Understanding Law and Society

Max Travers

• Publisher: Routledge-Cavendish
• Year: 2009
• ISBN:
  9781135248444
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This textbook on the sociology of law is organised according to the theoretical traditions of sociology, and oriented towards providing an accessible, but sophisticated, introduction to, and overview of, the central themes, problems and debates in this field. The book employs an international range of examples - including the state, minority rights, terrorism, family violence, the legal profession, pornography, mediation, religious tolerance, and euthanasia - in order to distinguish a sociological approach to law from 'black-letter', jurisprudential and empirical policy-oriented traditions. Beginning with 'classical', 'consensus' and 'critical' sociological approaches, the book covers the full range of contemporary perspectives, including the new institutionalism, feminism, the interpretive tradition, postmodernism, legal pluralism and globalisation. It then concludes with a consideration of current theoretical issues, as well as a reflection upon the importance of a sociological approach to law.

Understanding Law and Society provides a clear, but critical, discussion of the relevant literature, along with study questions and guides to further reading. It is designed to support courses in law and society and in the sociology of law, but will also be of value to others with interests in these areas.

Chapter 1
Introduction

The relationship between law and society

The view that law is society

The view that society is greater than law

Approaches to studying law

Black-letter law

Jurisprudence

Policy-oriented research

Sociology of law

Sociology of law: a debate subject

Why sociologists disagree

Consensus versus conflict

Action versus structure

The postmodern challenge

Can sociologists address law?

The objectives of this text

Questions

Further reading

This introductory text on understanding law and society should interest two types of student readers. Those studying law will already know a lot about the legal system, and legal skills and reasoning, but feel less confident when thinking about the relationship between law and society. Students on social science degrees may know very little about the legal system, but have taken introductory courses in different social science theories and approaches. This in itself suggests that teaching courses in law and society studies, sociology of law, socio-legal studies or the law in context (these are all different terms for the same approach towards law) is not always easy since it involves bringing together different disciplines. Against this, a mix of students on any law and society course can be very valuable, and students often help each other not only with terminology, but in learning how to look at law differently. This chapter will, therefore, need to explain the basics of the legal system (that law students should know in more detail) and the basics of sociology (that should already be familiar to sociology students). To understand the nature of either law or society, you need to know the relevant ideas and concepts from the disciplines of law and sociology. Moreover, the moment you start to think about the relationship, you are starting to explore new territory, and will encounter difficult but interesting questions that cannot be addressed within each discipline.

The relationship between law and society

The first thing that students learn on law degrees are the sources of law as a body of rules that govern different aspects of social life. In the United States, Britain and Australia (the common law world) a significant amount of law is made by judges interpreting precedents handed down from time immemorial. The judgements made by the higher courts are reported in law reports that fill shelves in libraries or can be consulted using search engines in cyber-space. Anyone new to law as a discipline might be amazed, and perhaps disturbed, by the sheer volume of case law being produced by different courts and tribunals, and which lawyers need to know if they are advising clients. Then there is the law made by legislative bodies, such as the American Congress or the British Houses of Parliament, which fills yet more volumes, and may come before the courts generating further case law. Every area of life is regulated by some form of law, and the amount is increasing exponentially. Criminal law creates offences for which one can be arrested and charged by the police and brought before the criminal courts. Civil law concerns the relationship between citizens. The law student has to learn and be able to apply complex bodies of rules that identify when one can obtain compensation for injury, and the rights and obligations when making a contract. There are, in fact, specialist rules, relating to every aspect of social life, including the ownership of land, different aspects of commerce, the family, the conduct of public bodies and immigration control. The law student learns some of the main areas (tort, contract, criminal and family law) on a law degree but there is too much to learn, and like the medical student, it is often only possible to acquire skills in locating the law, and making legal arguments, rather than obtaining a mastery of each specialist area.

From a sociological perspective, the legal system can also be understood as a number of organisations or institutions that produce, administer and interpret the law. There is the law school itself which maintains law as what the structural-functionalist sociologist Talcott Parsons (see Chapter 3) described as a ‘cultural tradition’, and trains the next generation of lawyers. There is the legal profession which includes lawyers in private practice, those working for industry and public sector organisations and the judiciary. There are also the criminal and civil courts, and related institutions such as the police. Several thousand people work in these and other specialist organisations concerned with legal affairs in any particular country. In the United Kingdom, both the systems of criminal and civil law are administered and overseen by departments of state, the Home Office and Department of Constitutional Affairs, which are themselves massive bureaucratic organisations. Then, there is the whole political system and legislative process that produces statutory law, which itself consists of numerous organisations, each with its own ways of doing things. To give an example, the British House of Commons is an extremely complex institution with its own procedures and values that exists to review and make new laws. One group of specialists working there are the parliamentary draughtsmen who translate the objectives of legislators into what they hope are effective pieces of legislation.

