Living Law

Studies in Legal and Social Theory

Roger Cotterrell

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351559980
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Living Law presents a comprehensive overview of relationships between legal and social theory, and of current approaches to the sociological study of legal ideas. It explores the nature of legal theory and sociolegal studies today as teaching and research fields, and the work of many of the major sociolegal theorists. In addition, it sets out the author's distinctive approach to sociological analysis of law, applying this in a range of studies in specific legal fields, such as the law of contract, property and trusts, constitutional analysis, and comparative law.

PART ONE
THE SCOPE OF LEGAL INQUIRY

[1]
Subverting Orthodoxy, Making Law Central: A View of Sociolegal Studies

The promise of sociolegal research varies for different constituencies. For some legal scholars it has been a promise of sustained commitment to moral and political critique of law and to theoretical and empirical analysis of law’s social consequences and origins. To continue to deliver on that promise today, sociolegal studies should develop theory in new forms emphasizing the variety of forms of regulation and the moral foundations on which that regulation ultimately depends. It should demonstrate and explore law’s roles in the routine structuring of all aspects of social life and its changing character as it faces the challenge of regulating relations of community not bounded solely by the jurisdictional reach of nation states.

Introduction

What directions should sociolegal studies in Britain take today? To accept an invitation to debate this issue is to risk the possibility that one’s choice of priorities will seem bizarre or just irrelevant to others whose involvement with the field is different. Everyone seriously concerned with sociolegal scholarship has a view of its potential, a view coloured by ambitions or dissatisfactions that first led to involvement with sociolegal work. Institutional work location also affects the nature of each person’s ongoing involvement. An important reason for the vitality of the sociolegal community in Britain, as of the law and society community in the United States of America, has surely been its rich, almost anarchic heterogeneity and its consistent openness to many different aims, outlooks, and disciplinary backgrounds.¹ Perhaps it is undesirable to argue that such a field should tilt in any particular direction. At the very least, anyone expressing general views about the sociolegal enterprise should surely reveal the conditioning background factors that provide a context and perhaps a partial explanation for those views.

Here, briefly, are some of those factors. With many other legal academics, what this writer initially sought from sociolegal work was a set of new perspectives on law to allow a breakout from the claustrophobic world of legal scholarship and education, as previously encountered. Most legal study, in my experience as a law undergraduate and postgraduate at the end of the 1960s, seemed to focus on technicality as an end in itself and was unconcerned with fundamental questions about law’s nature, sources, and consequences as a social phenomenon or about its moral groundings. Value-judgements pervading legal studies cried out for theoretical examination but were routinely treated as obviously correct or simply unrecognized. Policy argument, the ‘unruly horse’² that judges were sometimes forced to ride, was not considered to be ‘real’ legal reasoning and so not given serious attention in the law school, legal study being seen as confined to interpreting rules and analysing their logical or plausible interrelations. Moral argument was to be disposed of quickly so that sophisticated legal thinking could begin. Legislation, an unfortunate necessity, was often presented as a salutary warning about the results of amateur (non-lawyers’) dabbling in lawmaking. To draw seriously on knowledge-fields beyond the contents of the law reports was suspect and the fortress walls of law-as-discipline were well guarded, perhaps because of mute suspicions about their ultimate fragility and law’s still unsure intellectual place in the academy. The common law judge was the intellectual centre of the legal world; and thinking like a lawyer meant, as it seemed, being condemned to a professional state of intellectual tunnel-vision and moral and political impotence.

In those conditions, social science was a flag to nail to the mast, something to proclaim adherence to in trying to navigate an intellectually credible route beyond the world of orthodox doctrinal legal commentary and debate. The effort especially to apply sociological perspectives to law was not a matter of swearing adherence to sociology as a distinct discipline but of rejecting the boundary claims of academic disciplines, including those of law and sociology. It seemed important to approach legal study as an empirical, systematic study of a field of social experience. That did not necessarily demand that every legal academic must conduct empirical research on behaviour in legal contexts but it demanded that as a legal scholar one should become well informed about such research being done and about the resources social science could offer legal studies. It involved finding how best to incorporate social scientific insights and perspectives into one’s own legal scholarship, and supporting and cooperating with sociolegal empirical research initiatives.

