim: Law in a Moral Domain (1999), Law, Culture and Society: Legal Ideas in the Perspective of Social Theory (2006) and Living Law: Studies in Legal and Social Theory (2008). In addition, he has authored a number of edited books, book chapters and a stream of path-breaking journal articles (well over 100).

The range of Roger’s corpus of work is second to none amongst his socio-legal colleagues. He has written wisely and insightfully about Marx, Durkheim (and his school), Weber, Ehrlich, Gurvitch, Pashukanis, Olivecrona, Radbruch, Luhmann, Neumann, Polanyi, Selznick and Petrazycki, amongst others. He has left an archive of extensive interviews with the late Philip Selznick at Berkeley, and has himself been interviewed, by Hakan Hayden of Lund University, in a set of biographical interviews with leading sociologists of law. And Roger is still at the height of his powers. Roger’s work is anchored in particular in a critical and original reappraisal and synthesis of Durkheim (and the Durheimians) and Weber, so as to rethink the relationship between law and community/communities at a time of growing pluralism and globalization. Recent cutting-edge contributions include pieces on Law’s response to cultural pluralism (to be discussed later, 2011a) as well as cutting edge pieces on the transnationalization of law and the dangers of ‘disembedding’ the economy from the larger society (2008a, 2012).

But, if Roger’s work has been so widely cited in the UK, Europe and beyond, it is because it goes beyond the findings of particular studies and observations about specific authors and offers in addition an overall vision of what sociology of law is for, and what it should be for. Roger has led the way in advocating firmly the virtues of social thinking about law as an essential supplement or corrective to analytical and ordinary language philosophy, whilst also showing how it can maintain a dialogue with related disciplines and subject areas. Few scholars have written as thoughtfully about its links with the discipline of sociology and social science more generally, as well as its relationship with legal philosophy, legal practice and legal education. Roger’s sustained and serious engagement, in particular with its epistemological challenges and value laden justice challenges, has been fundamental for establishing the credibility of the subject. This is seen for example in his acute writings about culture, multiculturalism and community as well as his discussions of the legal profession and the legal academy. Throughout his career he has sought strongly to encourage the growth of sociology of law, e.g. through active involvement with the leading journals – especially so in the cases of the Journal of Law and Society, Law and Society Review and the International Journal of Law in Context. He has helped to make ‘sociological perspectives’ not only acceptable and welcome, but even seen as necessary for legal scholars. Whilst to his sociological colleagues he has shown how juristic perspectives can sometimes be useful even for sociological purposes. The fact that he is formally qualified in both law (having written on trust, property and administrative law), and sociology has helped in this juristic-sociological balancing act.

But Roger does of course also have a life outside of the academy. Many colleagues (but perhaps not all) will have heard of his fascination for and expertise in jazz,⁵ evidenced by the regular contributions he used to make to the Warsaw magazine Jazz Forum, and the books about jazz he authored or edited. Some of these are included in the publisher’s list of Northway books – in the publishing venture undertaken by his wife Ann with his help. Perhaps less well known is his commitment to his Methodist church, taking part in its management responsibilities and contributing reflections on issues that face those searching for religious ideals against a background of neo-liberal political orthodoxies.⁶ Whilst he never attempts to impose his ideas, he nonetheless holds strong convictions about what makes for a fair society and an almost visceral refusal of systems that reinforce social and class hierarchies. To everything he does he brings the same gentle integrity, whether it involves work, the church or his family: his son David is a famous installation artist, his daughter Lin has been a social policy adviser and researcher, and he has four grandchildren.

2. Sociology of Law and the Problem of Allegiances

Though there is a strong common thread in his work, it has also changed significantly in emphasis over time.⁷ In a retrospective of his own work (though there would now be ample justification for another one!) Cotterrell explained that when he first ‘nailed his flag to the mast of social science’ his goal was to discover ‘new’, more ‘objective’ and ‘realistic’ ways of observing and interpreting law. However later on he came to advocate a ‘critical, analytical view of the scientific quest itself and a reflexive attitude to the faith in science on which it is founded’. In particular he rejected the boundaries of sociology as a limit to the aspirations of social studies of law. Increasingly concerned ‘to go beyond attempts to justify a particular vision of science’, his current work has been less motivated by the search for ‘scientific means of revealing facets of law often hidden from sight’, and more by the desire to formulate a coherent ‘moral vision’ with the help of which law can and must be made to serve new social purposes (Cotterrell 1995: 15, 16ff).

Work in the first stage, up to and including the first edition of his The Sociology of Law: An Introduction textbook, rested on the premise that ‘the aim of empirical legal theory (is) that law is always viewed “from the outside”, from the perspective of an observer of legal institutions, doctrines and behaviour, rather than that of a participant’ (Cotterrell 1983: 242). In what is still the mainstream rationale of the subject, sociology’s strength is here seen as a function of Law’s weakness; ‘sociological analysis of law has as its sole unifying objective the attempt to remedy the assumed inadequacy of lawyer’s doctrinal analysis of law’.⁸ His early textbook on sociology of law brought together a wide range of its most important sociological empirical findings and showed the achievements and potential of this research field.⁹ The book was a success, widely used by law students and social science students in various countries, translated into several languages and published in many foreign editions. But after two editions he lost interest in this enterprise. Subsequently, the focus of his work shifted as he tried to develop socio-legal approaches so as to provide an alternative paradigm within jurisprudence to what he saw as the social myopia of much legal philosophy.

