1.1 Introduction
Throughout history, every societyâcertainly every society with a population of even modest size and a structure of even modest complexityâis likely to have had an institution of law and, hence, to have had doctrines adopted by government in accordance with approved criteria for the purpose of controlling or allowing designated human behavior.1 The instant book focuses on doctrines (proscriptions and prescriptions) of law in the United States, but since law is a common if not universal institution,2 the book has potential relevance to other nations, especially nations that are sociologically comparable to the United States. Not surprisingly, in societal systems characterized by some complexity, institutions will be multifaceted, and the institution of law will necessarily present scholars with a wide range of subjects to investigate. Because not every subject can be studied in a single scholarly undertaking, just one subject is considered in the instant book. This subjectâwhich is as intriguing as it is importantâinvolves the reasons that a society has certain doctrines of law rather than others.
The subject that I have chosen to explore stems from the observation that the doctrines of law in a jurisdiction at a particular point in time frequently differ from those the jurisdiction had in the past and are often unlike those in other jurisdictions. Law allowing couples of the same sex to marry, for example, existed in many but not all states of the United States3 before the highest court of the country held that states were required by the national Constitution to permit such marriage,4 and it is also found in numerous European countries.5 In the United States as well as in Europe, furthermore, law that permitted same-sex marriage appeared only after the start of the twenty-first century. A specific doctrine of law can thus be absent in a given jurisdiction at one time but be present at another time and in other jurisdictions.6 Moreover, when it emerges in multiple jurisdictions, a doctrine can spring up at a pace that is quick or at a pace that is slow. In the instant book, the foregoing are assumed to be determined by large-scale forces and conditions that push societies in certain directions and mold the lives of the individuals who populate the societies. If the foregoing assumption is correct, the societal context of law is of inestimable importance to understanding the doctrines that the institution of law employs.
1.1.1 A Macrosociological Treatment of Law
Three questions are accordingly posed when attempting to explain doctrines of law, and although the answer to one question may involve some or many of the macro-level forces that contribute to answering another question, each question is logically distinct. Succinctly expressed, the three questions are as follows:
- 1.What is responsible for the change(s) that a jurisdiction undergoes in its doctrine(s) of law on a topic?
- 2.What accounts at a given point in time for the dissimilarities that exist between jurisdictions in their doctrine(s) of law on a topic?
- 3.What determines how fast jurisdictions adopt a particular doctrine of law on a topic?
These questions, of course, deal with the origin of the content of law. Today, regrettably, the search for the genesis of law frequently, if not typically, begins and ends with a focus on individuals within government, especially prominent legislators and judges, and on issue-oriented individuals and groups outside government, especially those who act as or work through lobbyists. The focus is understandable. As the announcers or advocates of law, the foregoing actors can easily be connected to the proscriptions and prescriptions of law that have been adopted. Moreover, the backgrounds, positions, and activities of individuals and groups have popular appeal; that is, they make âa good story.â Not surprisingly, therefore, the foregoing actors have traditionally been credited or blamed for current law and the advent of new law. When dealing with society-important activities, however, the emphasis on these actors is misplaced.
What discipline should lead the effort to answer these three questions ? Macrosociology has the potential to shed considerable light on the source of proscriptions and prescriptions of law, because it is concerned with the foundation and character of social life. To the extent that the premises of macrosociology are correct, specific individuals and groups they form do not explain the content of law .7 Nor does the political process. Accordingly, although the content of law may be thought to have an easy explanation, it does not. As often happens with a phenomenon whose cause seems evident, conventional analyses are either wrong or superficial, or contain a grain of truth and are misleading. Macrosociological answers to the three questions are instead necessary.
Experience indicates that the degree to which scholarship advances knowledge varies from one line of inquiry to another. (The word âscholarshipâ is used here to cover any systematic effort to understand the nature, causes, and effects of a phenomenon.) If lines of inquiry are placed along a continuum measuring their promise, a few lines are likely to be at one end: They ought not to have been startedâor, if started, abandonedâbecause they employ seriously defective conceptualizations, assumptions, and research designs. The conclusions emanating from this type of pursuit are flawed and, by distracting investigators and consuming resources, hinder progress in scholarship. Most lines of inquiry, however, are probably in the middle of the continuumâthey lead to small steps in the acquisition of knowledge. The remaining lines have the most appeal, of course, because they produce, or have the potential to produce, large steps forward. Among these highly promising lines, I believe, are studies (empirical and theoretical) of the origins of doctrines of law, that is, studies of why jurisdictions have or have had law of a certain content. Unfortunately, studies in this line that employ quantitative information and statistical techniques to analyze it have just recently reached the point where they are numerous.8 Notably, a substantially greater investment has been made in their cousinâquantitative studies of the extent to which the incidence of behavior is affected by lawâand the number of these studies is thus much larger. However, a careful analysis of the studies done on the impact of law leads to the conclusion that the frequency of society-central social behaviors is, in the long run, largely unresponsive to law directed at the behaviors in a structurally complex, democratically governed nation 9âwhich, for the sake of simplicity, I label a âmodern societyâ or a âmodern nation.â
The conclusion that key social activities in a modern nation are not permanently and materially affected by law merits emp...