The Place of Law

The Role and Limits of Law in Society

Larry Barnett

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351477369
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

In this stimulating volume, Larry D. Barnett locates a fundamental defect in widespread assumptions regarding the institution of law. He asserts that scholarship on law is being led astray by currently accepted beliefs about the institution, and as a result progress in understanding law as a societal institution will be impeded until a more accurate view of law is accepted. This book takes on this challenge. The Place of Law addresses two questions that are at the heart of the institution of law. Why is law an evidently universal, enduring institution in societies characterized by a relatively high level of economic development and a relatively high degree of social complexity? And why do the concepts and doctrines of the institution of law differ between jurisdictions (states or nations) at one point in time and vary within a particular jurisdiction over time? These two questions, Barnett believes, should be prominent in any study of law. The framework for law Barnett proposes is concerned with activities that are fundamental aspects of social organization, that is, activities that are deeply embedded in social life. His viewpoint is grounded on a body of quantitative research pertinent to the societal sources and limits of law. Barnett argues that this perspective applies only to law in sovereign, democratic nations that are economically advanced and socially complex. In other environments, law's place as a societal institution is less secure. This innovative perspective will do much to enhance understanding and appreciation of the role of law in modern societies.

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1
Introduction

The important thing in science is not so much to obtain new facts as to discover new ways of thinking about them.

William Henry Bragg¹

I. The Study of Law

Humans cannot know with certainty what is real and what is not. They can only aspire to do so, in part because their perceptions are molded not only by the stimuli they can see and hear but also by the assumptions they bring to the stimuli. Since assumptions commonly exist and affect perceptions,² humans frequently take for granted that certain things are real and are inclined to perceive accordingly.³ When this happens, incorrect assumptions are retained. Only when perceptions serve to test the accuracy of relevant assumptions are improvements possible in human understanding of reality.

Scholars, of course, are not immune from the effects of assumptions on perceptions. The rigor of scholarly work reduces error, but it does not eliminate error. In the short run, therefore, scholars may not advance knowledge even though in the long run they are engaged in a self-correcting enterprise. When scholars rely on unsuitable intellectual frameworks, they will include in their studies the wrong explanatory (independent) and/or output (dependent) variables, and they may also employ unsuitable research methods.⁴ Colloquially put, scholars at any particular point in time may get it wrong.

A central thesis of the instant book is that a fundamental defect exists in some widespread assumptions regarding, and hence perceptions of, the institution of law. If scholarship on law is being led astray by currently accepted beliefs about law, as I contend in this book, progress in understanding law as a societal institution will be impeded until another view of law is accepted.

In advancing the above argument, however, I need to point out that the instant book is not concerned with all aspects of law. Rather, the book deals with just two questions—though these questions are at the heart of the institution of law. First, why is law an evidently universal, enduring institution in societies that are characterized by a relatively high level of economic development and a relatively high degree of social complexity? Second, why do the concepts and doctrines of the institution of law differ between jurisdictions (e.g., states or nations) at one point in time and vary within a particular jurisdiction over time? The two questions should be prominent in the study of law, but usually they remain in the background and are not considered. As a consequence, answers to the questions are not sought with the evidence that is available, or can be developed, from well-designed quantitative social science research.

By relying on existing quantitative research and providing some of its own, the instant book suggests answers to the two questions posed in the preceding paragraph and offers a framework for the study of law.⁵ The answers and framework are necessarily tentative, but they merit consideration even though they conflict with prevailing assumptions. Advances in knowledge involve the interplay of ideas and empirical research, and the advances often require the former for the latter.⁶ Thus, where the proposed framework is ahead of existing knowledge, the framework can serve a useful function by guiding future research to test it.

In addition to the preceding caveat, let me point out that this book does not provide an all-encompassing, i.e., “grand,” framework for law. It does not do so for at least three reasons:

1. The framework for law that I propose is concerned with, and only with, law on activities that are fundamental aspects of social organization, i.e., activities that are deeply embedded in social life. The framework is not intended to apply to law dealing with mechanical aspects of a society, e.g., law designating the date by which income tax returns must be filed with government each year and law specifying the length of time a government-issued license is valid for a pet or for the operation of an automobile.

