Exploring the 'Socio' of Socio-Legal Studies

Dermot Feenan

• Publisher: Palgrave Macmillan
• Year: 2017
• Print ISBN: 9780230337183
• eBook ISBN: 9781137314635
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In this insightful collection, a broad range of scholars analyzes a core issue for socio-legal studies, what is understood by the 'socio' of the 'socio-legal'. Drawing from legal theory, cultural studies, and social policy, the collection's wide scope of themes and topics provides an important stock-take and analysisof the socio-legal field.

Part I

Introductory Enquiries: Socio, Social ... Other?

1

Exploring the ‘Socio’ of Socio-Legal Studies

Dermot Feenan

Introduction

Socio-legal studies is now sufficiently well established internationally as a field of enquiry to warrant reflective examination of one of the key elements of such study; the ‘socio’ of the ‘sociolegal’. The significance and reach of socio-legal studies means that this examination is important not only to those who identify as socio-legal scholars, but to an expanding number of students, researchers and policymakers in law and in other fields informed by those studies. This focus on the socio also reflects a widespread and growing sense – not limited to socio-legal studies – that rapid changes in late modernity, such as consumerism, globalization, or neoliberalism, pose fresh challenges. Moreover, the profound social changes resulting from the economic crisis in many advanced capitalist countries in the new millennium provide added justification for this examination. This chapter introduces a book which was conceived to address these issues. The book brings together a variety of scholars, whose work has been selected because of their distinctive contribution to an aspect of the socio – whether, for example, in cultural studies, social policy, or legal studies.¹ The distinctiveness of their contributions carries with it another justification: that diverse, dynamic and contested understandings of the social require continuous attention where the legal is also in issue. But before introducing those contributions, this chapter takes stock of the key features of the existing field. The chapter then concludes with consideration of possible pathways for future developments in the socio-legal field.

Previous engagements with the socio

The term ‘sociolegal’ appears to have been in established use in the US since the early part of the twentieth century.² In the UK, a number of academic lawyers and social scientists organized in 1972 as the Socio-Legal Group to hold regular conferences. That group developed into the Socio-Legal Studies Association (SLSA) in 1990. The Association conceives of socio-legal studies as embracing ‘disciplines and subjects concerned with law as a social institution, with the social effects of law, legal processes, institutions and services and with the influence of social, political and economic factors on the law and legal institutions’.³ In 1972, the Social Science Research Council (the predecessor of the Economic and Social Research Council) in a move to provide institutional support for socio-legal studies funded the Centre for Socio-Legal Studies at the University of Oxford.

Notwithstanding the increasing extent of socio-legal research, teaching and professional activity, there has been relatively little critical analysis of what constitutes the socio of socio-legal studies (Fitzpatrick, 1995). True, a number of scholars associated with the field engaged in various ways with the issue (Cowan, 2004). A challenge to elaborating the socio, acknowledged indirectly by some early proponents, such as Harris (1983), is that there is no agreed definition of socio-legal studies. Some scholars have addressed the socio directly, though in passing. A few scholars have addressed it obliquely, by offering definitions of socio-legal studies generally (Campbell and Wiles, 1975; Cotterrell, 1995; Carline and Baker, 2008) or by exploring the various meanings of socio-legal (Hutter and Lloyd-Bostock, 1997; Feeley, 2001). Here, the socio is not analysed separately but is discernible through the definition given to the broader conjoined field of the socio-legal. But these different definitions connote different concepts of the socio and, consequently, different relationships between the socio and the legal. Some treat the socio as connoting the ‘social’ (Faulkner et al., 2012) or as contributing to an understanding of the social (McDermont et al., 2012). A number of studies define it in terms of the study of law in its social context. Some other studies broaden that context to include the ‘political and economic’ (Partington, 1995), or add the ‘cultural’ (Hillyard and Sim, 1997). However, the precise relationship between these fields is rarely elaborated. By far the largest number of scholars address the socio impliedly, by positing the sociological deficit in socio-legal studies (whereby the socio is framed by its asserted lack)(Campbell and Wiles, 1975; Banakar and Travers, 2005) or by addressing or encouraging engagement with the ‘social’, ‘sociological’ or ‘social sciences’ (Tamanaha, 1997; Cotterrell, 2002; Mertz, 2008). A number of early studies reflect a dimorphic and instrumental relationship between law and society. Here, law is treated as separate, even inviolate (Fitzpatrick, 1997), though related to or contextualized within ‘society’ and operating upon ‘society’. Often, it is concerned with a mechanistic view of law, for instance, in terms of how social sciences throw light on ‘the workings of law and legal institutions’ (Adler, 2007, p. 1). Wheeler and Thomas (2000) suggest a different relationship, one which focuses on intellectual relations and interface: ‘The “socio” in socio-legal studies means to us an interface with a context within which law exists, be that a sociological, historical, economic, geographical or other context.’ (p. 271)

Some understanding of the foregoing diversity of approach to what constitutes the socio can be derived from a brief overview of the key developments in socio-legal studies.

