Beyond Law in Context

Developing a Sociological Understanding of Law

David Nelken

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351955607
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This intriguing collection of essays by David Nelken examines the relationship between law, society and social theory and the various ideas social theorists have had about the actual and ideal 'fit' between law and its social context. It also asks how far it is possible to get beyond this mainstream paradigm. The value of social theorising for studying law is illustrated by specific developments in substantive areas such as housing law, tort law, the law of evidence and criminal law. Throughout the chapters the focus is on the following questions. What is gained (and what may be lost) by putting law in context? What attempts have been made to go beyond this approach? What are their (necessary) limits? Can law be seen as anything other than in some way both separate from and relating to 'the social'? The distinctiveness of this approach lies in its effort to keep in tension two claims. Firstly, that social theorising about legal practices is vitally important for understanding the connections between legal and social structures and revealing what law means and does for (and to) various social actors. The second point is that it does not follow that what we learn in this way can be assumed to be necessarily relevant to (re)shaping legal practices without further argument that pays heed to law's specificity.

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Can Law Learn From Social Science?^*

Introduction

In this paper I shall be discussing a fundamental problem in the relationship between law and the social sciences. Many social scientists have pointed out that the “pull of the policy audience” in legislative and administrative exercises and the confines of practical decision-making in legal settings can compromise the proper development of academic social science and blunt the edge of political critique.¹ The danger is real enough. But they have given insufficient attention to the opposite concern which will be my topic in this article. Here the charge is that the introduction of social scientific styles of reasoning can have ill effects for legal practice by threatening the integrity of legal processes and the values they embody.² How can social scientists be sure that they have properly understood the nature of law or the meaning and point of the legal rules, procedures, and institutions which they attempt to analyze and seek to improve? What warrant can they have that social scientific interpretation, at any level, does not end up creating law in its own image? If this is a genuine risk, what implications follow for the way law should learn from social science? I shall argue that there are no easy answers to these questions even, or especially, where law apparently welcomes contributions from social science.

I should say at the outset that as a sociologist of law, I am here playing devil’s advocate. It is precisely because I believe that social science does have so much to offer to the understanding of law and society that I see the need to clarify the resistance law has to learning from it. Social scientists have produced a large literature which shows that legal decision-making often rests on questionable assumptions or makes unconvincing claims about cause and effect in social life. Legislators, judges, lawyers, and others often cause harm by acting, in good or bad faith, on the basis of insufficient understanding of the social conditions and the effective possibilities of attaining the results they claim to be seeking through law. Social scientists can, do, and should provide theoretical insights and empirical findings capable of bringing all this to light. More generally, legal education typically gives disproportionate attention to analyzing the finer points of “mandarin” doctrine in the higher courts whilst neglecting the work of lower level courts and administrative decision-making and the processes of popular use and avoidance of law which loom so largely in everyday life. Here too, social scientific research can provide a valuable corrective. My words of caution about the prospects for introducing social science into law are not intended to comfort those judges or legal academics who (still) claim that legal science can be or should be a self sufficient discipline. If law is unable to learn from social science, we might, if we value social scientific methods of fact finding, choose instead to circumscribe the areas of social life in which legal modes of decision-making are applied rather than reduce social science contributions to law.

Social scientists have devoted considerable energy to showing what it is that legal actors do not, or cannot, see about the social context in which they operate. Again, nothing I have to say is intended to undermine such work on its own terms. But they study law, as they do any other phenomenon, in terms of their disciplinary projects. This means that they necessarily use concepts which emerge from and contribute to the further development of their own disciplines.³ The issues I am concerned with here arise when social scientists, or others, seek to introduce social scientific ideas and findings about facts and law back into the legal system without giving sufficient consideration to the way this differs from the laboratory or the academy. This is more than a question of applied versus theoretical science. There are good practical reasons why both social scientists and lawyers should examine the “irrelations”⁴ and potential incommensurabilities between their disciplines and practices if they are to make sense of and improve their everyday collaboration. But what I want to show here is that understanding and explaining the difficulties of such collaboration is itself a theoretical problem which belongs to and extends the terrain of social scientific theorizing about law.⁵ In this article, I shall first seek to show that every way of thinking about the potential contribution of social science to law rests on a controversial philosophical and political position about the nature and role of law (and that it can hardly be other-wise.) I shall then describe three ways of understanding disagreements between law and social science and suggest how these approaches offer clues to explaining why law may have only a limited concern for (social scientific) truth.

From Legal Realism to Postmodernism

For the authors of the leading textbook dealing with what they call “social science in law,”⁶ there is no real difficulty about ensuring that law can learn from social science. Unlike those engaged in what they characterize as “the social sciences of law,” where the goal is the development of science for its own sake, it is enough to be clear that here, by contrast, the role of the social scientist in law is to offer law the benefits of existing expertise, in particular by supplying facts for courts and policy makers to consider in reaching their decisions.⁷ To achieve a mutually beneficial division of labor, however, John Monahan and Laurens Walker do insist that we need to distinguish “factual” from “normative” questions. In practice, they suggest, many questions are mixed and, so, do need to be carefully picked apart. As they put it, “some questions law poses are clear and answerable, for example when the law needs to determine whether the percentage of women hired by a firm is less than their percentage in the overall labor pool.” Other questions “require a great deal of rephrasing,” for example, “is pornography harmful?” Still others, they suggest, are resistant to clarification through empirical research, for example, “is retribution just?”

