LAW & SOCIETY
Orienting Perspectives on Law & Society
...[A] primary problem of all legal studies may be the
intersecting of law and the other institutions of society. This
relationship is no mere reflection of society in the law: it
must be realized, rather, that the law is always out of phase
with society, specifically because of the duality of the
statement and restatement of rights. Indeed, the more highly
developed the legal institutions, the greater the lack of phase,
which not only results from the constant reorientation of the
primary institutions but is magnified by the very dynamics of
the legal institutions themselves. Bohannon 1968: 73-78.
Sociolegal Studies vs. Sociology of Law
Campbell and Wiles 1976: 547-555
Sociolegal studies deal "with the actual operation of law and
its effects on people--with access to legal services, with the
treatment afforded to defendants in court, with welfare and
poverty issues. ... [A] concern about 'justice' ... runs as a
leitmotif through sociolegal studies. ... [Sociolegal] research
is largely descriptive, it focuses on particular legal agencies
or discrete legal institutions... Given the interest in justice,
in reform and the improvement of the legal system, social
science methods are seen as useful in precisely identifying the
optimum means to achieve the ends in view. ... [T]he hegemony
of law [that it can be effective in reform] is accepted...
[T]he nature of the legal order is treated as unproblematic,
especially in its relationship to the rest of the social world.
... Research is unambiguously utilitarian, and pragmatic in
orientation, and the suggestions for reform which flow from it
tend to be limited in scope and of a legalistic nature."
In Sociology of Law, the "focus in ... on understanding the
nature of social order through a study of law. Insofar as law
is scrutinized it is from a perspective that attempts to be
exogenous to the existing legal system. The goal is not
primarily to improve the legal system, but rather to construct a
theoretical understanding of that legal system in terms of the
wider social structure. The law, legal prescriptions and legal
definitions are not assumed or accepted, but their emergence,
articulation and purpose are themselves treated as
problematic... Reform of the legal system is not, as such, the
goal even though an adequate theory of law may entail a
consideration of the relationship of law to social change."
Orienting Perspectives
Jurisprudence vs. Sociology of Law
Milovanovic 1994: 1-5
Jurisprudence is the study of:
1) the existing system of written rules, established in
codified form by the state (statutory and case law);
2) their ongoing systematization into a body of relevant
law by some coordinating principle of justification;
3) the application of doctrinal legal discourse that is
structured by a relevant morphological structure (word meanings)
and syntactical structure (linear constructions of narratives
and texts) in doing 'correct' reasoning in law;
4) the formal, logical application of abstract and general
legal propositions and doctrines by the use of doctrinal legal
discourse to 'factual' situations by a specialized staff which
provides a high degree of probability of resolution of the
issue(s) in controversy; and
5) how all conflicts can be inevitably subsumable (selfreferencing) to some absolute postulates which provide the body
of core premises and criteria for the correct resolution of
differences in a self-regulating (homeostatic) formal system.
Sociology of law, on the other hand, is the study of:
1) the evolution, stabilization, function, and
justification of forms of social control;
2) the forms of legal thought and reasoning as they relate
to a particular political economic order [why limit this to
economics?];
3) the legitimation principles and the effects that evolve
with them;
4) the 'causes' of the development of the form of social
control and staff of specialists that are its promoters;
5) the transmission of 'correct' methods of legal
reasoning;
6) the creation of the juridic subject with formal,
abstract and universal rights;
7) the evolution of the juridico-linguistic coordinate
system (legal discourse) [and we accuse lawyers of self-serving
jargon] in use and its nexus with the political economic sphere
[again why limit it to political and economic?]; and
8) the degree of freedom or coercion existing in the form
of law.
Orienting Definitions of Law
"[T]he prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law." Holmes
1897: 461.
"A principle or rule of conduct so established as to justify a
prediction with reasonable certainty that it will be enforced by
the courts if its authority is challenged is, then for the
purposes of our study, a principle or rule of law." Cardozo
1921: 52.
Law is the "union of primary and secondary rules." "Under rules
of the one type, which may well be considered the basic or
primary type, human beings are required to do or abstain from
certain actions, whether they wish to or not. [Secondary rules]
provide that human beings may by doing or saying certain things
introduce new rules of the primary type, extinguish or modify
old ones, or in various ways determine their incidence or
control their operation." Hart 1961: 77-79.
Law is "'a body of binding obligations regarded as right by one
party and acknowledged as the duty by the other' which has been
reinstitutionalized within the legal institution so that society
can continue to function in an orderly manner on the basis of
rules so maintained." ...[T]wo aspects of legal systems are not
shared with other institutions of society. First, legal
institutions alone must have some recognized way to interfere in
the malfunctioning ... of the nonlegal institutions... Second,
there must be two kinds of rules in the legal institutions,
[procedural and substantive]. ... Legal rights have their
material origins in the customs of nonlegal institutions but
must be overtly restated for the specific purpose of enabling
the legal institutions to perform their tasks [which changes the
nature of the rights and places the law out of phase with other
institutions]. Bohanan 1968:73-78.