Law-in-action

Early socio-legal study continued a reaction, first established in the US, against legal formalism. The new socio-legal, or ‘law in society’, approach sought to examine law in action and ‘how the legal system actually operates’ (Friedman, 1986, p. 764). Much of the early work adopted an instrumental view of ‘law’ or the ‘legal’. This work examined the operation of law in formal environments, for example, the courts, or in what were deemed to be informal environments, such as the law office (see e.g. Partington, 1995). The prevailing concern was with fact-finding about the social effects of law, often using social science and ethnographic surveys. In this version of law, ‘law’s reality’ is linked to empirical research, and ‘[u]nderstanding the impact of law and legal phenomena in the modern world derives from scientific empirical research’ (Partington, 2008, p. 1). The socio in such an approach was attenuated, secondary to an idea of law which is coherent, unitary and largely statist. The sociological imagination in such an approach is limited, its purview of the social narrow (Hillyard, 1995).

The law in action model tended to see law primarily in functionalist terms, focusing on rules and what they do rather than understanding law in structural or hermeneutical terms of how law is structured conceptually and interacts as a system (Nelken, 1981). However, it bears remembering that these early socio-legal studies provided insights into topics of significant social concern, such as compensation for industrial disease (Wikeley, 1993) and for personal injury (Harris et al., 1984). They also reflected to an extent the political climate of the time. As Partington notes of the position in the UK:

those were the days of the rediscovery of poverty, a shift from ‘discretion’ to ‘rights’ as the basis for the delivery of entitlements in the area of social policy, the assumption that the primary provider of welfare – broadly defined – would be the state. It is not surprising that much of that early work should reflect those issues, which were high on the political agenda (Partington, 1995, n. 17).

Similar political motivations informed early law and society work in the US. Michael McCann, whose work particularly on pay equity reform in the US had significant impact, speaks of an ‘interest early on about law and the struggle for social change’ (Halliday and Schmidt, 2009, pp. 174–86). David Engel, whose article ‘The Oven Bird’s Song’ in 1984 (Engel, 1984) on the ideologies of litigiousness among ‘insiders’ and ‘outsiders’ in a rural American community was indicative of an early concern with understanding the complexity of dispute processing, observed subsequently in an interview:

My experience in devising the project reflected a particular period in Law and Society research. I wasn’t the only one who had returned from having lived in a quite different society. So there was a shared interest in trying to research the undiscovered regions of our own society. There was some tension over what was ‘middle America’ and who were the ‘silent majority’ – all of those fraught political terms that Richard Nixon had used to justify his socially conservative agenda. At that time the paradigm that spoke most powerfully to people who wanted to do comparative sociolegal research was dispute processing. (Halliday and Schmidt, 2009, p. 84)

Law-in-context

Notwithstanding, critiques similar to those made of the ‘law in action’ approach to sociolegal studies were made of the second wave of socio-legal scholarship that approached ‘law in its social context’ (e.g. Hawkins, 1997, p. 5). This wave assumed that law sat autonomously within a ‘social context’. Rarely is there within the law-in-context approach a self-reflective engagement with the nature and scope of that ‘context’. Indeed, as Nelken argued, ‘law’s lack of awareness, or selective awareness, of its context must be treated as an intrinsic, if changing, feature of its social reproduction, rather than as simply the origin of corrigible errors to be excised by the expert or political activist’ (Nelken, 1996, p. 12). One of the challenges for such socio-legal scholarship arising from this insight, Nelken argued, was to question the social and political conditions – and what model of law – it assumed.

The contextualization of law in a social context was, it was claimed, ‘driven primarily, but not exclusively, by questions of social policy’ (Hawkins, 1997, p. 4). Rapid law-reform proposals in the late 1960s generated academic research which served to address a number of deficiencies in the existing mechanisms in legislation and policy:

proposals were often appraised on totally inadequate evidence, and law reform was thought much too serious a matter to be left to guesswork; those making proposals for reform had only limited personal experience or factual information on which to base their ideas; frequently, it seemed, little or no such information existed and reformers were therefore left to their own hunches as to what actually happened in the real world ... [I]t seemed essential therefore to use social scientific approaches to pit legal rules in their social context and enable an understanding to be developed of how legal rules worked. (Hawkins, 1997, p. 5)

