Law and Social Change

Sharyn L Roach Anleu

• Publisher: SAGE Publications Ltd
• Year: 2009
• Print ISBN: 9781412945608, 9781412945592
• eBook ISBN: 9781446243688
• Edition: 2
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This is a timely new edition of Sharyn L Roach Anleu?s invaluable introduction to the sociology of law and its role as a social institution and social process.

Discussing current theory and key empirical research from a diverse range of perspectives Law and Social Change gives relevant examples, from various cultures and societies, to provide a sociological view which goes beyond more jurisprudential approaches to law and society.

The book:

• provides coverage of major classic and contemporary social theories of law

• is informed by empirical research drawn from several countries/societies

• includes up to date and relevant examples

This thoroughly updated edition engages with modern scholarship, and recent research, on globalization whilst also looking at related issues such as the internationalization of law and human rights.

It explores recent reforms at local and national levels, including issues of migration and refugees, the regulation of ?anti-social? behaviour, and specialist or problem solving courts and also provides a clear, accessible introduction to research methods used in the socio-legal field.

Direct and wide-ranging this text will be essential reading for students and researchers on social science and law courses and in particular, those taking sociology, legal theory, criminology and criminal justice studies.

1	Introduction: the Meanings of Law

Law is a social phenomenon and has been of interest to sociology since the early days of the discipline. However, much discussion of law has been and remains monopolized by legal practitioners and legal theorists who primarily focus on legal doctrine; they are concerned to analyse patterns, directions and inconsistencies in judicial thinking and decision making. They attend to social factors in discussing the kinds of values reflected in judicial statements and the ways in which judges resolve practical, everyday dilemmas in deciding cases. The enduring emphasis is on analysing appellate cases. Indeed, the sociology of law is more often taught in law schools by law academics (albeit with a strong interest in the social sciences and/or social science training) than in sociology departments. For many sociologists, law is derivative of broader (or more authentic) sociological concerns, for example social control and deviance, or is treated within other substantive areas such as labour relations, the welfare state and social policy, crime, bureaucratic organizations or contemporary family relations. Many sociological definitions of law stress its normative character and are concerned with the responses to behaviour that violates laws. Sociological discussions of law are often limited to discussions of the criminal law, its operation and administration.

Law and sociology are often presented as two distinct disciplines and bodies of knowledge. For example, Cotterrell – a socio-legal theorist – seeks to understand ‘the nature and effects of confrontations between such different fields of knowledge and practice as those of law and sociology ... [that have] quite different historical origins or patterns of development, social and institutional contexts of existence, and social and political consequences’ (Cotterrell, 1986: 9–10). Another commentator disagrees that the common law can be considered a social science because of the two disciplines’ different epistemological approaches: the former relies on adjudication to discern ‘facts’ and on precedent to resolve present disputes, while the latter relies on ‘positivity’, the constitution of knowledge via empirical research and the deployment of statistical analyses (Murphy, 1991: 185–200).

Certainly, the development of law and sociology in western societies occurs within different institutions and bodies of knowledge (as professionally defined). However, they have very similar subject matters: both are concerned with social relationships, values, social regulation, obligations and expectations arising from particular social positions and roles, and the linkages between individuals and society. Almost any aspect of social life can be subject to legal regulation and judicial statements do have similarities with social theory (and often read like social theory). Nonetheless, the substance of law in western democratic societies primarily deals with the regulation of property relationships and the enunciation and protection of property rights. Sociology is more interested in a wider array of social relationships and investigates inequality and power at both structural and interpersonal levels. While jurists are concerned primarily with the activities of courts, especially the process of legal reasoning, sociologists are more interested in the interconnections between law and changing social institutions, political structures and economic conditions and the relationships between legal institutions and other forms of dispute resolution, social control or regulation. At a more individual or micro level, social researchers investigate how various actors – including lawyers, judges, social activists and people in everyday life – experience, use, interpret, negotiate and confront law, legal institutions and legal discourse (Silbey, 1991: 826–9; Travers, 1993).

