Law and Society in England

Bob Roshier,Harvey Teff

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136424243
• Edition: 1
• Topic: Medicine
• Subtopic: Health Care Delivery

Tavistock Press was established as a co-operative venture between the Tavistock Institute and Routledge & Kegan Paul (RKP) in the 1950s to produce a series of major contributions across the social sciences.
This volume is part of a 2001 reissue of a selection of those important works which have since gone out of print, or are difficult to locate. Published by Routledge, 112 volumes in total are being brought together under the name The International Behavioural and Social Sciences Library: Classics from the Tavistock Press.
Reproduced here in facsimile, this volume was originally published in 1980 and is available individually. The collection is also available in a number of themed mini-sets of between 5 and 13 volumes, or as a complete collection.

1

Law and Society

The Paradox

The legal practitioner has to cope with the law as he finds it and is naturally inclined to take many aspects of the legal system for granted. Faced with a mass of rules, at times obscure and intractable, he operates on the assumption that they can in principle be elucidated in accordance with the law’s own internal logic. The law presents itself to him as an essentially self-contained body of knowledge waiting to be ascertained and applied. The academic study of law, though less constrained, has also in the main focussed on law divorced from its social context. The academic lawyer has traditionally seen as his main task the exposition and analysis of the law as it appears in statutes and cases. Until very recently, little attention has been paid by lawyers to the underlying processes which help determine the content and form of law, how it functions as a mechanism of social control, and the unintended consequences which it may have.

The relative lack of inquiry along such lines is at first sight surprising. Reflection on law in its social context is as old as the Greeks. In more modern times one can find a wealth of sociological material on the nature of law, admittedly somewhat fragmented and scattered, in the works of the founding fathers of sociology. Durkheim’s theory of social solidarity and his analysis of sanctions were concerned with the ways legal institutions are created and function. The bureaucratic nature of modern societies poses problems about the processing of cases and the proper role of discretion in decision making which can be better appreciated in the light of Weber’s work on bureaucracy and his distinction between formal and substantive rationality. The Marxist stress on the primacy of economic relations and on law as an instrument of oppression challenges more conventional views of the nature of the legal order.

From the field of social anthropology, studies of social organization in primitive societies have highlighted the elusive nature of the distinctively legal. At the same time, the social dimension of law has been a dominant theme in several strands of juristic thought. These include the work of the historical school, with its emphasis on cultural relativism; the call from within sociological jurisprudence to study the ‘living law’ and the ‘law in action’; and the influential American realist movement, which challenged orthodox notions about the legal process in general and legal reasoning in particular. Why has this formidable array of learning never been welded together to create a more clearly defined whole?

The Basic Divide: Solving Problems or Constructing Theories

In working towards an answer to this question, one must first appreciate that the nature of the relationship between law and sociology has been the source of much definitional controversy. The subject matter of what is commonly called the ‘sociology of law’ is simple enough to describe in very general terms. It is concerned with the functioning of law in society and the way in which people behave in relation to the law. More specifically, it investigates the social processes of law creation and the social consequences of law in operation. It is, in short, the study of the interaction between the legal and the social. But within this broad framework, two major and distinct approaches are discernible. On the one hand there are those, not surprisingly lawyers for the most part, who stress the value of socio-legal research as an aid to decision making or problem solving. They will want to know, for example, what outcome may be predicted from legislating in a particular way on race relations, or on the rights and duties of landlord and tenant, or the likely consequences of employing various methods of punishment. They will want to see the results of empirical research on such matters reflected in legislation and in the organization of the legal system and the provision of legal services. Others would deny that such practical concerns are properly termed sociology of law. Law, they would argue, is merely one, admittedly important, form of social control. It may be a valuable source for understanding the nature of social systems generally, but ought not to be singled out as if it were an appropriate subject of sociological study in isolation. The real task of the sociologist of law in this view is the study of the social order in its widest sense. In the same way, though the study of lawyers as a profession may produce useful insights, it is the place of such study within the wider concerns of the sociology of occupations which is seen as the proper interest of the sociologist of law.

The two phrases ‘socio-legal studies’ and ‘sociology of law’ have then, in the words of Campbell and Wiles (1976), ‘been flown as standards in the battle for whatever resources and intellectual or practical prestige might be at stake’ (p.548). They reflect a difference of attitude which is at root ideological. Implicit in the problem-solving approach is an acceptance, to a greater or lesser extent, of the values of the existing social system and a belief in the value of empirical studies in helping to improve it. Its proponents have, for the most part, been concerned with ways of redressing inequalities evident in the system, notably in the administration of criminal justice and welfare law and in the provision of legal services. Their inspiration derives from the liberal ideals of due process and equality of treatment before the law.

