An Introduction to the Sociology of Law

Nicholas Sergeyevitch Timasheff, A. Javier Trevino

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351531870
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

The exiled Russian sociologist and legal scholar Nicholas S. Timasheff's place in the forefront of the sociology of law was established with the publication, in 1939, of An Introduction to the Sociology of Law. His magnum opus articulates a systematic legal sociology. The book's title is misleading, giving the false impression that the volume is merely a textbook intended for classroom use. It is much more than this. An Introduction to the Sociology of Law is a sophisticated treatise that explains, precisely and methodically, the law as a social force. It makes two fundamental points: law can, indeed must, be studied by sociology, and law is a combination of socio-ethical and imperative coordination of human behavior.

PART I
SOCIOLOGY AND LAW

CHAPTER I

THE SOCIOLOGICAL PLACE OF LAW

§ 1. LAW AS A SOCIAL PHENOMENON

WHEN observing human behavior in society, we notice that it is often determined by its relation to an “X” called law. In some cases men act in a certain way and not in another, because law imposes upon them just this conduct. In other cases they carry out acts which they would be unable to accomplish had they to reckon only upon their own “natural” forces: law backs them up and endows them with additional power. In still other cases their behavior is determined by their concern for law. Finally, some acts are understood by their authors or by other people as transgressions of law, whereas many acts remain irrelevant or neutral from the legal point of view.¹

The relation of acting individuals to the “X” representing law may be conscious or unconscious. If it is unconscious, there are other men who interpret the conduct of acting individuals in one of the above-described ways and sometimes, as a result of such interpretation, they themselves begin acting in a way related to law. However, in the majority of cases, individuals acting unconsciously are able to discover the relation of their behavior to law, sometimes by means of posterior introspection or interpretation of their conduct. This may be done either on their own initiative or as a result of suggestion or compulsion on the part of other individuals.

The “X” represented by law might seem to be merely a sum of subjective concepts or representations. This is not so, for law, to which acts of group-members are related in the above-described manners, is independent of individual opinions or concepts: within a certain social group identical patterns of conduct are considered to be legally imposed, to help one in one’s actions, to be taken into account when acting, or to be transgressed. Not only have almost all group-members identical ideas concerning the law which is in force within the group,² but they know also that the law is truly “in force,” that combined forces of men stand behind the law. The efficacy of law, i.e., its existence as a social force,³ depends upon a stable disposition or attitude on the part of group-members toward helping law to be actualized in social life. This stable disposition is a product of a long-lasting social interaction. Such products form culture. Consequently, law is a part of culture, a cultural object or a cultural force.

The conformity of social life to law is, however, only a tendency, not a complete actuality. But, in conflicts with other forces (especially in conflicts with divergent individual wills) the triumph of the social force called law is the rule, the definite defeat of law merely an exception. How do we know this? Direct observation gives sufficient evidence. Everyone, observing his own life or the life of his relatives and acquaintances, notices that acts carried out in conformity with or out of regard for law are very numerous, whereas acts carried out against law, if any, are only exceptional. Try to represent yourselves acting against the law, and you will notice that a certain psychic resistance must be overcome in order to create a vivid representation of this kind; to continue the experiment and to act against the law in order to “prove its nonefficacy” would, generally speaking, be impossible.⁴

The value of such personal observation may be enlarged without difficulty: it is very easy to become aware that the efficacy of law is nothing specific to one’s own city or country. Everything one knows about other cities and civilized countries testifies to the fact that there also people are adjusting their behavior to law and are taking part in the social process of securing its enforcement. Travelers give us (orally or in writing) sufficient evidence of this kind. Historians tell us that adjusting behavior to law already existed in ancient times; ethnologists that law already existed within many primitive tribes.