"A social norm is law if its breach is met by physical force or
the threat of physical force in a socially approved and regular
way by a socially authorized third person." Akers 1965: 306.
"Law is governmental social control." Black 1976:2.
"Sociologically, law consists of the behaviors, situations, and
conditions for making, interpreting, and applying legal rules
that are backed by the state's legitimate coercive apparatus for
enforcement." Vago 1997:9.
According to Gibbs's (1967: 431) composite definition, law
includes the following elements:
1) an evaluation of conduct held by at least one person in
a social unit, and
2) a high probability that, on their own initiative or at
the request of others, persons in a special status will attempt
by coercive or non-coercive means to revenge, rectify, or
prevent behavior that is contrary to the evaluation, with
3) a low probability of retaliation by persons other than
the individual or individuals at whom the reaction is directed.
Law is "social control through legitimized coercion." Akers and
Hawkins 1975:8.
"[I]n our introduction to sociology of law we merely wish to
indicate the varying positions on the law. ... [T]he accepted
definition of law dictates the scope of the analysis of law."
Milovanovic 1994: 8.
Characteristics of Modern Law (Galanter 1966)
1. Uniformity of rules and their applications. Law recognizes
only functional differences among people (e.g., ability), not
intrinsic differences (age, gender, race). In other words,
achieved rather than ascribed statuses are stressed.
2. Transactional basis for rights and duties. Obligations
arise from our agreements and interactions, not from unchanging
obligations based on personal or group identity.
3. Universalism. Legal decisions apply to all similar cases
are do not vary from case to case.
4. Hierarchical administrative system. Downward vertical lines
of authority dominate; upward appeals must go through proper
channels.
5. Bureaucracy. Use of impersonal procedures and written rules
and records to that decision depend on more objective
application of rules and not the personal whims or decisionmakers.
6. Rationality. Modern law is constituted by understandable
rules which are designed to achieve clearly stated goals by
using methods that can be demonstrated to work.
7. Professionals. The system is operated by people who have
qualifications (e.g., police, judges, administrative hearing
officers).
8. Lawyers. An occupational group with special training acts
as go-betweens to work for clients in their dealing with the
system.
9. Changeability.
can be made.
Rules and procedures exist by which changes
10. Politicality. Modern law serves the purposes of the
state/government (as opposed to other social institutions like
the family, church, education, economy).
11. Separation of powers. Legislative, judicial, and executive
functions are separated and distinct in modern law.
Views on the Functions of Law
"[S]ocial control [is] the defining characteristic (dispute
settlement can be subsumed under social control)..." Akers and
Hawkins 1975: 8. (See also the social control emphasis in the
definitions of law offered by Black and Gibbs.)
Friedman (1984: 8-14) lists four basic functions: social
control, dispute settlement, social engineering (planned social
changed imposed from the top), and social maintenance.
Milovanovic (1994: 8-14) lists three basic kinds of functions:
repressive functions (coercion), facilitative functions
(certainty and predictability in behavior), and ideological
functions including domination, legitimation, hegemony, and
reification (a process which establishes some relative
independent existence to constructed orders).
Vago (1997: 6-18) discusses both functions (social control,
dispute settlement, and social change) as well as dysfunctions
(conservative tendencies, rigidity due to formality in law works
against its effectiveness in problem-solving, normative overcontrol, and legal categories themselves become forms of
discrimination).
Glossary Refresher of Basic Sociology Concepts
From John E. Conklin, (1984) Sociology: An Introduction.
York: Macmillan.
New
Social Structure: Interaction among people that recurs ina
regular and stable pattern over time; the form or shape of
social relatiponships.
Status: A position within a social structure.
Ascribed Status: A social position assigned to a person by
others...
Achieved Status: A social position that a person acquires by
choice, effort, or merit.
Role: The behavior expected of a person who occupies a
particular status.
Role Set: The various roles attached to a single status. [We
also need to establish terminology to refer to the combination
of statuses and roles individuals have, perhaps a role
composite.]
Role Conflict: [The existence of] [a]n incompatibility between
two or more roles that a person is expected to play. [May or
may not be subjectively appreciated.]
Role Strain: [The existence of] incompatibility in the
expectations of a single role ... [May or may not be
subjectively appreciated.]
Master Status: Themost important status in a person's life, the
one that determines his or her social identity.
Reference Group: A group or category that people use to evaluate
themselves and their behavior [or perhaps others use to evaluate
a person or her/his behavior].
Institutionalization: The process by which institutions are
created.
Institution: A stable cluster of values, norms, statuses, and
roles that enjoys wide support in a society.
Value: An abstract and shared idea about what is desirable,
good, or correct.
Norm: A rule or expectation about appropriate behavior for a
particular person in a specific situation.