The main difficulty inherent in this approach is that where there is structural inequality, the extension of procedural equality is prone to mask and perpetuate substantive injustice. Thus among liberal reformers there has been a tendency to assume that the problem of inadequate provision of legal services can be overcome merely by providing more of them and by making them more easily accessible to those most in need. At the individual level, and in the short term, measures of this kind are undoubtedly beneficial. But to the extent that the problems, legal or otherwise, of the socially disadvantaged result from their relative lack of resources, remedial measures could be seen as merely cosmetic, even counter-productive, if they leave the basic social and economic framework squarely entrenched.

The pragmatic, reformist stance has therefore increasingly come under attack from theorists who aspire to an enhanced understanding of the legal and social order. For those who see the law and its socio-economic setting as problematic, the law ceases to be the main focus of inquiry. Instead, the emphasis is on the structures and processes which dictate or permit its emergence in a particular form. Such a view need not entail an explicit ideology. But it does presuppose that the attempt to improve the system simply by altering its formal rules is doomed to failure, precisely because it ignores the social and economic structure within which the rules operate.

But if the ‘problem solvers’ are open to the charge of sacrificing theory to expediency, their opponents are not without their short-comings. Not least among these, as we suggest later, has been their failure to provide any theoretical framework capable of transcending their ideological sectarianism, or even of achieving an agreed position from which the theoretical inadequacy of the ‘problem solvers’ can be specified.

Other Barriers to Collaboration

The sharp differences of purpose embodied in these competing views of the field go some way towards explaining the lack of coherent development. But there are several additional considerations. Progress has been impeded by the relative insularity of academic lawyers and sociologists when confronted with the prospect of interdisciplinary study. As Schur has put it, ‘Lawyers and sociologists “don’t talk the same language” ’ (1968: 8; see also Willock 1974). Anxious to preserve control in their respective domains, they are mistrustful of each other’s discipline, not just through fear of encroachment as such, but also because of what they perceive to be academic dilution. Where the sociologist might feel that the purity of his theoretical concerns is undermined by the mundane priorities of the lawyer, the latter is disposed to resent constant questioning and cavalier treatment of what he takes to be the hard data of the law. In the case of the legal practitioner the gulf is readily understandable. For him the court is a place where legal disputes are settled, not a structured social situation characterized by role playing. He is impatient of theorizing, interpreting it as a self-indulgent exercise engaged in by someone unaffected by the need to reach a decision between two litigants in the here and now. Faced with the perennial conflict created by the need both for certainty and flexibility in law, judges often feel compelled to rely on an established precedent, even though doubtful of its merits, or of the justice of applying it in the particular case before them. In this respect ‘it is in the nature of law that its devotees are for ever condemned to live in a pre-Baconian world’ (Kahn-Freund 1966: 124).

The sociologist then is disturbed by the lawyer’s readiness to assume that the facts speak for themselves and that the law may be legitimately viewed in relative isolation from the social structure within which it functions. The legal practitioner has traditionally been suspicious of empirical evidence in general, in part perhaps through the fear that techniques which reduce the human element in legal proceedings represent a threat to the autonomy of the legal system. A minor example might be the English judiciary’s aversion to actuarial tables as a guide to the assessment of damages in personal injury cases. The law, fundamentally normative and instrumental, almost of necessity elevates finality in litigation and continuity of legal principle above considerations of strict logic. Unlike sociology, it does not purport to be a descriptive pursuit of the truth.

There have also been many practical obstacles to academic collaboration, not least a sheer lack of mutual understanding. The sociologist cannot be unaffected by the general image of the law as a somewhat arcane pursuit, clothed in impenetrable language. He may feel inhibited by the mass of legal detail of which he is ignorant and by the need to acquire the special techniques involved in legal method. Conversely, many lawyers subscribe to the conventional wisdom that sociological writing consists of high-sounding jargon covering up trite knowledge. Thus Lord Hailsham (1971), while expressing himself in favour of ‘cross-fertilisation at every point between the serious student of civics and the academic and professional lawyer’, has described law as ‘the bony structure of sociology … without which social studies will become the flabby and irresponsible thing that, in the universities, sociology too often is’ (p.624). Nor does it help matters that there is more than a grain of truth in each side’s accusations of mystification.

Law, innately conservative, remains wary of sociology. Sociology, conscious of its relative newness as a form of academic study, has been equally wary of making incursions into a realm which has such a long history and established reputation. Isolationism has been reinforced by the constraints of departmental politics and practical considerations within institutions of higher education. There are powerful forces inhibiting precisely the kind of interdisciplinary approach necessary to stimulate the research and written texts indispensable for academic development and consolidation (Wilson 1973). The scholar who devotes the time needed to acquire expertise in two traditionally separate fields of study risks losing touch with the mainstream of his ‘primary’ field. The difficulties are accentuated when law is involved. This is because of the degree of tacit control exercised by the legal profession over the nature of syllabuses, in return for granting exemption from equivalent professional examinations in the more vocational subjects. Partly as a result of this vocational link, law schools have generally lacked a strong tradition of graduate teaching and research. The Bar Council and the Law Society, representing the two branches of the legal profession, not unnaturally think of law schools as training grounds for legal practice, rather than as sources of research. In consequence, most law students have been loath to pursue courses of no immediate relevance to legal practice.

