Law, Culture and Society

Legal Ideas in the Mirror of Social Theory

Roger Cotterrell

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351217965
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book presents a distinctive approach to the study of law in society, focusing on the sociological interpretation of legal ideas. It surveys the development of connections between legal studies and social theory and locates its approach in relation to sociolegal studies on the one hand and legal philosophy on the other. It is suggested that the concept of law must be re-considered. Law has to be seen today not just as the law of the nation state, or international law that links nation states, but also as transnational law in many forms. A legal pluralist approach is not just a matter of redefining law in legal theory; it also recognizes that law's authority comes from a plurality of diverse, sometimes conflicting, social sources. The book suggests that the social environment in which law operates must also be rethought, with many implications for comparative legal studies. The nature and boundaries of culture become important problems, while the concept of multiculturalism points to the cultural diversity of populations and to problems of fragmentation, or perhaps to new kinds of unity of the social. Theories of globalization raise a host of issues about the integrity of societies and about the need to understand social networks and forces that extend beyond the political societies of nation states. Through a range of specific studies, closely interrelated and building on each other, the book seeks to integrate the sociology of law with other kinds of legal analysis and engages directly with current juristic debates in legal theory and comparative law.

Part 1
Perspectives
(Legal and Social Theory)

Chapter 1
Law and Social Theory

The relationship between legal studies and social theory has been ambivalent and often difficult. Why is this so? What is the value of social theory in legal studies today and why is law an important social phenomenon for social theory to consider? This chapter addresses these questions and considers recent challenges to the projects of social science and social theory. It also introduces the special problems posed for theoretical studies of law by globalization and the growth of transnational law.

What can social theory contribute to legal studies? And what place does law have as a concern of social theory? Three or four decades ago, when ‘law-and-society’ (sociolegal) studies were first becoming a lively, popular focus for research, defining the relations of law and social theory meant mainly locating law’s place in the theoretical traditions of the academic discipline of sociology, and asking what those traditions might offer the study of law. Now, however, social theory is not the preserve of any particular academic discipline. It has to be defined in terms of its objectives rather than particular traditions that have shaped it.

Law in Classic Social Theory

Social theory is systematic, historically informed and empirically oriented theory seeking to explain the nature of ‘the social’. And the social can be taken to mean the general range of recurring forms, or patterned features, of interactions and relationships between people. The social is the ongoing life of human beings lived alongside and in relation to others; the compendium of institutions, networks, patterns and structures of collective life resulting from human coexistence. So, it is the collective life of human groups and populations, but also the life of individuals insofar as this is shaped by their relation to those populations or groups. The social is a realm of solidarity, identity and cooperation, but also of power, conflict, alienation and isolation; of stable expectations, systems, custom, trust and confidence, but also of unpredictable action, unforeseen change, violence, disruption and discontinuity.

Described in these expansive terms, the social seems bewilderingly general as an object or field of study. Debates about its nature and significance are fundamental today in assessing the significance of social theory itself. And the essence of the social has been seen in social theory in radically different ways. For example, in Max Weber’s (1968) classic sociological writings it appears as a limited number of distinct types of social action combined in innumerable ways to give rise to what we recognize as ‘capitalism’, ‘bureaucracy’, ‘domination’ and all the other seemingly solid structures of the social world. Sometimes the social has been seen in terms of an evolution of human relations – for example in Marcel Mauss’ (1990) famous analysis of the significance of gift relationships. Its essence has also been found in different types of cohesion of human populations (Durkheim 1984) or sociality or bonding between the members of social groups (Gurvitch 1947). Sometimes it has been understood as categories or institutional forms in terms of which individuals interrelate – for example, in Georg Simmel’s (1971) analyses of ‘the stranger’, ‘the metropolis’, ‘fashion’, ‘conflict’, ‘exchange’ and other phenomena.

