The Handbook of Law and Society

Austin Sarat, Patricia Ewick

• Publisher: Wiley-Blackwell
• Year: 2015
• ISBN:
  9781118701447
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

Bringing a timely synthesis to the field, The Handbook of Law and Society presents a comprehensive overview of key research findings, theoretical developments, and methodological controversies in the field of law and society.

• Provides illuminating insights into societal issues that pose ongoing real-world legal problems
• Offers accessible, succinct overviews with in-depth coverage of each topic, including its evolution, current state, and directions for future research
• Addresses a wide range of emergent topics in law and society and revisits perennial questions about law in a global world including the widening gap between codified laws and "law in action", problems in the implementation of legal decisions, law's constitutive role in shaping society, the importance of law in everyday life, ways legal institutions both embrace and resist change, the impact of new media and technologies on law, intersections of law and identity, law's relationship to social consensus and conflict, and many more
• Features contributions from 38 international expert scholars working in diverse fields at the intersections of legal studies and social sciences
• Unique in its contributions to this rapidly expanding and important new multi-disciplinary field of study

Part I
Setting the Stage

1
What is Law and Society?
Definitional Disputes

Susan M. Sterett

Introduction: Law as Authority, Law as Field

Jerome Frank, the legal realist lawyer who worked for the Roosevelt administration in the United States in the 1930s, wrote Law and the Modern Mind (Frank 2009[1930]) just before the United States New Deal. In it he scrutinized the longing for law as a clear, final, authoritative statement. Frank acknowledged that laypeople found the law “uncertain, indefinite and subject to incalculable changes,” and the uncertainty contributed to most people’s disenchantment with law. He wondered why people would expect anything different. Why was finding uncertainty even a criticism of law and lawyers? Frank scrutinized the longing for finality through a psychoanalytic lens, and argued that it was a longing for a father who acted as a final authority against the “reasonless, limitless and indeterminate aspects of life.” He argued that the belief in authority persisted despite our repeatedly finding that there was seldom a stopping point in legal argument. Legal judgments may stop a story, but they are not the end of law. The stopping points can have dramatic consequences for people, whether in deportations, dissolution of marriages, formation of companies, or imprisonment and death. Actors recontextualize legal orders, giving them new meanings. The futility of the search for clear authority or an end to legal argument that Frank found ordinary took on a more ominous tone with the rise of fascism.

An alternative to the longing for authority Frank analyzed is law as a semi-autonomous field intertwined with all the other ways that people and institutions constitute meaning. The legal anthropologist Sally Falk Moore led us to think of a field as a site of research that allows us to see both the presence and the absence of law; entering a “semi-autonomous field” allowed one to analyze how laws were produced and gained authority through relationships (Moore 1978). She acknowledged that analyzing law as relational meant that law was not necessarily sharply distinguished from everything else, a point she presciently noted was one that required discovering “again and again.” The fixed point necessary to enter a field can be a court, or an organizational field, or a workplace. Fixed points are sites for tracing legal fields of power, however, rather than final authority. Mapping connections is both the task that law and society scholars set for themselves and a source of frustration. It does not demarcate a sharply defined legal field and calls into question how such a field gets created when it does. It follows the decentered approach to law that Morrill and Mayo next argue is a distinctive contribution of law and society scholarship.

The rest of this chapter will rely upon the tension of law as authority and law as a field across other tensions in representing law. Law is what all of us do with what we see is the law, and law is the word of officials in a hierarchy. Law is both general and law is a way of entering particular policy fields. Law is punitive and productive. Law tells stories about texts, creating itself as a field of professional expertise by taking away the particular identities of those who come before the law, and law tells stories about lives with multiple particularities. Law promises justice, a promise often disappointed, and yet supranational forums and claims to justice beyond the state increasingly play a part in governing. People claim justice to hold power accountable; states organize appeals both to enforce rights and serve central states’ own purposes by checking that lower level bureaucratic officials are adhering to central state policies. Throughout, the significance of a decentered and globalized approach to law that Morrill and Mayo find in the next chapter will color descriptions of alternative perspectives.

Frank’s reflections are part of the heritage that law and society scholars claim in the United States, reaching back through sociological jurisprudence and legal realism in the early twentieth century and forward through reformist political claims for domestic politics. The approach both critiques and recognizes domination and pluralism cross-nationally. That origins story for law and society scholarship has a particular United States cast; the constitutionalism of the United States, in which law is an instrument of the state and high-level judicial officials have long been charged with engaging elite political issues, has framed law and society for the United States. The insight that, whatever it is, law is not a final order from a solitary father is central across multiple fields within law and society scholarship. In other countries, the story law has told itself is more self-referential, with high-level legal officials divorced from the other apparatus of the state. Integrating lawyers and legal officials into the apparatus of the state demotes lawyers from people trained in the law who were responsible for articulating right principles, itself worth mourning. The belief in law as order that controls the world is itself a claim to analyze. The image of an authority is an effect that the images, stories and sounds of justice produce. Our image of law can still rest in “the form of the modern state” and “disembodied rationality,” despite the pluralism of law experienced across communities and international institutions (Buchanan 2010).

Calvin Morrill and Kelsey Mayo’s chapter in this collection delineates iconic work by citation counts. They recognize that citation counts result in an emphasis on work by white male scholars at elite universities in the United States. That counters the decentered approach to law, which has had a history of undermining authoritative claims when gathering information about what law does can be a matter of life and death. For example, the anti-lynching activist Ida B. Wells-Barnett, discussed further below, painstakingly gathered information about the circumstances of lynching to counter the dominant narrative blaming it on African-American men themselves (Sterett 1994). Therefore, this chapter will complement Morrill and Mayo’s practice by focusing on newer work and work that falls outside the iconic status marked by citation counts. In relying on exemplars, it is easy to miss what the biologist, baseball fan and popular science writer Stephen Jay Gould called “the spread of excellence,” a concept that will inform the examples and citations used in the rest of this essay. In baseball, Gould argued, all players got better as they stopped drinking and trained more. Gould argued that when we use exemplars to represent a class, we miss the variance. All the members of a group can shift over time toward excellence, and the rich diversity is not evident when we focus on an individual. People learn from each other, particularly if we try to teach good practice. Improving inclusion changes practice; in baseball, more people learned to play well, and including players who weren’t white made for better players and a better game. That’s the end of the baseball metaphor in this chapter: the point is that we can learn through recognizing widespread excellence. Feminist and critical race scholarship has demonstrated that institutions look different from the standpoints of people with different life experiences (see for example Delgado and Stefancic 2013). That insight has illuminated the decentered approach that is at the heart of much law and society scholarship, giving all the more reason to illuminate central concepts with examples from multiple supranational and domestic institutions, from colonial state/societies, and from a variety of fields. Turning to a wide range of imaginative scholarship transforms what we know. This chapter attempts to recognize the rich variety of scholarship, complementing other chapters by leaving many ico...

Table of contents

• Cover
• Title page
• Table of Contents
• Notes on Contributors
• On the Emerging Maturity of Law and Society
• Part I: Setting the Stage
• Part II: Approaches to the Study of Law as a Social Phenomenon
• Part III: Institutional Processes and Actors
• Part IV: Domains of Legal Policy
• Part V: How Does Law Matter?
• Index
• End User License Agreement