The Development of the Sociology of Law in the United Kingdom

Yet despite all these barriers to fruitful collaboration, the last decade has seen a sudden growth of interest in Britain in the sociology of law and socio-legal studies, in striking contrast to their earlier neglect (Cain 1974; Campbell and Wiles 1976). In the 1960s one would have searched in vain for courses in the field, and research was minimal; by 1976 twelve university law departments and three social science departments were teaching sociology of law at undergraduate level.

A meeting of academic lawyers in Cambridge in 1967 paved the way for recognition of socio-legal studies on an institutional footing. In the following year, Birmingham established its Institute of Judicial Administration, as an interdisciplinary undertaking. In 1971 the Nuffield Foundation set up a research unit and the Centre for Socio-Legal Studies was launched at Oxford under the aegis of the Social Science Research Council (1972). At around the same time, the Society for Public Teachers of Law formed a separate socio-legal group, which was soon to absorb a study group from the British Sociological Association.

Further testimony of growth has been provided by several publishing ventures. Various new series of books have emerged under rubrics such as Law and Society, Law in Context, and Law in Society, and in 1974 there appeared the first issue of the British Journal of Law and Society. In its report on Legal Education, the Ormrod Committee (1971) stressed the need to broaden legal education so that law students should be able to relate law to the wider context of the social sciences generally, and there have been developments in this direction, sometimes on an interdisciplinary basis. Courses in areas such as welfare law, housing law, consumer protection, planning and the environment, and human rights are now common. A broader social perspective than would be required for purely vocational purposes is now frequently adopted, together with some reshaping of more traditional subjects, to take account of the ‘law in action’ as well as the ‘law in the books’. The challenge has been most directly met in the new style of degrees introduced at the universities of Kent, Sussex, and Warwick, with their major emphasis on the social function and context of law, and by some small-scale attempts to develop clinical legal education, so that students are exposed to actual cases and can, for example, advise clients or represent them at tribunals.

Another contemporaneous development was the increasing interest shown by both professional and academic lawyers in law reform itself. The 1960s marked a turning point in willingness to examine how efficiently laws and the machinery of justice were operating. Considerable impetus came from the publication in 1963 of Law Reform Now (Gardiner and Martin 1963), a major influence on the decision to establish the Law Commissions (1965), with their remit to ‘keep under review all the law… with a view to its systematic development and reform’ (Law Commissions Act 1965). The English Law Commission has expressed the hope that it might ‘harness the social sciences to law reform’ and its establishment put paid to the belief that law reform was ‘something that could be entrusted to a group of legal practitioners, academics and judges in their spare-time moments on Friday afternoons’ (Wedderburn 1965). The main focus of recent socio-legal research in England has been on the provision of legal services, clearly stimulated by the experience of the American neighbourhood law firms from the midsixties onwards. The Civil Rights Movement was then at its height. From 1965 the ‘war on poverty’ included Federal funding of legal services programmes through which a growing number of young radical lawyers represented the underprivileged. By 1973 over two thousand lawyers were working in neighbourhood law firms and there has been a steady stream of research into the nature of their work and the discrepancies which it has brought to light between the law in theory and in action.

This was the background to the demand for improved services in England, outlined in two pamphlets in 1968, Justice for All, a Fabian tract, and Rough Justice, produced by the Society of Conservative Lawyers. Mounting concern about shortcomings in the administration of justice and organization of the legal profession was articulated in works by Zander (1968) and Abel-Smith and Stevens (1967), which condemned the profession for providing an inadequate and outdated service for the general public. In 1971 the Legal Action Group (LAG) was formed. As a pressure group concerned to improve legal services to the community especially in deprived areas, LAG has done much to sustain the momentum for reform, which had not been assisted by the lack of systematic information about the operation of the legal system. The vast mass of evidence accumulated by the Royal Commission on Legal Services (1979) has provided a basis for more informed debate, though the findings of the Report itself scarcely reflect the degree of disquiet expressed (see pp. 199–200).

The Sociology of Deviance and the Sociology of Law

Another major source of the revived interest in the sociology of law came from developments within the academic discipline of criminology, or rather ‘the sociology of deviance’, as it came to be known. In the late 1960s and early 1970s, first in the United States and then in this country, the emergence and temp...