If this division of labor is to work it is essential for lawyers and judges to know enough about social science to be able to tell the difference between sound and unsound science. Otherwise, they will be unable to tell when it is right to defer to the experts. Monahan and Walker, therefore, first of all, set out to supply guidance on how to read and understand social science arguments. Having done so, they go on to offer illustrations of the wide range of situations in which law can and does draw on social science in the course of getting its facts straight. Thus we are told about the role of social sciences in determining “the occurrence of legal acts,” as in the case of alleged sex discrimination at work. We are explained its part in establishing the “identity of (future, present, and past) legal actors,” for example, in decisions about who requires pre-trial detention. And we are shown its contribution to proving the “state of mind” of legal actors, as in criminal defenses based on stress syndromes. In other chapters, they discuss how social science evidence can be used to improve institutional design where the issues at stake include the ideal form of disputing procedures and the appropriate size for jury deliberation.

The examples offered by Monahan and Walker focus mainly on the use of social science expertise at court and do not begin to cover the full range of existing or potential exchanges between law and social science. But, precisely for this reason, their work provides a valuable starting point for the wider questions I wish to raise in this article concerning the fate of social science truths as they move in legal orbits. In general terms, there is nothing surprising in saying that the relevance of social science depends on the extent to which it becomes subservient to the legal. But, in my judgment, there is still much to be done in working out the implications of this idea. Monahan and Walker themselves, for instance, draw a distinction between what they call “legislative facts,” the general sociological assumptions upon which law rests, and “adjudicative facts,” concerned only with establishing what happened in a particular case. The contrast is important because it points to differences in the responsibilities of legislators and judges and consequently in their openness to scientific evidence. But the authors tell us less about why findings from social science literature about matters of “institutional design” tend to have different implications the closer we get to actual judicial decision-making. A well-know review by a social psychologist, for example, shows the US Supreme Court continuing to refuse to acknowledge scientifically uncontroversial findings about the link between ethnic representation on the jury and jury bias.⁸ Is this mere obscurantism or does it point to law’s choice to exclude certain sorts of knowledge? Within the trial process itself, even Monahan and Walker note that there are different procedural rules for prosecution and defense as far as their being allowed to lead evidence on certain excuses such as rape trauma syndrome (even if truth is by definition indivisible).

If we are to make progress in exploring these questions we will need to focus on the philosophical and political ideas about the nature and role of law which explain how these authors (and those who think like them) go about understanding and drawing the boundaries of social scientific expertise in law. Monahan and Walker, like most empirical social scientists of law, trace their inspiration to the American Legal Realists. Like them, they treat legal decision-making as a branch of social policy which requires similar methods and precision in investigating social facts and engineering outcomes. For Judge Holmes, writing not long after the beginning of the 20th Century, the lawman of the future would need to be not merely an expert in the “black letter law” but also in statistics and economics. Reviewing the recent period, Professor, later Judge, Richard Posner, claimed that the rise of science in law, including the economic approach to law of which he was a pioneer, was an “inevitable consequence of the rise of prestige and authority of scientific and other exact models of enquiry.”⁹

The Legal Realists sought to find better ways of overcoming social problems and solving disputes. They thought of the social sciences as crucial instruments in understanding and controlling situations along functional lines. Even sophisticated legal scholars, such as Karl Llewellyn, taught that law should be seen as a means to social ends, not as an end in itself, and that it needed to be consistently examined in the light of its purposes and effects and of their relation to each other. Once the law is conceived in this way, and inasmuch as it is conceived in this way, the relevance of social science for law is indisputable. In fact some Realists thought in terms of trusting a new type of public servant rather than the courts, though lawyers proved remarkably resilient in heading off this challenge.¹⁰ But increasingly courts were willing to call on social science in support of controversial decisions, as in the famous US Supreme Court decision in Brown v. Bd. of Education¹¹ concerning racial segregation and schooling. Social scientific expertise continues to be important as evidence before the courts, especially in criminal, family, and commercial cases. And this will continue to be true as long as Anglo-American (and other) legal cultures¹² justify themselves in terms of an ideology of “pragmatic instrumentalism” according to which law must also give consideration to the effectiveness of its interventions.

By contrast, many of the more recent developments in Anglo-American legal philosophy, including those informed by social theory, offer a much more complex picture of law. Analogies are more likely to be drawn between law and theology or law and literary theory¹³ than between law and the social and policy sciences. Increasingly, stress is placed on the importance of cultural meaning, stories, and narrative, “justice as translation,” on the role of “law as communication.”¹⁴ Scholars argue that law must be seen as a form of authoritative reasoning aiming to provide a rhetorical coherence to...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Editors Preface
• Introduction
• Part A Only Connect
• Part B Changing the Questions
• Part C Finding the Limits
• Name Index