Social change

Social change is a term sociologists use to describe usually large scale transformations, such as industrialization and the shift from rural agrarian, feudal or traditional societies to modern, industrial societies, the emergence of capitalism, democratization, and most recently globalization. These changes are associated primarily with economic conditions and market forces and have consequences for political, social and cultural activities. Indeed, the formative period of sociology as a distinct discipline was characterized by large-scale economic, political and social transformation. Key nineteenth century social theorists focused on social change at a macro level such as capitalism and its contradictions (Karl Marx), rationalization (Max Weber), and the increasing division of labour (Emile Durkheim) (Arjomand, 2004: 321). More specific theories of social change address the implications of overall, abstract changes for human social relations, the lives and experiences of individuals and their everyday social environments, school, work/employment, families, social control and so on (Hallinan, 1997). Especially during the twentieth century, governments often relied on the law as a route, or resource, to implement desired social change. In part this reflected aspirations for the welfare state and its social reform agenda, including the statutory implementation and bureaucratic administration of social programmes.

A distinction is often drawn between revolutionary social change and evolutionary social change. Revolutionary social change tends to derive from inequalities of various kinds and resulting conflicts which spawn political action, both within and beyond the recognized political institutions. Evolutionary change occurs ‘naturally’ as populations grow, and societies become more complex (Abercrombie et al., 2006: 351–2). A third kind of social change can be imposed from external sources, as in the case of colonization.

In thinking about societies and social change, an analytical distinction between structure and action is often made. Social structures are patterns of actions and behaviour that exist over and beyond the activities and purposes of individuals but in turn depend on individual action for their reproduction and continuation (Sewell, 1992: 3). The idea of structure suggests a fixed, observable, enduring entity, such as a whole society or part thereof, for example the legal system, or the system of inequality. Social structure constrains human activity limiting the scope for human agency, individual choice, responsibility, motivation or intention. This image of structure is most obvious in structural-functionalist accounts that conceptualise society or social organization as constituted by different parts undergirded by the logics of integration and stability. Any change seems to be the natural process of evolution and progress, often toward modern societies characterized by the replacement of tradition and custom by science and rationality (Etzioni, 1966). Either way, social change can bring about instability, conflict and dislocation (see Parsons, 1951).

Weber (1978) observed the relationship between structure and action as paradoxical. For Weber ‘paradox is the defining characteristic of modern life; that is the inevitable consequence of all social action in modernity’ (Symonds and Pudsey, 2008: 229, emphasis in original). Human action establishes and reproduces social structures which in turn confine, or even undermine, that action despite the intentions or motivations of actors. Organizational contexts and everyday routines can militate against the realisation of original goals or the purposes of the social structure. In an important early essay Robert Merton articulates ‘the problem of the unanticipated consequences of purposive action’ (1936: 894). Purposive action is conduct which involves motives and some degree of choice between various alternatives or competing options. For many reasons individuals cannot or do not foresee all the possible consequences – positive, neutral or negative – of their conduct and choices, and thus these are unanticipated.

One significant example of where unanticipated consequences often occur is bureaucratic organization. Putting aside cultural and social variation in the bureaucratic form, Weber’s ideal type of bureaucracy is the quintessential example of legalrational authority: it is bounded by rules, authority is hierarchical and it is oriented to the achievement of one or more identifiable goals, for example, welfare provision, education, justice, or profit. These overarching goals can become displaced from the everyday conduct and choices of employees, in turn limiting the ways that overall goals can be achieved, or redefining or undermining these (Merton, 1968: 249–60). Vaughan (1999) describes the ‘dark side’ of bureaucratic organizations which present possibilities for mistakes, misconduct and disaster with potentially adverse societal consequences. Her (1998) research shows that the National Aeronautic and Space Agency’s (NASA) decision to launch the Challenger space shuttle followed a gradual increment of seemingly minor problems without major damage, which engineers defined as separate, local and within acceptable risk but which ultimately resulted in its explosion after takeoff in 1986.

