Law and Social Theory

Reza Banakar, Max Travers, Reza Banakar, Max Travers

• Publisher: Hart Publishing
• Year: 2014
• Print ISBN: 9781849463812
• eBook ISBN: 9781782252047
• Edition: 2
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

There is a growing interest within law schools in the intersections between law and different areas of social theory. The second edition of this popular text introduces a wide range of traditions in sociology and the humanities that offer provocative, contextual views on law and legal institutions. The book is organised into six sections, each with an introduction by the editors, on classical sociology of law, systems theory, critical approaches, law in action, postmodernism, and law in global society. Each chapter is written by a specialist who reviews the literature, and discusses how the approach can be used in researching different topics. New chapters include authoritative reviews of actor network theory, new legal realism, critical race theory, post-colonial theories of law, and the sociology of the legal profession. Over half the chapters are new, and the rest are revised in order to include discussion of recent literature.

Section 1

Classical Sociology of Law

REZA BANAKAR and MAX TRAVERS

MOST UNDERGRADUATE COURSES on sociology of law begin with the three nineteenth-century ‘founding fathers’ of sociology: Karl Marx, Emile Durkheim and Max Weber. The two sides in the consensus–conflict debate we referred to in the general introduction take their lead from these theorists, who were writing about the massive social and economic changes that took place in nineteenth-century Europe which we now describe as the emergence of capitalism or modernity. Marx believed that the central dynamic of this new world would be a growing polarisation between rich and poor—between the minority who owned the means of production and the majority who had to sell their labour in order to make a living. The tension between these two opposing interests, Marx predicted, would result eventually in revolution. Weber offers a less deterministic view of human history, but one that places equal emphasis on the competition between different groups for wealth, power and status. Durkheim, on the other hand, believed that industrial unrest was simply a temporary symptom of adjustment and that political elites could reestablish a sense of order and wellbeing through fostering shared values.¹

All three theorists were interested in law and legal institutions, although they regarded the subjects as only one constitutive element of society alongside the economy, political system and cultural institutions. For Marx, the idea of ‘the rule of law’, celebrated by British jurists, was a means of promoting the ideological idea that law benefits everyone, whereas in fact it only benefits the ruling class.² Durkheim took the opposing view that law embodies shared values, and he advanced his famous theory, expressed as a scientific law, on how laws change over time as society becomes more complex. Weber, on the other hand, was most interested in the development of law codes, as one example of a growing rationalisation of social life, and in contrast to both Marx and Durkheim he offered a pessimistic vision of modernity as a soulless ‘iron cage’ with no prospect of liberation through reason or science (since they were themselves partly responsible).

The first contribution by Alan Hunt to this collection contains a summary of Marx, Durkheim and Weber’s ideas on law, but it does rather more than this and is best read as a wide-ranging and provocative statement about the field of sociology of law as a whole. Hunt is provocative, in that he argues that the classical theorists have more in common than is generally realised: they each view law in a ‘constructivist’ way as a tool that can (and should) be used by the state in regulating human affairs. There was, Hunt suggests, a shift in the way intellectuals conceptualised law in the nineteenth century. Whereas in pre-modern times law was either viewed as a ‘natural’ phenomenon, deriving from tradition or ecclesiastical authority, or as representing the ‘will of the sovereign’, the new capitalist industrial economy required a different understanding thereof. Hunt argues that what has become dominant is ‘legal constructivism’ (which he contrasts to the idea of naturalism), the ‘intentional deployment’ of law ‘to promote, secure or defend specific social interests’.

At the risk of oversimplifying a complex argument, Hunt implies that a common concern of these theorists (and also of the legal thinker Henry Maine) was the relationship between law and the state. Marx believed that law would eventually ‘wither away’ after a socialist revolution, but he recognised its importance for nineteenth-century governments as a means of controlling populations and securing the conditions for capitalist economic relationships. Similarly, a major theme in Weber’s writings was the growth of ‘professionalisation and bureaucratisation’, which sustained ‘the stability and security of the new capitalist order’. According to Hunt, Durkheim also saw ‘modern law’ and ‘political democracy’ as the only means of maintaining social solidarity in a complex, industrial society.

Hunt’s chapter ends with some general reflections about law in the modern world, and about the sociology of law itself, which he argues still sees law ‘as a manifestation of state sovereignty’. He contends that the relentless juridification that has occurred during the twentieth century (essentially the growth of the state) has solved many problems but created a reaction against the grip of law. However, initiatives intended to escape bureaucracy and law, such as the alternative dispute resolution movement or the rise of ‘self-governance’, end up promoting further juridification. Modern sociology of law should ‘move beyond the state’ and study ‘new popular forms of engagement that reach out beyond … the classical period of state, law and sovereignty’.

Those familiar with Hunt’s recent work will know that this is very much a neo-Foucauldian argument, and he also draws on Habermas’s idea of the system’s colonisation of lifeworld.³ It is worth adding, however, that each of these theorists can be understood as developing and elaborating a theme that was already present in the writings of Max Weber. Juridification is, after all, one part of what Weber viewed as a process of rationalisation through human history. There is arguably a moral ambiguity in all these writers towards the state, as they could imagine no alternative to liberal democracy, but they were aware that excessive regulation reduced human creativity and freedom.