The object that has served – implicitly or explicitly – as the primary focus for most social theory is society, conceived as a unified totality in some sense, so that the study of how that totality exists could be distinct from, though related to, the study of politics, law, the economy or other more specific kinds of social action or experience. Society in this sense is ‘the sum of the bonds and relations between individuals and events – economic, moral, political – within a more or less bounded territory governed by its own laws’ (Rose 1996: 328). Even where social theory has not treated society directly as its object, its characterizations of the social assume that social phenomena cohere in a significant way: that social life forms a fabric of some kind; that it has continuity and scale and that particular exemplifications of the social relate to larger patterns, even if their exact limits or boundaries may be variable or hard to specify. The social includes class, race and gender relations, and specifically economic relations, for example, but social theory assumes it must treat all of these as components or aspects of more general patterns or features of human interaction, and that its consistent focus must be on that generality. The social is always assumed to be in some sense intelligible as a unity.

In the classic social theory of the late nineteenth and early twentieth century, ‘society’ was mainly typified by the politically organized and territorially bounded society of the modern Western nation state. Given this position, it is not surprising that a strong sensitivity to law is found in the most ambitious and influential contributions to this theory – the work of Emile Durkheim, Weber and Karl Marx. The reach of society could be seen as paralleling the jurisdictional reach of nation state legal systems. As social theory examined the general social relations and structures comprising society, it encountered modern law as a society-wide system of definition and regulation of these relations and structures. In a sense, law and social theory competed in characterizing modern society, but law could be treated in social theory as exemplifying certain structures and patterns fundamental to this society.

So, for Durkheim, the substance of modern law (particularly contract, commercial, property and criminal law) and its processes expressed the particular characteristics of modern social solidarity, by which he meant the manner in which modern society was integrated and given a sense of unity despite its increasing complexity, changeability and diversity. A study of the development of law across the centuries could show how the structures of solidarity allowing modern society to cohere had gradually formed (Durkheim 1984). His conclusion was that the only value system that could integrate modern societies – and so must be the moral foundation of all modern law – would be one requiring universal respect for the autonomy and human dignity of every individual citizen (Durkheim 1975a; Cotterrell 1999: 103–47).

In a completely different way and using different methods, Weber also securely linked the study of law with the study of the social in its modern forms. Modern law exemplified a kind of rationality mirroring and running parallel with the rationalization of other aspects of life in the West. While formal legal rationality was a distinctive mode of thought and practice, it could be seen as part of a far wider rationalization of the modern world. The study of legal rationality’s development and its interrelations with other varieties of rationality (especially in economic action, administration and politics) could, in Weber’s view, provide major insights into the nature of the social in the unique forms it had taken in the West (Weber 1968: Part 2, Chapter 8).

Marx, seeking to analyse the nature and destiny of capitalism, saw law as in one sense superstructural, a product rather than an engine of capitalism’s trajectory as a mode of production and as the overall structure of the social in the modern West. But he emphasized law’s role in defining social relations, repressing class unrest and helping to constitute the ways of thinking – above all in terms of property and contract – that serve as fundamental ideological supports of capitalist social relations (Cain and Hunt 1979). Thus, like Durkheim and Weber, Marx saw a need to take account of the development of law to identify the way it produced particular ideas, ways of reasoning or forms of practice at certain stages in history.

So, each of these writers saw law as essential in transforming the social – establishing foundations of modern society, however differently they might characterize this modernity in their work.

These brief comments may be enough to illustrate two points: that the concept of modernity has often, in practice, been inseparable from that of society in the vision of social theory and that law was often treated in classic social theory as, in some way, a crucial marker, component or agent of the coming into being of the modern world. More recent social theorists have often treated the emergence of a certain kind of legal system as crucial in this sense. Talcott Parsons, for example, saw the emergence of a ‘general legal system’ – cutting across all traditional special statuses and providing a universal system of rights and obligations – as ‘the most important single hallmark of modern society’ (Parsons 1964: 353). But we shall see later that the concepts of modernity and society, so central to social theory, are at the heart of debates surrounding it as an enterprise today.

