Sociological Jurisprudence

Juristic Thought and Social Inquiry

Roger Cotterrell

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351683234
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book presents a unified set of arguments about the nature of jurisprudence and its relation to the jurist's role. It explores contemporary challenges that create a need for social scientific perspectives in jurisprudence, and it shows how sociological resources can and should be used in considering juristic issues. Its overall aim is to redefine the concept of sociological jurisprudence and outline a new agenda for this.

Supporting this agenda, the book elaborates a distinctive juristic perspective that recognises law's diversity of cultural meanings, its extending transnational reach, its responsibilities to reflect popular aspirations for justice and security, and its integrative tasks as a general resource of regulation for society as a whole and for the individuals who interact under law's protection.

Drawing on and extending the author's previous work, the book will be essential reading for students, researchers and academics working in jurisprudence, law and society, socio-legal studies, sociology of law, and comparative legal studies.

1
Introduction

Recovering sociological jurisprudence

A view across a century

A century ago it was considered self-evident in the most progressive fora of Western legal scholarship that jurisprudence – juristic perspectives on the nature of law – would and should draw on the then newly emergent science of sociology, as well as on the developing social sciences in general. In a time of rapid legal and social change it could hardly be doubted, except by those who wished somehow to stop the clock of history, that legal scholarship needed resources from the new sciences of social life. By this means, legal thought could learn from social theory and reshape itself to confront the modern challenges for law arising in complex, diverse, indus-trialised Western societies.

At the beginning of the twenty-first century, however, social science has lost much of the lustre that, in its pioneer decades, attached to it as a new set of resources for understanding social life. Economics, not sociology, gradually established itself as the most prestigious among the various social sciences that could be called on to inform policy analysis. It seemed to offer objective technical knowledge to inform the management of modern capitalist societies, their increasingly elaborate financial systems, and eventually their interactions in a global system – this system appearing to have its own dynamics that have come to be called the processes of globalisation. But even economics – despite being attractively, from the policymaker’s point of view, oriented to ‘efficiency’ – has now lost much of its prestige in many quarters as it has seemed to fail in predicting far-reaching economic crises and offering clear solutions to them or ways to prevent their recurrence.

Sociology was once seen as the master social science, embracing all others, because it studied social relations in general or ‘society’ as a whole, rather than specific aspects of society (e.g. the economy or polity) or specific types of social action (e.g. economic calculation). But it has tended to retreat from its early ambition to develop firmly empirically oriented, historically grounded social theory, that is, theory that could map the broad contours of social change, the basic frameworks of order and cohesion enabling societies to exist, and the shifting patterns and structures of social relations. Instead, sociology has become, to a large extent, a fragmented intellectual discipline, split into distinct specialisms (e.g. sociologies of race, gender, class, sexual orientation, work, education, organisations, politics, religion, deviance, family life, popular culture). And the field of social theory has often been relinquished to philosophical speculation.¹

However, insofar as jurisprudence has been seen as theoretical knowledge aimed at giving jurists an overall perspective on law in general (at least, law as understood in the legal systems the jurists serve), ambitious empirically oriented social theory, giving a perspective on social existence at large (not any particular region of it), has always been seen as potentially the most useful sociological contribution to jurisprudence. The generality of social theory’s perspective on social life could mirror and inform the generality of jurisprudence’s perspective on the whole life of law as jurists encountered it. Jurisprudence, on this view, ought to be able to draw on empirically oriented social theory to put its perceptions of law into a larger socio-historical perspective, just as it ought to draw on various strands of philosophy to put them into a broader intellectual, political, and ethical context.

Amenable to these ideas, jurisprudence, a century ago, looked to sociology for perspective. Thus, the early outlook of Roscoe Pound’s sociological jurisprudence was significantly influenced by a broad idea of ‘social control’ (Pound 1942), especially as expounded by the pioneer American sociologist Edward Ross (Ross 1901; Hunt 1978: 19–20). Ross analysed types of such control (e.g. public opinion, custom, education, personal beliefs, moral sentiments), which he saw as guaranteeing the cohesion of social life in modern societies. He identified law as especially important among them – ‘the most specialised and highly finished engine’ of social control (Ross 1901: 106).² Thus, for jurists seeking to locate their subject, law, in a larger intellectual universe, sociology could seem to offer the potential to tie legal scholarship firmly into much wider regions of social inquiry; and it could validate law as an important topic for social analysis. As the epitome of a new kind of social inquiry offering enlightenment about the nature of contemporary society, sociology could help to place jurisprudence alongside the other leading sciences of modern life. To the extent that jurisprudence was sensitive to the new currents of social science, it had the prospect of being supported by them.