There is also “mass” evidence. Certain countries possess almost complete criminal statistics, showing the total number of cases of transgressions against law insofar as they have been tried by criminal courts. Of course, there have been many cases which do not pertain to the domain of crime; and also, of course, there are unknown and unreported cases. But even if we multiply by ten the figures of criminal statistics, the number of transgressions will remain very small as compared with the tremendous number of acts carried out in accordance with law.⁵

On the other hand, the number of habitual and professional criminals, in whose lives transgression of law is rather frequent and who are not normally motivated by law, is very small.⁶ The conclusion is: the normal motivation by law is in force with regard to almost the totality of citizens in the large majority of life-situations in which the transgression of law is practically possible and would correspond to the resultant of natural (i.e., of nonsocialized) drives.

§ 2. NATURAL, IMITATIVE AND IMPOSED UNIFORMITIES

Individual observation, corroborated by introspective experiment and mass observation expressed in statistical data, shows that the triumph of law, i.e., the conformity of human behavior to legal precepts, is not a postulate, not a desire of well-intentioned individuals, but a fact of social life.⁷ As conduct is generally adjusted to legal patterns and as legal patterns are relatively constant, the triumph of law means the shaping of human behavior in society in a constant direction. In other words, law produces similarity or uniformity in the behavior of individuals within a social group. Let us call such a uniformity a “socio-legal uniformity” and search for the place of this uniformity among social uniformities in general.

A social uniformity is a set of similar acts. Acts are never totally identical with each other in all their details. Similitude between two or more acts can be stated only by means of abstraction, by observing them from certain viewpoints and leaving others out of consideration. Every uniformity in human behavior can be reduced to the basic proposition: similar conditions acting on men of essentially similar nature produce similar effects. The classification of uniformities is to be based on the analysis of “similar conditions.” Three main classes of uniformities may be distinguished from this viewpoint, for which the terms⁸ natural, imitative and imposed will be used.

The uniformities of the first class (natural uniformities) can be contrasted with the regularities both of the second and the third class (imitative and imposed uniformities) in the following way. Acts belonging to the second and third classes are to be causally explained as reproductions of “original acts” ⁹ which are considered by men as “patterns of behavior;” whereas acts of the first class cannot be explained in this way.

The uniformities of the second class (imitative uniformities) can be contrasted with the uniformities of the third class (imposed uniformities) in the following way. Acts belonging to the third class of uniformities are to be causally explained as determined by “the imposition of patterns of behavior,” whereas acts of the second class are not. The imposition of a behavior pattern is given, if the adjustment of the behavior of A to the pattern X is influenced by the behavior of at least one other individual B> whose behavior tends toward the adjustment of the behavior of A to X. It is possible (but not necessary) that the behavior of B be adjusted to X too. But if there is no B influencing A in the adjustment of his behavior, this adjustment may originate only in A himself. In this sense it is free, and the adjustment seems necessarily to be based on imitation.

Let us make a cursory review of the uniformities of the three classes.

1. Uniformities of the first class are formed by sets of similar acts, insofar as every act is caused by something standing “outside” but not “above” the actors. There are neither preëstablished patterns to which single acts should conform, nor, within the set, acts selected as patterns which should be imitated by others. The observer is free to choose for description any act of the set, every act being neither more nor less typical than any other.

Statistical uniformities¹⁰ belong, first of all, to this class. Within a certain social group, during a certain period, a rather constant number of crimes and suicides are committed, a certain number of marriages are concluded, et cetera. Furthermore, many of the uniformities described in general sociology or in political economy are also “natural uniformities;” cattle breeding is replaced by agriculture every time, when a certain density of the population is attained; every political society is destroyed by a revolution, if certain conditions are united; in countries with liberal economy men raise the prices every time, when the demand increases faster than the supply, et cetera.

Natural uniformities as such do not exert any pressure on the behavior of an individual. Pressure is exerted by many causative factors, the combined action of which forms the uniformity. Insofar as the behavior of the majority is determined, we may speak of typical acts. But conditions forming the social milieu necessarily do not determine the individual act: sometimes constellations of variable causes determine individual behavior in a way quite different from the typical one (atypical acts).