Outside the nation state, there are organisations that produce and administer laws that shape the relations between states. Many of these are concerned with economic relations in a globalising world, for example, the regular negotiations that have attempted to secure a free trade agreement. Others are concerned with regional affairs, so for example there are many agreements and regulations just affecting the relationship between states in Asia or Latin America. Others are concerned with setting global standards, or attempting to police criminal behaviour. The International Criminal Court in The Netherlands holds trials for those charged with war crimes. The various Conventions that have resulted from the formation of the United Nations, and the many agencies associated with this, on the rights of children, the environment and the rights of prisoners in international conflicts, are not always respected by nation states. Nevertheless, the United Nations will become increasingly important in addressing problems, such as global warming, that can only be solved by co-ordinated, international action.

Understanding law in terms of these organisations and institutions still does not do justice to how law affects us in everyday life (even when we are not aware of it), and particularly how organisations of all kinds, from small businesses to television stations, organise their activities in compliance with external regulations. The term ‘legal phenomena’ seems to capture how we encounter law regularly in social life, often in dealing with documents such as tenancy agreements, employment contracts or insurance policies, or the liability notices on consumer products. The rights and obligations of the different parties involved in publishing this book (the author and publishers) are governed by a written contract. We may not read these documents closely, but in the modern world they are part of our everyday lives (Friedrichs 2006). It should also be remembered that any organisation by definition will generate its own rules and procedures. This is arguably also law even if it is not recognised as such by the courts, unless they have to intervene when a dispute arises that cannot be settled informally.

How then to understand the relationship between law and society? This difficult question has troubled legal philosophers and social theorists for many years, and there are no easy or simple answers. To get a sense of the difficulties, consider the following positions:

The view that law is society

If society is more than a collection of individuals, there must be some kind of relationship between them, and at the very least a sense of what is right and wrong behaviour. This has led legal philosophers in the natural law tradition to argue that there cannot be society without law (Finnis 1980). From this perspective, social theorists do not usually pay sufficient respect to law. It is central to everything we do, not simply as an external constraint, but because it constitutes and makes possible orderly social life. This involves taking a broad view of law, so any rule or social norm we are following, for example caring for the sick or respecting other people’s property, is seen as part of law, even if lawyers or the courts are not asked to intervene, and we are not consulting legal rules. Everything in society is held together, governed and even constituted by law.

The view that society is greater than law

The opposing view, not often articulated by sociologists, but evident when they write about society, is that it is possible to go through life without giving law much thought. A lawyer might need to be consulted when buying a house, or if you are unfortunate enough to be injured in a car accident. For the most part, however, law seems rather a dry, technical subject of interest to a particular occupational group. Legal considerations may be there in the background when you are pursuing your day-to-day work and leisure activities, but they are not central to running a business, getting married, appreciating television drama, ordering from a restaurant menu or conducting a war (to give a few examples). There is inevitably a lot more to any society, whether it is the kind of small-scale group studied by anthropologists, or our own highly complex industrialised society, than law. From this perspective, one can recognise the importance of rules and norms (how people are expected to behave),without seeing them as part of the legal system. Some legal philosophers and sociologists have also argued that we only consult lawyers, and only need law, when things go wrong. Harvey Sacks (1997, p. 43) argued that the emphasis in law on ‘written matter, on coherence, clarity, completeness, impersonality [and] predictability … provide solutions to matters not treated as problems in the everyday world of others’. It would be intolerable if every aspect of our lives really were governed in fine detail by legal rules.

Even if one accepts that law is only one institution, among many others, it is a particularly important institution, since it is also more or less equivalent to the modern legislative state. Similarly, despite being resented for the amount they charge to resolve problems and conflicts through their knowledge of what to many seem obscure and unnecessary procedures, it would be hard to imagine our complex, industrial society without lawyers. This is why it seems strange that law hardly gets a mention in many sociology degrees, outside the area of deviance. There are likely to be options on class structure and stratification, work and the economy, crime and deviance, the family, the media, education, racial and ethnic relations, perhaps religion and science, but not law. The other side of the problem is, of course, that in many law degrees, students only encounter law as a set of rules, rather than thinking about its character as an institution in broader terms.