The example of bureaucracy is significant for understandings of law and social change because the organizations established to implement legal change usually assume some or all of the elements of the bureaucratic form. A new statute may not be translated into the expected or desired social change because of the structures of implementation, especially if these involve a bureaucratic organization, which entails contextual or local practices, values, and viewpoints. An excellent example of this is recent research on hate crimes (discussed in Chapter 8 below). This phenomenon might be characterized as the gap between law on the books and law in action (Jenness and Grattet, 2005).

The notion of ‘structuration’ conveys a dynamic relationship between structure and agency (Giddens, 1976; Sewell, 1992). Social structures, constituted by rules and resources, constrain human agency but also provide opportunities or capacities for creativity, reinterpretation or innovation, which constitute structural change. Human agents are knowledgeable and competent, can mobilize resources (which can vary in accessibility), and are not viewed as over-determined by their location in the social structure. ‘To be an agent means to be capable of exerting some degree of control over the social relations in which one is enmeshed, which in turn implies the ability to transform those social relations to some degree’ (Sewell, 1992: 20).

Understanding law and social change will be complex. Broadly defined, as a set of shared or at least accepted rules governing social interaction, law is a social institution but the way in which law is organized or manifest in different societies varies. Considerable research in the sociology of law attends to legal institutions: the legal profession, police, courts, legislation, and judicial decisions. Many socio-legal studies focus on issues, such as guilty pleas, criminal courts, lawyering or legal services, employment, divorce and family law, within the bounds of nation states and then make comparisons across nation states. Until recently, the legal system was viewed as the primary repository of law and attention was paid to the demarcations between criminal and civil law, the operation of various dimensions of law on citizens, the organization of national courts, and the division of labour between legal personnel: police, the legal profession, the judiciary. Conceptually, legal processes have now been uncoupled from the legal institutions or organizations in which they are typically nested: police do not monopolize policing; governance is not synonymous with governments; law operates within and beyond the legal system; and legal norms and understandings pervade everyday life (Ewick and Silbey, 1998).

Social change and law

Nineteenth century social theorists described a central role for law in understandings of social change. Henry Maine (1888) described social change in terms of the move from status (inherited and prescribed) to contract (individual and voluntary, at least in theory and only available to some members of the society). For Durkheim the prevailing type of law is an indication of the type of society and changes in law signal the nature and type of social change. Weber’s typology of law and legal thought implies evolutionary development and the extension of western rationality and Marx saw law as inevitability intertwined with capitalist economic relations and therefore an impediment to class struggle and revolutionary social change (see Chapter 2).

In the twentieth century, much sociology examined social change within sovereign nation states with clear territorial boundaries and law was viewed as an instrument or vehicle for the implementation of social and economic policy (Dror, 1968). The dominant conception of society was of a bounded system with clearly identifiable and separate subsystems: the legal system, the economic system, the cultural system, the industrial system, the nation state and the family (Beck and Lau, 2005: 527; Giddens, 1990: 64). The systematic study of social change from the mid-twentieth century onwards, particularly in the United States, was aided by the public availability of nationally representative longitudinal data sets collected by federal, state and private agencies (Hallinan, 1997: 3).

At least in the context of the US, and other states with independent judiciaries, a constitutional tradition and the rule of law, the state can be seen as ‘fundamentally legal’ (Skrentny, 2006: 214). Understanding the nation state requires an engagement with law and legal concepts, such as legality, which can enable and constrain state actions (2006: 213–4). In a discussion of the American state Skrentny shows that the relationship between law and the state varies over time and by issue. Sometimes there is no role at all for law and the courts. At other times, there can be a negative role of reducing progressive social options by limiting welfare benefits and safeguarding business/employer dominance through enforcing property rights in a way that spurs on economic development and large enterprises. Sometimes there is a positive role for law with the expansion of welfare rights in the 1960s and 1970s (2006: 218).