From around 1986 Cotterrell began to focus on the problem that academic sociology might itself be subject to limits. He envisaged sociology and law as different discourses, each with its own conditions of existence, in which ‘each constructs its own fields of knowledge and experience’ (1986: 11). But he nevertheless found an ingenious argument to show why sociology can still provide a privileged route to understanding law because it is dedicated to a reflexive perspective on the development of all disciplines – including itself. Law, by contrast, lacking this interest, is no more than a ‘discipline-effect’. Sociology may not have managed to become a successful form of power/knowledge; it is contested both by general common sense and by more specialised disciplines, and for its lack of rigorousness, which makes it, he says, an easy target for ‘intellectual sharpshooters’. But rather than any of this constituting an impediment, it is exactly these weaknesses which allow the sociological imagination to play such a positive role in shaping legal discourse. In fact, as he has argued more recently, through this most ‘practical’ (1998: 178) view of legal ideas, sociological insights can help legal discourses reach interpretative solutions to puzzles that would otherwise be impossible to resolve.

In the debate between us that followed not long after this change of heart I suggested that what was at stake could be better understood if we contrasted two competing ways of looking at the sociology of law. The first approach relates law to its wider historical and social environment and to competing and overlapping disciplines and practices and has little difficulty in showing how legal actors often have little grasp of the factors which shape the ‘inputs’ and ‘outcomes’ of their decisions.¹⁰ The second approach presupposes most of these constraints and seeks to improve the quality of decision making in terms that can be used by legal actors. Where the first type of scholarship deliberately transforms legal definitions into sociological categories, the second seeks to translate sociological insights into legal concepts.¹¹ Importantly, an approach useful for showing the limits of Law’s sociological understanding of the world is not automatically useful for helping law overcome those limits. This is because it risks creating law in the image of social science (or the particular social science or external discipline being used to interpret Law’s intentions and criticize its workings).¹²

Roger, however, disagreed. No such dilemma existed. Legal ideas, he argued, must be interpreted through employing social insights because this allows ‘the deliberate extension in carefully specified directions of the diverse ways in which legal participants themselves think about the social world in legal terms’ (Cotterrell 1998: 190) and is a ‘necessary means of broadening legal understanding taken as the systematic and empirical understanding of a certain aspect of social life which is recognised as “legal”’ (Cotterrell 1998, 191). He was not of course insensitive to the danger that in trying to understand law better than it understands itself sociological interpretation could end up creating law in its own image. To avoid this he suggests we adopt a sociological approach that does not involve any such imposition on law of what he calls an ‘alien’ or ‘colonising methodology’ (Cotterrell 1998: 191). His ‘transdisciplinary’ conception of the sociology of law, he says, is one in which ‘the use of the word sociological does not imply adherence to the distinct methods, theories or outlook of the academic discipline called sociology’ or that of ‘any other specific social science or other discipline’ (Cotterrell 1998: 182). Lawyers, and other participants in legal matters, already engage in social theorizing about law. No doubt they could – and should do this better (and more often), but there are no external disciplinary protocols to be followed in deciding exactly when and how they should do this. The social theorist offers his or her insights. But their value is not decided by the contribution they make to the discipline of sociology. Instead of the once proud (if never fully explicated) slogan that ‘law is a social science’, he now tells us that if sociology of law has any allegiance it is ‘to law itself’.

I was not convinced. It would be unwise to assume that law is – by definition – concerned with systematic, empirical, knowledge of the social world. Surely this is exactly what is in question. It is the variability in the extent to which legal discourses (or legal systems) express these features that distinguish them from sociology – and it is the study of this variability that forms the subject matter of sociology. Cotterrell at times admits this, even explaining that two of Law’s essential features can come into conflict because law (but presumably not sociology) is caught in the tension between systematic knowledge and ‘the wilderness of single instances’. His argument that legal ideas must be interpreted sociologically thus presupposes but does not demonstrate that law must necessarily be interested in the maximum extent of systematic empirical knowledge of the social world. In fact it is the extent to which law does not correspond to this model that he himself relies on in explaining the need for sociology. But even if we conceded for argument’s sake that legal discourses are indeed all social, systematic and empirical this would not necessarily guarantee a smooth matching of the discourses of law and sociology. What of the rival claims of other approaches such as those of psychology, history or economics? What about other aspects of law that this characterization of law leaves out – for example the idea that it is also a hermeneutical search for correct and coherent textual meaning.

I argued that the best prophylactic against the temptation for sociology to create law in its own image was to search also for insights regarding its differences as much as its similarities to law, to pay more, rather than less, attention to their disciplinary practices and allegiances....

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures
• Notes on Contributors
• Introduction
• PART I SOCIO-LEGAL THEMES
• PART II METHODOLOGICAL AND JURISPRUDENTIAL THEMES
• PART III GLOBALIZATION, CULTURAL AND COMPARATIVE LAW THEMES
• Appendix: Roger Cotterrell: Academic Writings
• Index