Law and Society Today

Riaz Tejani

• Publisher: University of California Press
• Year: 2019
• Print ISBN:
  9780520295742
• Edition: 1
• eBook ISBN:
  9780520968400
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

Law and Society Today is a problem-oriented survey of sociolegal studies, with a unique emphasis on recent historical and political developments. Whereas other texts focus heavily on criminal procedure, this book foregrounds the significant changes of the 2000s and 2010s, including neoliberalism, migration, multiculturalism, and the large influence of law and economics in law teaching, policy debates, and judicial decision-making.

Each chapter presents key concepts, real-world applications, and hypothetical problems that allow students to test comprehension. With an integrated approach to theory and practice and written in an accessible tone, this text helps students recognize the dynamic forces that shape the way the law is constructed and implemented, particularly how law drives social inequality.

UNIT 1

INTRODUCTION

Law and Society Today is the first-ever problem-oriented survey of sociolegal studies that smoothly integrates important theories with easily understood real-world examples. It offers the reader a broad overview of law and society after the significant economic and political changes of the 2000s and 2010s, including, among other things, the rise of neoliberalism and the large influence of law and economics in law teaching, policy debates, and judicial decision making. In Unit 1, the reader learns about the unique and important orientation behind this fresh approach. The Introduction explains why a new approach is important today and situates the book amid existing survey books and readers in the law and society community. Chapter 2, “Where Law Meets Society,” explores some of the key issues that arise as law and society both change quickly and struggle to keep pace with one another. Chapter 3, “Comparative Legal Communities,” then broadens these horizons by placing North American law and society in its broader, global context of parent legal families and the diverse nations of the world around us.

CHAPTER 1

Introduction: Legal and Social Change

Gene splicing, presidential tweets, superstorms, and kids with three parents. What do these all have in common? They are all new, and they all combine the powerful changing forces of law and society. Some might have sounded like fiction a generation ago, but today they are almost commonplace. These advances in technology, new norms about freedom of speech, accumulated effects of air and water pollution, and redefinitions of the family all sit at the boundary between what is legally and socially permissible.

The field of law and society, or sociolegal studies, has always been about this interplay of legal and social change. Experts in the field long studied cases where reasonable people were trying to make sense of innovations in law by living them in the real world, or innovations in culture by interpreting them for the law. But over the years, the core books about law and society became relatively fixed even as law and social change seemed to have accelerated. Some emphasized the theories that had been developed without checking these against real-world examples, while others proceeded topically through institutions almost like science books, walking the reader through the various “systems” of law and society as though these could be understood like systems of the body or the physical world. The truth is that legal and social practices are complex because people are complex. And law and society change because people are constantly changing.

Law and Society Today takes change seriously by offering a new approach to this fascinating field. It adopts an integrated approach to theory and evidence, and it incorporates the latest thinking about how communities determine right and wrong by prioritizing legal and social norms. By integrating theory and evidence, the book chooses not to present these in wholly separate sections of text. Rather, it maintains attention to both simultaneously, making abstract concepts and ideas more readily memorable to the reader and taking seriously the “grounded theory” approach of some social science fields. To put it more simply, theory and evidence “flow” together more smoothly in ways not present in other existing treatments. Isn’t that closer to how the real world operates?

Additionally, this book adopts a constructivist approach to the topic that many will find novel. The idea is not to suggest that there is no “real” world but rather to posit that our understandings of it come to us from working with the building blocks of knowledge—things like language, symbols, practices, and beliefs. Experts in fields like anthropology, sociology, literature, and cultural studies have been looking at things this way for a while, so it was time to incorporate their advancements into discussions about law and society. This doesn’t mean we must take for granted that law is socially constructed, or society legally constructed, but it does suggest that we consider those claims as we evaluate the phenomena captured in the chapters below.

Finally, Law and Society Today will strike readers as “new” for taking on the role of economic thought in Western life today. Most in the social sciences and humanities have been calling this prominent role “neoliberalism.” This technical-sounding word simply stands for “market fundamentalism”—the notion that many of our big social problems can be fixed by giving people more freedom, letting them compete to gain greater wealth, and then allowing them to spend that wealth as they see fit. Social security, Medicare, welfare, food stamps, public housing—all of these are considered counterproductive under neoliberalism because ultimate faith lies in the individual person or family to take care of itself. When this breaks down—as it sometimes does—nongovernmental actors are better at handling the solutions. Law and governments should stay clear, because they don’t operate efficiently and don’t encourage returning to individual autonomy. So the thinking goes.

The influence of this thought on law and society in real-world settings has been enormous. In the core study of law, a relatively recent school of thought called law and economics has made substantial inroads in legal education globally so that new lawyers cannot finish their training without exposure, if not conversion, to the supposed wisdom of markets. In social policy, the exact government programs listed above—ones relied upon by millions in the United States and abroad—have experienced deep cutbacks for lack of public support. What I mean is this: faith in markets as the solution to social problems may or may not be well founded, but we should at least agree that it has become deeply influential. It is that deep influence that this new law and society book is able to capture.