2. The second class of uniformities is formed by sets of similar acts, within which a certain type of behavior is “freely” chosen by an indeterminate number of individuals as a pattern for their behavior. In contrast to the first class, the sets of similar acts are formed as a result of a certain trend toward similarity; units in the series are not equal ones: there are, within the series, inventive or creative acts in the beginning and imitative acts in the other parts. Certain individuals introduce a new fashion of clothing, the others follow; a business man discovers an efficacious form of advertising, his competitors imitate him; a man preaches a new religious or philosophical doctrine, others are “converted.”

In all these cases there is no compulsion, no imposition of patterns of conduct upon others. Sometimes the inventor would be glad to keep his invention for himself (our business man); sometimes the inventor is rather indifferent as to the success of his invention, or he may be imbued with the spirit of proselytism, but his manner of influencing action is only persuasion.

3. The third class of uniformities is formed by sets of similar acts within which a certain behavior is “imposed” on group-members as an obligatory pattern for their behavior.

An obligatory pattern for behavior might appear as (a) a concrete act or a series of similar acts, or (b) an ideal structure. In a primitive agrarian community everyone tills his allotment of soil just as his father and forefathers did; or, soldiers greet their superiors in the exact manner shown them by an officer; or again, grain merchants in a certain harbor, when settling their mutual accounts, take into consideration the manner in which this was generally done during previous years. An authoritative court decided that “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of the escape” (Rylands v. Fletcher); other courts, in England and elsewhere, followed the same procedure when judging similar cases. Such might be examples of the first variety.

A law has been enacted ordering the declaration of income according to certain forms: persons concerned adjust their behavior to the “ideal” structure. A new rite has been established by a church council; priests and believers perform it. The chamber of commerce has decided that the rules concerning grain trade should be modified; the corresponding behavior replaces that which previously prevailed. Such would be examples of the second variety.¹¹

The imposition of patterns, in accordance with our definition, depends on the display of energy on the part of certain individuals aiming at the adjustment of the behavior to patterns. Such individuals will be called “supporters of patterns.”

If the number of the supporters of a pattern and the intensity of their attitudes are sufficient, individual behavior is generally adjusted to the pattern. Behavior modeled on a pattern in force (i.e., on a socially supported pattern) is normal behavior. Exceptions, cases of maladjustment, are always possible; they are considered to be “abnormal” behavior.

Normal behavior is coördinated behavior, for it is behavior in accordance with obligatory patterns. The process of imposing behavior patterns is social coördination, and the result of coördination is social order. Social order is, of course, composed not only of directly imposed acts, but also of acts performed with a “concern” for imposed patterns. At the periphery of social order are acts carried out with the intention of avoiding imposed patterns; but acts incompatible with established patterns no longer belong to the social order.

§ 3. THE INTERDEPENDENCE OF UNIFORMITIES

What is the place of law in our classification of social uniformities? It is obvious that law is one of the instruments of social coordination and that therefore legal order is a part of social order, the social force called law always tending to mold individual behavior in accordance with preëstablished patterns imposed by individuals who play the rôle of “supporters of patterns.” It is equally obvious that legal order does not form the totality of social order: for there are many cases in which the function of social coördination is carried out by instruments other than law, such as custom, morals and also naked power.

Before advancing further in our search for the precise position of law among social uniformities, especially among the instruments of social coördination, we must make the following additional statements.

In classifying social uniformities we must lay stress upon the immediate...

Table of contents

• Cover Page
• Half title
• Title Page
• Copyright Page
• Table of Contents
• Introduction to the Transaction Edition
• Preface
• General Explanation of Bibliography
• Part I Sociology and Law
• Part II Ethics
• Part III Power
• Part IV Law
• General Bibliography
• Index of Authors
• Index of Subject Matters