Today, sociology can still perform something of this integrative function for jurisprudence but only if it is appreciated just how radically the context for this has changed. Current resources of sociology for law are entirely different from what they were when the idea of a sociological jurisprudence was introduced in the Anglophone world and explored in continental Europe in the decade before World War I.³ Also, the nature of jurisprudence – its scope, tasks and relation to other spheres of knowledge – is now understood very differently. The idea of jurisprudence as the jurist’s theoretical understanding of the nature of law needs much clarification after a century of transformation of legal theory and of reassessment of the resources on which it can draw.

Sociology in the study of law

Sociological jurisprudence was, and remains, an enterprise of jurists appealing to social science for aid in their own projects of analysing legal doctrine and institutions and improving juristic practice. But social scientists interested in law have certainly not remained content just to be on call to serve such juristic purposes. Sociologists have taken law as a topic of research for their own disciplinary projects. The special scientific enterprise of sociology of law evolved during the twentieth century, initially as a mainly speculative, theoretical inquiry built on the ideas of such thinkers as Karl Marx, Émile Durkheim, Max Weber, and Ferdinand Tönnies and, later, Georges Gurvitch, Talcott Parsons, Theodor Geiger, and Niklas Luhmann. However, from around the midpoint of the twentieth century, in the United States, Europe, and elsewhere, detailed empirical studies of the working of legal systems began to proliferate – especially studies of courts in operation, the varieties of lawyers’ practice, the work of administrative and enforcement agencies, the processes of law creation, and citizens’ experience of law. This research – often now termed ‘law and society’ scholarship or sociolegal studies – soon drew on the resources of all or any of the social sciences and has flourished especially in Anglophone countries. Law has become a major focus for empirical social scientific research. But this burgeoning research enterprise has rarely made links with jurisprudence.

As sociology of law has increasingly drawn on the social sciences at large, it has seemed unimportant for most purposes to distinguish it from explicitly multidisciplinary ‘law and society’ or sociolegal studies. So ‘sociology’ as a resource for research on law is now often seen in practice as a ‘transdisciplinary’ form of sociology. In other words, it is a compendium of theory, methods, and traditions of inquiry that, while certainly owing most to sociology’s heritage as an academic discipline, is not tied to the protocols, priorities, and professional outlook of that discipline or any other. Instead ‘sociology’ in this context can be taken to refer to any inquiry that seeks to study some facet of the social world (for example its legal aspects) systematically and empirically, with a serious concern to identify social variation (Cotterrell and Selznick 2004: 296) – that is, the characteristics that distinguish social environments from one another – and the effects and causes of that variation. This is the way in which sociology is understood in the context of this book.

While most sociological study of law, in this sense, has studied observable social action (e.g. the practices of lawyers, police, administrators, legislators, litigants, or citizens seeking informally to resolve disputes or get redress), there is no reason why legal ideas cannot be studied sociologically. Indeed, they should be so studied, if socio logical inquiry is to be able to portray law realistically as practice and experience. It is possible, for example, to examine why and how legal ideas emerge in particular times and places, why certain issues become legally significant while others do not, why legal doctrine develops in certain directions rather than others, why legal ideas sometimes seem to reflect social change and sometimes seem to resist it. Sociology can, in such ways, illuminate the progress of legal thought in particular sociohistorical contexts and offer insight into legal problems.

There can – and should – be a sociology of legal ideas, and it can even be said that sociology of law is not complete without it. Sociologists need to study law as doctrine (rules, principles, concepts, values) as well as law as a focus for official or citizens’ action if they are to be able to take into account juristic understandings and engage with law as normative ideas informing practice and experience.

Crucially, however, a scientific sociology of legal ideas is not, in itself, sociological jurisprudence. While in practice there might be much overlap in approaches and results, these are in essence different projects. A sociology of legal ideas has to justify itself as a disinterested, explanatory, social scientific study – although one that may often produce knowledge of great juristic interest. It is true that legal scholars have contributed to the development of sociology of law, turning themselves into social scientists for the purposes of inquiry. And sometimes their intention in doing so has been to produce scientific knowledge of the social character of law that might be juristically useful.⁴ But sociological jurisprudence as a scholarly enterprise cannot purport to be a disinterested social science. It is necessarily always in the practical service of the jurist. Today, as a century ago, it needs to be understood not as a science in itself but merely as a way of doing jurisprudence, a way of intellectually informing juristic practice, contributing to the fulfilment of practical juristic tasks.

In this perspective, sociology, like philosophy, history, or any other field of knowledge, is just a resource on which the jurist – magpie-like – can draw for inspiration and enlightenment in the practical tasks of making law work. Jurisprudence, seen in this way, is not an academic discipline but a kind of bricolage – an assembly of bits and pieces of insight about law that can ultimately be of potential value for juristic practice, putting it into a broadening perspective.