There is often a perception, either implicit or explicit, that social change is tantamount to social progress (Connell, 1997: 1519–21). Social movement activists lobby parliaments to enact new legislation and they initiate or support litigation in the quest to have particular judicial decisions overturned. Relying on law as a source of social change is not the sole province of either liberal, radical or conservative politics (Ginsburg, 1981: 541–7). Numerous commentators point out the limitations of a simplistic instrumental approach to legal and social change: the one does not necessarily nor easily translate into the other. However, as suggested above, just considering statutory change or decided cases may not simply translate into anticipated, practical changes.

Increasingly, the study of law and understandings of law and social change will go beyond national legal institutions and focus more on transnational law and legal institutions, which have expanded in size and number since World War II, and significantly in the past decade or so, especially in the wake of the September 11 (2001) attacks in the United States. Some commentators suggest that the sovereign nation state is losing its relevance and regulatory capacity in a global context where a raft of multinational conventions and bilateral agreements bind nation states, where non-state transnational entities such as the International Monetary Fund or the World Bank influences government decisions and domestic policies, and the voluminous movement of capital, commodities and people across national borders increases interdependence especially economic: ‘The major factor contributing to the denationalization of law would be the declining role of the state in the world’ (Glenn, 2003: 843). Others conclude that: ‘Globalization certainly poses new problems for states, but it also strengthens the world-cultural principle that nation-states are the primary actors charged with identifying and managing those problems on behalf of their societies. Expansion of the authority and responsibilities of states creates unwieldy and fragmented structures, perhaps, but not weakness’ (Meyer et al., 1997: 157). The relationships between nation states, globalization and law are discussed further in Chapter 3.

This book adopts a very wide conception of law; it does not restrict its attentions to the activities of the courts or to legal doctrine. It examines various sociological and socio-legal theories of law; considers the legal profession, which in many ways is the gatekeeper to the legal system, with practitioners having considerable leeway and influence in determining legal outcomes; looks at dispute processing and the role of legal institutions and actors; social control, including the operation of the criminal justice system; and social movement activism, especially regarding women and current debates about human rights and their legal recognition. At the same time, the discussion pays attention to conventional sociological concerns, for example the theories of Durkheim, Weber and Marx and their comments on the role of law and legal institutions. The book addresses:

(a)	the social conditions under which laws emerge and change;
(b)	the extent to which law can be a resource to implement social change;
(c)	the kinds of values or worldviews that laws incorporate; and
(d)	the ways in which laws shape social institutions and practices and vice versa.

While Durkheim, Marx and particularly Weber theorized the role of law in society and its interconnections with other institutions, it was not until the 1960s that a distinct subdiscipline on the sociology of law emerged (Schwartz, 1965: 1). Contemporary research on law in society is multidisciplinary, receiving input from sociologists, political scientists, anthropologists, philosophers, legal scholars and others. Often analyses of law are equated with the discussion of familiar and culturally specific legal institutions, for example the courts and tribunals, judges, the jury system, legislation, the police, the legal profession and prisons. Anthropologists point out that to restrict the discussion of law to familiar legal institutions results in ignoring other forms of law and socio-legal arrangements. In his ethnography of the Trobriand Islands (north-east of New Guinea), Malinowski (1961) adopted wide conceptions of law and legal forc...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface to first edition
• Preface to second edition
• List of figures
• 1 Introduction: the meanings of law
• 2 Law in classical social theory
• 3 Contemporary social theory and law
• 4 The legal profession
• 5 Dispute resolution
• 6 Social control
• 7 Feminism and legal reform
• 8 Rights and citizenship
• 9 Conclusion
• References
• Cases cited
• Index