Yet this book is not altogether new. Like its predecessors, it maintains an abiding interest in the social justice questions and concepts that have driven law and society conversations for so many years. How does the sovereign power of the state circulate so far out from state institutions? What does it mean that those we imprison for crime are so disproportionately racialized, gendered, and poor? How are categories like race, gender, and poverty themselves created through legal measures against crime? All of these questions run though much of this book; it is therefore faithful to the classic law and society subfields such as critical race theory, prison studies, law and poverty, and civil and human rights. Experienced readers will therefore recognize familiar topics like gender intersectionality woven into the existing chapter on identity, or criminology in the chapter comparing criminal and civil justice systems. The point was not to lose the baby with the bathwater, but to hold the baby in new and enriching ways perhaps more suited to the new future it faces.

When I came to teach law and society to a new crop of undergraduates several years ago, it was clear to me that a reboot for the subject was very much in order. A lot had changed since I was a student. Explaining why, this introductory chapter is divided into two remaining sections. In the first, it maps out in greater detail key sites for sociolegal change. There it describes changes to daily life that challenge existing social and legal norms. It then moves to discuss broader cultural change brought on by an increasingly “diverse” or multicultural citizenry. Next, it describes new developments in technology that push the boundaries of accepted behavior in both law and social life. Building on this, the section looks then at the phenomenon we now call globalization as a fourth major change agent placing stress on existing rules and processes. Finally, following from globalization is a new problem described below as legal pluralism—the idea that multiple legal systems might have to coexist under one single jurisdiction, government, or geographic area. Together, I hope it becomes clear, these changes offer important justification for the ongoing study of law and society, as well as for a revised approach that tries to view it today as a process of “mutual constitution.” As I will reiterate throughout, the book’s general claim is that the “social” role of law is being gradually but increasingly construed as economic—about the maximization of wealth more than the search for what is morally “right.”

As seen below, the many changes confronting us today—for instance, multiculturalism and globalization—have seemed to encourage this shift. The moral basis of law becomes harder to pursue or justify when there are numerous historical, religious, and cultural traditions to choose from. In a diverse society, in other words, who should get to decide right from wrong? The move to economic definitions of “right” appears to escape this problem. There seems to be no “who” required when valuations of right and wrong come down to a basic, mathematical formula about money. Legal decisions favoring the greatest wealth-creating activity, or party, want to appeal to a supposedly universal, human drive toward greater prosperity, comfort, and security. And yet, the clear problem is how to assess prosperity, comfort, and security. For the financially literate today it might mean numbers on the page of a bank or investment account statement. For an older generation perhaps it meant cash money under a mattress. For today’s young people, the comfort brought by greater financial reward may pale in comparison to the discomfort brought by rampant inequality, or global environmental degradation. What benefit are new industrial jobs when the factories they support spew harmful emissions? What is an extra million dollars when the future of human habitation on earth is now in question?

Figure 1.1 George Albert Harris, Banking and Law, mural on Coit Tower, San Francisco, CA, 1934.

These questions were already being posed by indigenous cultures in Asia, North America, Australia, and the South Pacific when they were first contacted by European settlers centuries ago. Yet economic determinism—the notion that the natural world exists for human wealth exploitation—spread through the ages of discovery, colonization, industrialization, and now globalization. Today, it may be the predominant lens through which Western law and policy makers view the world. Law and Society Today invites you to reflect upon this progression, its implications, and its alternatives.

SOCIAL CHANGE

Books such as this often begin with an inventory of “social change.” They remind the reader that the world is constantly shifting and that law must continue to adapt. This adaptation impulse is meant to justify the investment of time and energy in courses on law and society. More often than not, authors of these books are social scientists, most commonly sociologists. For them, “social change” is very low-lying fruit: it is the very same phenomenon that justifies, perhaps more than any other field, sociology in the first place. For this reason, our first response may be to ask why this is uniquely important to law and society. The answer would almost certainly be that “social change” causes an ongoing gap between society and the law meant to govern it.¹

Law and Society Today does not begrudge studies of this gap. But it hopes to add more nuances to its discussion. Any chasm between what law means to accomplish and its actual effect on social practices, relations, and structures—we must recognize—is a product of changes not just in society but also in law itself. If I were a sociologist I might find this statement vexing: Without legal training how would I know what law is, let alone what it was, so that I could observe changes? How could I get inside the minds of legislators, judges, and attorneys, the parties most responsible for bringing about change in the legal system? And why would sociologists give up the notion that society reigns supreme even over legal authority when doing so might mean surrendering the terrain on which sociological expertise is based?

This book’s approach, therefore, is not to discard sociological approaches bu...

Table of contents

• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Unit 1 Introduction
• Unit 2 Legal Constructions of Society
• Unit 3 Social Constructions of Law
• Unit 4 Special Topics of Advanced Sociolegal Change
• Notes
• List of Cases
• Bibliography
• Index