Though sociology appeared initially as a special, relatively distinct intellectual field, miraculously provided to save legal scholarship from itself, it later seemed more appropriate to view it as a compendium of methods, approaches, traditions, and aspirations which could be contributed to by many of the so-called separate academic disciplines and by work not easily fitted into any of them.³ Using these resources one could gain distance from doctrinal legal scholarship and so develop different perspectives on it but one could also hope to participate in this scholarship in new ways, bringing a fresh outlook to bear on old problems.

Because legal theory had long had an indefinite licence to range beyond lawyers’ immediate practical concerns with legal doctrine, it always seemed potentially to be a vehicle for developing an understanding of important general aspects of law that traditional legal study ignored. But this depended on jurisprudence as a taught law school subject and legal theory as a research field being infused with social scientific insight. Although sociolegal scholarship had a vital role in studying the social effects of behaviour in legal contexts, understandings of legal doctrine and reasoning also needed altering. On this view, the theoretical study of legal ideas should not be left to legal philosophers but pursued as an empirical inquiry about the conditions, significance, consequences, and potential of those ideas in particular historical conditions. So the fields of speculation that legal philosophy had monopolized, as the theoretical self-awareness of lawyers, should also be a central concern of sociolegal research. In this way sociolegal studies would not merely be juxtaposed with traditional legal scholarship but would invade it and begin to reshape it in ways that renewed its vital engagement with the currents of change in society that social scientists studied.

It would be dishonest to pretend that the ideas expressed above were fully developed from the time sociolegal studies first began to seem important to this particular academic lawyer in company with many others. But they indicate long-held convictions about what sociolegal scholarship could offer, and they colour all the suggestions to be made in the rest of this paper about directions in which it might be desirable for the sociolegal field to tilt to some degree.

The Uses of Theory

Phil Thomas has recently written that sociolegal studies should not be ennobled with the title of ‘discipline’ because to do so risks marginalizing sociolegal scholarship in the legal academy and defusing its ‘growing challenges to orthodox legal pedagogy, traditional research areas and methods’⁴ by setting it apart. The temptation to seek status by building disciplinary walls is strong, particularly for new fields of scholarly practice unsure of their identity and overshadowed by powerful, competing knowledge-fields. But the instinct to avoid disciplinary demarcations is likely to be felt strongly by those who took up sociolegal studies as a tool to break open the claustrophobic discipline of law. As sociolegal perspectives seep into virtually all areas of legal scholarship many researchers have stopped worrying about the intellectual criteria of law-as-discipline. Legal scholarship is not weakened by this lack of concern but strengthened and enriched. The same is true for sociolegal studies as they extend their reach, drawing new insights about the legal from whatever intellectual sources seem appropriate.

These views imply no lack of interest in the integrity of the sociolegal field. Strengthening that integrity depends on both an increased sensitivity to its intellectual foundations in classic writings and a sustained effort to develop new sociolegal theory. Sensitivity to intellectual traditions lends perspective to the research culture but the classic sociolegal theorists are still too little valued in the sociolegal enterprise and considered too arbitrarily and marginally. Weber, Marx, and Durkheim receive habitual acknowledgement in current sociolegal scholarship but Georges Gurvitch, Leon Petrazycki, Eugen Ehrlich, Marcel Mauss, Emmanuel Lévy⁵ and other important contributors are not celebrated as sources of intellectual tradition in the way that, for example, Kelsen, Bentham or Austin are in legal philosophy. If sociolegal scholarship is to transform the legal academy, its scholarly traditions need to be strongly present in the pantheon of markers of the progress of thought about law. ‘Who reads Ehrlich, now?’ an American leader of the law-and-economics movement once asked me rhetorically, not concealing his low opinion of other social scientific approaches to law. One might similarly ask, ‘Who reads Austin or Bentham?’ but, in the case of those writers, scholarly effort strongly maintains their place in a recognized intellectual tradition which in turn shapes a certain outlook on law. As students of cultural studies well know, altering or disrupting the classical canon is a powerful way to reorient an intellectual field.