This view of jurisprudence is developed in Chapter 4. A full justification of it, however, depends on an understanding and defence of the very specific role of the jurist which it presupposes. Chapter 3 is devoted to exploring this role. And, as a preliminary to that, an even more basic inquiry has to be pursued: it needs to be asked what special expertise jurists can and should claim and how far their expertise is to be understood as the (complex and perhaps elusive) expertise that every lawyer professes. So, in Chapter 2, the nature of lawyers’ expertise is considered, and this exploration sets the scene for the discussion in the following two chapters of the juristic role – presented as an ideal type, not as an attempt to generalise about jurists in all times and cultures. Then, in Chapter 5, discussion returns to the question of the place that sociological inquiries can and should occupy in juristic practice.

In the rest of the present chapter, and as a prelude to these further discussions, two remaining questions need to be answered. First, how does the general conception of the nature of jurisprudence introduced earlier and elaborated later in this book correspond with currently dominant views of theoretical inquiries in law? In other words, how does jurisprudence, at least in the contemporary Anglophone world, stand? Second, what can be learned about the possibilities for new linkages between jurisprudence and sociology today from past experience of efforts to develop a sociological jurisprudence? What is worth retrieving (or perhaps reinterpreting) from this historical experience, and what past mistakes need to be avoided (or perhaps reassessed in the light of changed conditions for both jurisprudence and social science today)?

Jurisprudence declining, theory flourishing?

‘It is ironic that at the same time that jurisprudence in the sense of a formal subject for study seems to be vanishing from the sight-line of the law school, theory has become more and more important to the legal academic’ (Leith and Morison 2005: 147). This view, recently expressed in a United Kingdom context, entails two claims, both controversial but both substantially correct.

The negative claim is that jurisprudence as a taught subject for prospective lawyers has lost its way. Its purpose has become unclear and therefore its position in legal education has become uncertain. Indeed, this uncertainty may always have existed. A general, rather vague idea of jurisprudence as the ‘lawyer’s extraversion’ (Stone 1968: 16) – that is, a theoretical perspective affirming the unity of the juristic craft while linking it to larger bodies of knowledge and wider culture – might have significance; in certain circumstances it might help to enhance the status of lawyers’ legal thought and practice in both professional and political terms (Cotterrell 2003: 11–13). But jurisprudence has perhaps become less amenable to these kinds of professional and political uses – whatever their significance in the past – as it has been transformed in the Anglo-American legal world in the second half of the twentieth century into a self-consciously professionalised legal philosophy. As such, it presents itself as a branch of philosophy seeking legitimacy from the academic discipline of philosophy, rather than from any assumed direct practical relevance to lawyers’ professional experience and thought. In Chapter 4 this transformation of jurisprudence into a subfield of philosophy is analysed and it is argued that while the benefits of this development in terms of philosophical credibility and status may be undeniable, the consequences for jurisprudence as a resource for jurists have been much less beneficial.

If legal philosophy essentially seeks intellectual legitimacy from the discipline of philosophy rather than from the requirements of lawyers’ legal studies, its position in the law school is likely to be insecure. As jurisprudence in the law school curriculum has significantly allied itself with academic philosophy (for which law is just one topic for philosophical study among others) its relevance for juristic legal studies has become uncertain. Insofar as legal philosophy chooses its topics of study for their philosophical interest rather than for their juristic importance in the world of legal practice, its intellectual orientation can easily appear to be at a tangent to the jurist’s or lawyer’s professional orientation – a situation that has been explicitly recognised (and even welcomed) by some leading legal philosophers.⁵

The argument developed in subsequent chapters of this book is certainly not that contemporary legal philosophy is unimportant to jurisprudence; it is merely that these intellectual enterprises should not be confused. Jurisprudence is too important to be allowed to wither because its purpose has ceased to be understood. The decline of jurisprudence might easily appear as an unacknowledged marker of the loss of a clear, unambiguous recognition of the distinctive responsibilities – intellectual, ethical, political – of juristic work itself. The place of jurisprudence in the formation of the lawyer ought to be, amongst other things, a reminder that training in the arts and crafts of legal practice is not only a matter of technical efficiency in the interpretation, manipulation, and organisation of rules (important though that technical competence is).

It should be a means of affirming that (i) for all lawyers law is ultimately to be understood as involving value choices (expressed especially in the form of legal rules) for which they must take responsibility, and (ii) that the integrated, value-oriented idea of law (complex, fluid, and variable as that idea is) is something to be nurtured and endlessly rethought by those legal professionals who are willing to undertake the role and responsibility of jurists.

Much of what follows in this book – especially in the chapters in Part I – is intended to elaborate this now often underemphasised idea of a specific juristic consciousness. It follows that jurists – for whom jurisprudence is a necessary theoretical resource – are certainly not restricted to academic specialists who profess jurisprudence as a distinct law school subject. Indeed, to the extent that taught jurisprudence has been turned into professionalised legal philosophy, jurists will not necessarily and certainly not always be found among self-id...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Preface
• 1 Introduction: recovering sociological jurisprudence
• PART I The juristic point of view
• PART II Transnational challenges to juristic thought
• PART III Legal values in sociological perspective
• References
• Index