Setting aside the idea inherent in this view that social scientific approaches have a privileged insight into a unitary truth, early socio-legal research did indeed have a clear even if not always clearly explicated normative understanding of the socio, but it was necessarily limited. Hawkins’ leading study on enforcement did identify a social context for the decision-making of officers, but not in terms that might later be used to understand the sociality of the decision-making, for example, with reference to ‘legal consciousness’ or ‘actor network theory’. Nor would the application of a concept only of compliance be adequate to explain, as has been done in later studies, the agency of legal system actors where the overarching context for discretion was one of race (e.g. Calavita, 2000). Rather, it was informed by a Realist understanding of law whereby law is what the officials of law – the ‘actors’ – do (Llewellyn, 1951). Taking their cue from interpretative sociology, Oxford researchers, including Hawkins (1984), studied how officials sought compliance with the law (Hutter, 1988). Indeed, such was the prevalence of studies on officials, that Galligan could write in 1995: ‘just how officials make their decisions and exercise their powers, is at the very heart of socio-legal research’ (Galligan, 1995, p. 6). This is largely no longer the case, which shows that the focus of the social unit of analysis in socio-legal studies changes – though some such studies continue to be carried out (see e.g. Halliday et al., 2012).

Contesting the socio

The law-in-action and law-in-context approaches were increasingly challenged on a number of fronts throughout the 1980s and 1990s: by scholars who saw a co-constitutive relationship to law and society (Silbey and Sarat, 1987; Munger, 1998), and by critical theorists (Fitzpatrick and Hunt, 1987) some of whom introduced poststructuralist critiques drawing from Foucault that viewed the social as itself the product of governmentalizing strategies, tactics and practices. Postmodern critiques were accompanied principally by commitments to interrogate and deconstruct social categories such as race (Gómez, 2004), gender and sexuality that previous socio-legal studies had adopted largely unquestioningly. The establishment in 1992 of the journal Social & Legal Studies mirrored these changes, and embraced another emerging concern in socio-legal scholarship – postcolonial and non-Western traditions of thought (see e.g. de Sousa Santos, 1992). The loosening hold of traditional sociological theories witnessed the emergence of new socio-legal approaches, including autopoiesis. Drawing on the work of Luhmann (1989), this posited law as a contained, discursive system with its own logics similar to a biological system. Further diverse approaches in socio-legal studies shifted from the population as a unit of analysis to the body as site of signification, from surveys to personal and collective narrative (Adjin-Tettey et al., 2008), and from behaviour to materiality as objects of social study (Faulkner et al., 2012). Bourdieusian studies have focused on the practices that constitute the social (Manderson and Turner, 2006). And more recent socio-legal scholarship increasingly draws on the work of critical geographers to reveal how power relations and social interests are constituted spatially (Blandy and Sibley, 2010; Layard, 2010; Valverde, 2011) and architecturally (Mulcahy, 2010). This eclectic efflorescence of socio-legal studies, each within its own distinctive concern about and concept of the socio perhaps confirms that socio-legal studies does not (and perhaps cannot) admit a singular and unitary concept of the social. One consequence is that its reflections are often ersatz and offer few new insights into the broader field of social theory. But its impact can also be seen through an imagination that typically eludes traditional legal scholarship. The chapters in this book seek to broaden that impact by drawing on the work of leading scholars in social, cultural and sociological theory alongside leading scholars within the socio-legal field.

Structure of the chapters

Reflecting the diversity of the perspectives on the socio, the chapters are organized in a way to move from the general to the particular. Part I of the book, including this present chapter, engages broadly with the book’s topic, and comprises two further chapters from leading scholars; in the field of legal studies (Silbey) and of social policy (Clarke). These chapters are followed in Part II with chapters (by Norrie, Minkkinen and Shaw) representing more focused analysis of the historical and theoretical dimensions of the theme. Several subsequent chapters in Part III address the role of place and practice in constitution of the social (Nelken, Vel and Bedner, and Sommerlad). These chapters are followed, in Part IV, the final section, by case studies on specific themes, such as gender (Hunter), sexuality (Munt), race (Valdes) and the scope of the social in financial regulation (Wheeler). Each of the chapters offers a distinctive approach to the socio, and a foretaste of each is laid out here.

In Part I, Susan Silbey argues that the socio in socio-legal refers to the social scientific study of law. It ‘involves a doubling of the social, both the subject and the method of inquiry’. Socio-legal scholarship, she avers, investigates the human constitution of law – how human action produces law and legality. Silbey then proceeds to examine what is meant by ‘science’. She finds resonance for social science in Overbye’s paean to science in terms of what he described as its ‘buzzing, testing, poking, probing, argumentative, gossiping, gadgety, joking ... tendentious’ culture (p. 22). Silbey makes a number of claims about social science which she sees as applicable also to socio-legal studies; that it is inherently a critical and progressive act...

Table of contents

• Cover
• Title page
• Copyright
• Contents
• Acknowledgments
• Notes on Contributors
• Part I: Introductory Enquiries: Socio, Social ... Other?
• Part II: Historical and Theoretical Enquiries
• Part III: Place and Practice in the Constitution of the Social
• Part IV: Thematic Variations on the Socio
• Index