Leaving aside these debates for the moment, what has social theory in its classic or traditional forms been able to offer legal studies? If social theory is abstract and broad in scope, law as a practice, and often as a field of study, has been said, by contrast, to be wedded to the ‘method of detail’ (Twining 1974), focused on particularity and immediate problem-solving. Social theory in general has claimed that philosophical analyses, reflections on historical experience and systematic empirical observations of social conditions can be combined to explain the nature of society. Social theorists’ considerations of law are coloured by this amalgam of philosophical, historical and observational orientations. As a by-product of its general concerns, social theory has often assessed law’s capacities, limits, conditions of existence and sources of authority and power.

Its attraction for some legal scholars has been that its perspectives on law have been much wider than those the legal specialist alone could usually be expected to command. So, social theory has been called on in sociolegal studies to escape the limits of law’s method of detail as well as to counter narrow social scientific empiricism. The promise has always been to broaden social perspectives on law. The corresponding risk has always been that the broad perspective loses the richness and specificity of particular experiences or practices of ‘the legal’. The method of detail may need supplementing but has its value nonetheless.

Despite these claims for social theory’s usefulness to legal studies and the prominent presence of law in the classics of social theory, the link between legal studies and social theory has usually been tenuous. That various changes in both law and social theory are bringing about a greater mutual dependence will be a main argument later in this chapter. Nevertheless, until quite recently, the relationship could be characterized as predominantly one of disinterest or token acknowledgment.

Despite the example set by the classic writers, social theorists have often doubted whether law is important enough or sufficiently identifiable as a distinct social phenomenon to deserve special consideration in any theory of the social. Could most of what needs to be analysed be treated in terms of concepts such as administrative action, state coercion, social norms, social control, ideology, reciprocity, conformity and deviance, bureaucratic norms or custom? Law, as such, might not need theorizing: that could be left to jurists for their own purposes. The term ‘law’ would remain for the social theorist only a common-sense label that might usefully designate clusters of phenomena to be explained theoretically without essential reference to it. In any event, law’s identity and significance vary considerably between different societies. And general conceptions or definitions of law are dominated by juristic perceptions which most social theorists have not sought to upset.

For example, social theorists have rarely adopted the radical reformulations of the concept of law associated with what is now called social scientific legal pluralism (Griffiths 1986; Merry 1988). Legal pluralism in this sense explicitly denies that juristic conceptions of law are universally adequate and adopts some wider conception of law that can embrace, for various analytical purposes, phenomena that the lawyer would not recognize as legal – for example, private or ‘unofficial’ norm systems of various kinds. Among major social theorists only Georges Gurvitch stands out as having radically rejected juristic conceptions of law in favour of an intricate, fully elaborated theory of legal pluralism integrated into his broader social theory. Significantly Gurvitch reached this position on the basis of his early sociolegal and philosophical inquiries (Gurvitch 1935; 1947), rather than as a by-product of his later general sociological theory.

Indeed, in contrast to social theorists, it is those social scientists who see law as central to their research careers, and tend to refer to themselves as ‘law-and-society’ or sociolegal scholars, who have most often embraced legal pluralist perspectives. But many sociolegal scholars have been content to follow social theory’s general lead, paying homage to the broad insights about law to be found in classic social theory but otherwise mainly using ‘law’ as a pragmatic umbrella term for clusters of social phenomena analysed in terms of concepts familiar in their parent social science disciplines.

Just as social theory has tended to avoid law while considering its social manifestations, so lawyers and legal scholars have mainly avoided social theory. And certainly, from a juristic standpoint, the usefulness of a theory of the social may not seem obvious: the social might be viewed as what law itself creates as its own jurisdiction, the structure of the social being simply the regulatory structure that law provides. In this sense the social is the taken-for-granted locus and environment of legal practice. And, undoubtedly, from a juristic viewpoint, law seems endlessly resourceful in defining and adjusting its reach and the nature of the relations it regulates: the social is what law treats as such.