One thing that will be apparent from the preceding discussion is that classical sociologists were all concerned with how the relationship between law and society was taking shape against the backdrop of the emerging new industrial capitalist society and its counterpart, the modern state. In our second chapter, Javier Treviño offers a different perspective on this issue by reviewing the ideas of three jurists—Roscoe Pound (1870–1964), Eugen Ehrlich (1862–1922) and Leon Petrażycki (1867–1931)— who were also concerned with the role of the state but expressed their disquiet by attempting to develop a science of law. They all shared mistrust of legal formalism, and in the case of Ehrlich and Petrażycki highlighted the limited impact of state law on social relationships in their own countries.⁴

Petrażycki and Ehrlich worked independently of one another, and yet their theories came to overlap partially. Firstly, they regarded social sciences, rather than moral or analytical philosophy, as the foundation upon which a science of law could be built. Secondly, taking issue with the jurisprudence of their time, they refuted natural law theories and contested the assumption of legal positivism that a social norm became a legal rule only if it was posited by the state. The state could not be the primary source of law for the simple reason that its existence presupposed and was conditioned by law. Petrażycki and Ehrlich, each in his own way, argued for an empirically based concept of law which was broader than state law and existed independently of any outside authority. While Durkheim or Weber studied law as part of their concern with the rise of modernity, Petrażycki and Ehrlich explored it in an effort to improve the science of law.

Petrażycki and Ehrlich both lived and worked in the Continental Europe of the early 1900s. An anti-formalist movement, initiated by Oliver Wendell Holmes (1841–1935) and Roscoe Pound, was also taking shape under the banner of ‘legal realism’ during the same period in North America.⁵ Holmes famously declared that the life of law was not logic but experience: ‘[T]he prophecies of what the courts … [did] in fact, and nothing more pretentious’ constituted the law’.⁶ This implied that we could not grasp the law through the exegesis of legal rules and doctrine, but we could do so by attending to how legal authorities interpret and enforce the law and decide upon cases. This sociological insight was elaborated further in the works of Pound, who distinguished between ‘law in the books’ and ‘law in action’—a distinction that continues to inform sociolegal research concerning the discrepancies between the claims of the law and the intentions of the legislature, on the one hand, and the de facto regulatory impact of the law on social behaviour, on the other (this discrepancy is also known as the ‘gap problem’).

There were certain similarities between Ehrlich and Pound’s antiformalism and their belief that social sciences should occupy a privileged position in the study of law, but there were also significant differences. It is worth emphasising that their concept of ‘science’ was rather narrow and, as Treviño emphasises, concerned with the ‘implementation of empirical positivism and induction’. Pound did use Ehrlich’s ideas, as he used many other theories to develop his eclectic approach to legal engineering, but as David Nelken explains, his ‘programme and the conceptual tools designed to further it were very different indeed from those of Ehrlich’.⁷ Although Holmes and Pound were critical of legal formalism, their concept of law recognises state law (or official law) as the law proper, and in this respect it is in line with the ideology of legal positivism. In contrast, Ehrlich’s concept of law is broader than state law and includes non-official law and forms of ordering. The broadness of his concept comes, however, at a price— he is often criticised for vagueness and, to borrow from Treviño again, ‘for lack of scientific rigour’. Furthermore, his theory of ‘living law’ has been misrepresented as a conflation of ‘is’ and ‘ought’ by no less than Hans Kelsen.⁸

There are also similarities between the ideas developed by Petrażycki and Axel Hägerström, who is regarded as the founder of Scandinavian legal realism. Whereas Pound and Ehrlich, as Treviño explains, were familiar with each other’s works and Ehrlich visited Pound in Harvard, Petrażycki and Hägerström appear not ‘to have communicated or exchanged ideas’.⁹ The similarities found between the works of Petrażycki and Hägerström, on the one hand, and Ehrlich and Pound, on the other, provide a key to the intellectual climate which prevailed at the end of the nineteenth century and the beginning of the twentieth century. Two of the central questions raised and deliberated at this time—one regarding the separation of facts and norms (or the distinction made between the facticity and the normativity of the law) and the other concerning the relationship between law and the state—remain with us and continue to inform much of the debate within legal theory.

The extent to which these classical models of law, state and society are compatible and relevant to the study of current social problems would be an interesting issue to consider on a law and society course (which would require some consideration of empirical examples). Naturally, there have been many anthropological studies about customary law and how this relates to state institutions which support Ehrlich’s argument.¹⁰ These studies often demonstrate that state law may only have a limited relevance to how people in developed, industrial societies conduct many aspects of their everyday lives. Interestingly, the concern...

Table of contents

• Cover
• Title Page
• Contents
• List of Contributors
• Introduction
• Section 1: Classical Sociology of Law
• Section 2: Systems Theory
• Section 3: Critical Approaches
• Section 4: Law in Action
• Section 5: Postmodernism
• Section 6: Law in a Global Society
• Acknowledgements
• eCopyright