The objective of this text is to help you understand the relationship between law and society, without promising there are easy answers even before we look at different sociological traditions. The next section explains what is distinctive about sociology of law through contrasting it to three other ways of studying law which are taught in law schools. It also considers some general debates about the nature of society that have interested sociologists.

Approaches to studying law

Students studying law on university degrees spend most of their time learning and applying what is sometimes forbiddingly called black-letter law. They also usually have to take a course in legal philosophy, and may take courses where there is a focus on how law contributes to the objectives of government. Sociology of law, by contrast, is a subject concerned with thinking about, and investigating using empirical methods, the relationship between law and society.

Black-letter law

‘Y receives an e-mail message from X in which he offers to sell his car. The message says that if he hears nothing by the end of that week, X will assume that he is happy with the price. Y does not reply to the message. Does he have to buy the car?’

‘Mary is a witness to a car accident caused by Louise in which a child is killed. For the next few months, she finds it difficult to sleep and gets flashbacks. She gets back to normal through seeing a counsellor recommended by her doctor. Can Mary obtain compensation?’

These are examples of the problems given to British law students to test their knowledge of the law and develop skills of legal reasoning. To answer the first question, you need to know the rule or principle established by the case of Felthouse v Bindley (1862) 11 CB (NS). You can find the surrounding case law in any British textbook on the law of contract. Since judges follow precedents, this case determines whether a contract has arisen in similar circumstances today, unless a lawyer can make a convincing case that the facts can be distinguished. To answer the second question, you need to be familiar with the case law following the decision in Donoghue v Stephenson [1932] AC 562 which created the right of someone to claim compensation if injured by another person or organisation in breach of a duty of care. The issue here is whether you can claim damages for a breach of duty of care resulting in psychological harm or distress. As every law student knows, there are no credits given for providing background information about the origins of contract law, or ethical debates about whether protection against every conceivable type of harm is a good thing. In fact, the flavour of the law school tutorial is that students have to solve problems quickly, with just the rules or principle that is required. Moreover, they have to sit examinations based on large bodies of cases and rules where only the most disciplined, and with good memories, will obtain high grades.

Although one can make fun of how black-letter law is taught in law schools, there is no doubt that knowing the law, or knowing how to find it, has great practical value. It also helps at a later stage of legal training to know about the procedures involved in bring a case to court. Just as medical practitioners need to know about common illnesses and how they are treated, the lawyer needs to know the general principles in a particular area of law, and how to consult specialists when this is appropriate. If cases are appealed, lawyers and judges may have to engage in academic argument over the principles and precedents in a particular area of law. The judgements written up in law reports may in turn form part of legal training for the next generation of lawyers.

Jurisprudence

The only subject outside black-letter law that has become institutionalised in the law school curriculum is legal philosophy or jurisprudence. Many textbooks are quite broad, and include discussion of sociological theorists such as Karl Marx (for an example from Britain, see Freeman 2001). They mostly, however, contrast two philosophical traditions that have been debating the nature of law since the eighteenth century. Natural law theory is the oldest, and argues that law does and should reflect enduring and eternal ideas of what is right and wrong. This view of law originated in Europe during a period when the power of the sovereign or law-maker was seen as having a religious basis: law reflected divine will. By contrast, positivist jurisprudence took the view that law as a set of rules was created by political power, and there should be no room for appeals to moral absolutes.

Although it might seem remarkable to a non-specialist that so much intellectual effort is still expended on debating these philosophical positions and various elaborations or off-shoots, it should be remembered that the objective of this field of legal philosophy is to think through fundamental problems in a systematic fashion. Classic statements by Ronald Dworkin, Hans Kelsen and H.L.A. Hart (different varieties of legal positivism) or by Lon Fuller and John Finnis (natural law theory) repay close study. None of these theorists disagree about what lawyers or judges do in practice and most have little interest in empirical research conducted by sociologists. They are concerned with philosophical debates about the nature of law.

Policy-oriented research

Law has always been an inter-disciplinary subject, and ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface and acknowledgements
• 1 Introduction
• 2 Classical thinkers
• 3 The consensus tradition
• 4 Critical perspectives
• 5 Feminism and law
• 6 The interpretive tradition
• 7 Postmodernism and difference
• 8 Legal pluralism and globalisation
• 9 Conclusion
• References