Law and Contemporary Social Change

What is happening to change this typical relationship of disinterest? Relevant changes in the situation of law and legal studies, on the one hand, and of social theory, on the other, have often been associated with the idea of the passing of modernity and its replacement with the postmodern. ‘Post’ implies that the new can only be understood as related to and, in some sense, a supplement or reaction to what preceded it, but also that modernity’s features can now be identified with finality, so that what follows is distinct from them.

According to Jean-François Lyotard’s celebrated dictum, the most profound exemplification of postmodernity is a loss of faith in ‘grand narratives’ (Lyotard 1984: 37) in a fluid, rapidly changing, intensely self-questioning and uncertain (Western) world: the coming of ‘a new age of radical rootlessness and doubt’ (Douzinas and Warrington 1991: 9). This applies not only to comprehensive systems of thought such as Marxism and the great religions, but to general theories of ‘society’ as a stable, integrated totality, to political ideologies of all kinds and to the very idea of ‘science’ as the progressive unveiling of truth. All are said to flounder on the rocks of patent social contingency and indeterminacy.

The result is a new privileging of ‘local knowledge’ (Geertz 1983) and a perception of the failure or pointlessness of all attempts to generalize broadly about social change or social phenomena. The tendency in such circumstances might be to abandon social theory altogether. A new focus on the local and the specific, on the instability of social structures and institutions, and the exhilarating or frightening rootlessness of individual lives casts doubt on the usefulness of treating society as an object sufficiently solid to theorize (Rose 1996; Bauman 1992: 190). The dialectic of order/change and structure/agency in traditional sociological analyses of society does not seem to capture the sense of radical fluidity that postmodern thought associates with contemporary human coexistence in the most highly developed nations of the world.

The idea that it is no longer useful to theorize society has sometimes led into more general but very opaque claims about ‘the death of the social’ (Baudrillard 1983: Chapter 2). The doomsday scenario here is that social theory loses its integrity, having lost its object. It is replaced with a host of competing discourses – especially literary, feminist, psychoanalytic, economic and cultural theory – that focus on human relations no longer considered in terms of any explicit overall conception of the social.

More concrete ideas bearing directly on the destiny of law can also be mentioned. The social is sometimes claimed to be disappearing as a specific primary field of government intervention, and enterprises organized around it (such as social work, social welfare, sociology and socialism) are losing prestige (Simon 1999: 144–7). A further claim is that the social as a field distinct from the political is atrophying. From one viewpoint, the social has become merely a population mass, silent and inert, no longer the active source of political energies but merely a passive recipient of governmental actions (Baudrillard 1983: 19–25). A consequence would seem to be that legal interventions can hardly look for effective legitimation or direction from this source.

From another viewpoint, an individualization of lifestyles puts in issue the stability of many social institutions (for example, traditional family, employment and gender relations) but creates unprecedented opportunities for a radical remaking of the social through the spontaneous choices of individuals in relation to their own lives (for example, Beck and Beck-Gernsheim 2002). Thus, politics is potentially transformed, its focus shifted towards the local and the personal but also, very importantly, towards the global (as in many environmental, security and health concerns widely shared across national boundaries). Meanwhile, politics in nation states becomes increasingly moribund in the traditional public sphere. Indeed, in a revitalized politics, lines between public and private, and national and global, might eventually become meaningless (Beck 1992: Chapter 8; 2000: Chapter 2). The primary implication for legal studies would seem to be that the horizon and appropriate methods of regulation are changing in very fundamental ways.

The importance of this recent theorizing is certainly not to unde...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• Introduction Approaching Law
• PART 1: Perspectives (Legal and Social Theory)
• PART 2: Applications (Comparative Law and Culture)
• Conclusion: Frontiers of Community
• Bibliography
• Index
• About the Author