Beyond a sense of tradition, sociolegal scholarship needs more theory addressing the nature of contemporary law. It needs theory to map and organize the sociolegal realm. Again, a comparison with legal philosophy is instructive. Legal philosophy has not obviously contributed directly to the disciplinary self-consciousness of legal practice but it has elaborated lawyers’ perspectives on law and ordered and legitimized general concerns that legal scholars take up. It has reinforced and clarified ideas about the nature of law that lawyers often assume. If sociolegal scholarship is properly unconcerned with disciplinary status it cannot be unconcerned with clarifying its object of study, described conventionally (but, I shall suggest, inadequately) as ‘law and society’ or ‘law in society’. Sociolegal scholarship needs theories appropriate to this task but legal philosophy has not usually produced ideas about the nature of law that take serious account of and are designed to facilitate empirical research on law as a social phenomenon. Indeed, the idea of ‘the social’ and its empirical variability has been largely absent from legal philosophy but it is this idea that needs most centrality in sociolegal theory. Sociolegal theory has the job of bringing the social as an object of rigorous inquiry into the study of law.⁶

Many people argue for less theory, not more, in legal and sociolegal scholarship and some reasons for this are understandable. ‘Grand narratives’⁷ of classic sociolegal theories – their broadest agendas and central unifying themes – seem exhausted. For example, Marx’s and Engels’s vision of a trajectory of world history culminating in the withering away of law and the state no longer seems credible. The concept of formal legal rationality, the primary legal expression of Weber’s great thesis of the rationalization of the modem world, seems unable now to capture the vast diversity of regulatory practices of contemporary law and governance,⁸ evoking instead a (partly mythical) modem age of ‘pure’ legal formality that has passed. And few accept solidarity as a master concept to characterize the structure of societies in the optimistic way Durkheim proposed. If postmodernist and post-structuralist writing has been too uninterested in the projects of empirical sociolegal research,⁹ it has nevertheless performed an important service in linking together many scattered, accumulating doubts about modem approaches to social explanation. Emphasizing the indeterminacy, complexity, fragmentation, and fluidity of social life, postmodernists have shown that across the whole sweep of social theory the main traditions of ambitious schematization of social change no longer resonate with contemporary experience.

This does not remove the need for theory, or for the centrality of social theory in sociolegal studies. Theory provides perspective in a complex, diverse field. But distrust of grand narratives leads to a more modest view of what can be asked of social theory. For example, recent literature on govemmentality,¹⁰ inspired by Foucault’s work, offers no general theory of the social. But it promises new ways of conceptualizing the diversity of regulation in some contemporary societies. It addresses the complex interrelations between, on the one hand, actions of state agencies at many levels as legal-administrative regulators and, on the other, the ‘quasi-governmental’ and ‘private’ disciplinary strategies and normalizing practices that pervade social life. In reconceptualizing regulation, it avoids the increasingly implausible public/private dichotomy in social and legal thought.¹¹ Theory focused on the diversity of contemporary regulation also allows an escape from legal philosophy’s ‘What is law?’ conundrums and potentially highlights regulation’s fluidity, ubiquity, and varied consequences, making it possible to locate whatever we choose to designate as law in a continuum, network or web¹² of regulatory practices and techniques.

Sociolegal theory needs to specify a realm of the legal but not necessarily in categorical fashion. Identifying the legal merely means enabling sociolegal scholarship to determine its own scope rather than to have that scope given by policy-makers. As many sociolegal scholar...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Editor’s Preface
• Dedication
• Introduction
• Part One: The Scope of Legal Inquiry
• Part Two: Sociolegal Theory and Theorists
• Part Three: Interpreting Legal Ideas Sociologically
• Part Four: Law, Morality, Community
• Name Index