2. The framework for law that I propose is intended to apply only to law in sovereign nations that are economically advanced and socially complex. The framework may not be appropriate for developing nations or for societies with small populations and relatively simple social structures.

3. The framework for law that I propose has been derived from a relatively brief period in history and is evaluated with evidence from that period. However, the character and functions of the institution of law may change from one historical era to another in a society. My framework, therefore, may be useful only in a particular setting at a single point in history.

The second and third reservations above are especially important in evaluating scholarship on law, and they extend beyond the instant book. Assessments of the utility of a framework for or a theory of law must recognize the possibility that the nature and societal role of law are not the same across all societies at a single point in time and are not the same within a single society at all points in time.

A. Scope of Law

An additional matter that must be addressed is the referent of the word “law.” A study of law presupposes a definition of “law.” Of course, every definition is to some extent arbitrary, and a single definition of a word will not encompass everything that everyone would include as a referent of the word. Nonetheless, a useful definition of law can be formulated for this book. Specifically, I define “law” as the formally expressed rules that a government, following accepted procedures, adopts and interprets for the purpose of regulating behavior and organization.⁷ Law, that is, attempts to steer its target. As such, law is a means to ends—a tool that is employed by a society to attain certain goals.

Law as so defined has three key elements. First, a rule for behavior or organization is deemed to be law only if the governing body of a jurisdiction has adopted the rule.⁸ A rule is thus not regarded as law unless it emanates from a government source, viz., a legislative or judicial body or an executive-branch administrative agency. Second, to regulate, a rule must involve (a) expectations for conduct or arrangements in the jurisdiction and (b) sanctions aimed at encouraging conformity to the expectations. While the sanctions can be (and probably most often are) penalties, they may also be rewards. Third, to be “formally expressed,” a rule must be in written form, and government must be responsible for the writing.

While the exact boundary between rules that are law and rules that are not will undoubtedly be uncertain in particular situations, rules that are not law must be taken into account in order to understand the nature of law. Unfortunately, rules that are not law have traditionally been within the province of sociology and anthropology, but their relevance to law should not be ignored simply because of disciplinary lines. The scope of an area of study is fixed only by convention, and at least three reasons argue against continuing to stress just law in scholarship on law.

The first reason, which is important for the political process, is that law evidently does not have the type and magnitude of impact on a society that it is generally thought to have. Instead, rules outside law are likely to be primarily, if not almost entirely, responsible for sustaining social life. Until the limited role of law in the social order is appreciated, law will continue to be viewed as a relatively easy cure for societal ills, and the political process will be driven to satisfy the anxieties of constituents by adding or amending statutes. Emphasis on the political process, however, fails to take into account the appreciable body of social science research indicating that law does not substantially and permanently alter the incidence of behavior patterns in a society.⁹ Because the institution of law is unable to provide effective, enduring solutions to social problems, a society must find these solutions elsewhere (if solutions can be found at all) and must come to appreciate the senselessness of social disorder stemming from politics.

Scholarship on law should consider rules that are not law for a second reason as well. Specifically, the concepts and doctrines of law in a society are shaped by the non-law concepts and doctrines of the society. What exists inside the institution of law depends on what exists outside, and the study of law cannot yield a full understanding of law if non-law rules are disregarded. If the framework I propose is useful, the institution of law operates within a societal context and is inextricably tied to that context. When the societal context of law is neglected, the current and evolving content of law cannot be explained, and the future content of law cannot be predicted.¹⁰

A third reason for including rules beyond the borders of law in studies of law is that rules outside law, and hence rules inside law, are responses to societal conditions. An awareness of rules outside of law thus provides an impetus to research on the societal circumstances that shape the rules of government for behavior and organization in a society. In particular, studies of the impact on law of societal characteristics—i.e., of the relationship to law of jurisdiction-level attributes—are necessary to dispel the belief that important, lasting concepts and doctrines of law arise randomly or are due to individual personalities.

B. Change in Societal Perceptions

Percep...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Chapter 1. Introduction
• Sociological Concepts and Law
• Jurisdiction Properties and Law
• Index