Sociology of law: Wikis

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Sociology of law refers to both a sub-discipline of sociology and an approach within the field of legal studies. Sociology of law is a diverse field of study which examines the interaction of law with other aspects of society, such as the effect of legal institutions, doctrines, and practices on other social phenomena and vice versa. Some of its areas of inquiry include the social development of legal institutions, the social construction of legal issues, and the relation of law to social change. Sociology of law also intersects with the fields of jurisprudence, economic analysis of law and more specialized subjects such as criminology.[1]

Contents

History

Max Weber in 1917 - Weber who began as a lawyer and economic historian is regarded as one of the founders of sociology and sociology of law

Initially, legal theorists were suspicious of the sociology of law. The influential Austrian jurist Hans Kelsen attacked one of its founders, Kelsen's compatriot Eugen Ehrlich, who wanted to emphasise the difference between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.[2] Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.[3] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[4] Another classic sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[5] Durkheim also argued that a sociology of law should be developed alongside, and in close connection with, a sociology of morals, studying the development of value systems reflected in law. Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner and Nicholas Timasheff in the U.S.[6]

Classical sociology

Sociology and the law as a distinct methodology originated in Russia in the 1870s in the works of Sergey Muromtsev and Maksim Kovalevsky.

In the West, the place of law in society was sociologically explored in the seminal works of both Max Weber and Émile Durkheim. The writings on law by these scholars are foundational to the entire sociology of law today.[7]

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Max Weber

Max Weber (1864-1920) was trained in the law and wrote about it extensively in his sociological writings. Weber formulated the sociology of law as an external approach to law that studies the empirical characteristics of law, as opposed to the internal perspective of the legal sciences and the moral approach of the philosophy of law. Central to the development of modern law for Weber was the formal rationalization of law on the basis of general procedures that are applied equally and fairly to all. Modern rationalized law is also codified and impersonal in its application to specific cases.

Emile Durkheim

Émile Durkheim wrote about law extensively in his important book on the social division of labour. Law is an indicator of the mode of integration of a society, which can be mechanical, among identical parts, or organic, among differentiated parts such as in industrialized societies. Over the course of history, law undergoes a transformation from repressive law to restitutive law. Restitutive law operates in societies in which there is a high degree of individual variation and emphasis on personal rights and responsibilities. Though Durkheim is best known in socio-legal scholarship for the theses of his first book The Division of Labour in Society his later works contain much other, often differently oriented but no less significant, writing about law.[8]

Contemporary perspectives

Modern sociology of law

After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of the Talcott Parsons, for instance, law is conceived as an essential mechanism of social control. In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged. Critical sociologists developed a perspective of law as an instrument of power. However, other theorists in the sociology of law, such as Philip Selznick, argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well. Still other scholars, most notably the American sociologist Donald Black, developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology. Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann, who sees law as unable to communicate with other social institutions because of the rigidity of its binary code of guilty/innocent. Social philosopher Jurgen Habermas disagrees with Luhmann and argues that the law can do a better job as a 'system' institution' by representing more faithfully the interests of everyday people in the 'lifeworld'. Perhaps the most sophisticated and critical sociological theory of law and lawyers is that of Pierre Bourdieu, who sees law as a social field in which actors struggle for cultural, symbolic and economic capital and in so doing develop the reproductive professional habitus of the lawyer.

In more recent years, a very wide range of theories has emerged in the sociology of law as a result of the proliferation of theories in sociology at large. Among the recent influences can be mentioned the work of the French philosopher Michel Foucault, the German social theorist Jürgen Habermas, feminism, postmodernism and deconstruction, neo-Marxism, and behaviorism. The variety of theoretical influences in the sociology of law has also marked the broader law and society field. However, although the multi-disciplinary law and society field remains very popular, the disciplinary speciality field of the sociology of law is today also "better organized than ever in institutional and professional respects."[9]

Law and society

In legal studies, the sociology of law is part of a more broadly conceived law and society approach or socio-legal studies. Its focus is on theoretically guided empirical studies. As such it draws on and contributes to social theory. The sociology of law is not to be confused with sociological jurisprudence. The latter is a juristic perspective, developed in the United States by Roscoe Pound and by earlier jurists in various European countries, that seeks to base legal arguments on sociological insights.

Selected topics

To be described:

  • Legal systems
  • Legal institutions
  • Law making (social construction of law and mores)
  • Social control
  • Dispute resolution
  • Social change
  • Legal profession
  • Developments in Sociology of Law

Sociology of law was a small, but developing, sub-field of British sociology at the time when Campbell and Wiles wrote their review of law and society research in 1976. Unfortunately, despite its initial promise, it has remained a small field. Very few empirical sociological studies are published each year. Nevertheless, there have been some excellent studies, representing a variety of sociological traditions. The two most popular approaches during the 1960s and 1970s were interactionism and Marxism. Interactionism had become popular in America in the 1950s and 1960s as a politically radical alternative to structural-functionalism. Instead of viewing society as a system regulating and controlling the actions of individuals, interactionists argued that sociology should address what people were doing in particular situations, and how they understood their own actions (see, for example, Becker, 1963). The sociology of deviance, which included topics such as crime, homosexuality, and mental illness, became the focus for these theoretical debates. Functionalists had portrayed crime as a problem to be managed by the legal system. Labeling theorists, by contrast, focused on the process of law-making and enforcement: how crime was constructed as a problem. A number of British sociologists, and some researchers in law schools, have drawn on these ideas in writing about law and crime (see, for example, Paterson, 1982; Flood 1983). The most influential sociological approach during this period was, however, Marxism--which claimed to offer a scientific and comprehensive understanding of society as a whole in the same way as structural-functionalism, although with the emphasis on the struggle between different groups for material advantage, rather than value-consensus. This approach caught the imagination of many people with left-wing political views in law schools, but it also generated some interesting empirical studies. These included historical studies about how particular statutes were used to advance the interests of dominant economic groups, and also Pat Carlen's memorable (1976) ethnography, which combined analytic resources from Marxism and interactionism, especially the sociology of Erving Goffman, in writing about magistrates' courts. The 1980s were also a fruitful time for sociology of law in Britain, mainly because Donald Harris deliberately set out to create the conditions for a fruitful exchange between lawyers and sociologists at the Oxford Centre for Socio- Legal Studies. He was fortunate enough to recruit a number of young and talented social scientists, including J. Maxwell Atkinson and Robert Dingwall who were interested in ethnomethodology, conversation analysis, and the sociology of the professions, and Doreen McBarnet who became something of a cult figure on the left after publishing her (1981) doctoral thesis, which advanced a particularly clear and vigorous Marxist analysis of the criminal justice system. Ethnomethodology has not previously been mentioned in this review, and tends to be over-looked by many reviewers in this field since it cannot easily be assimilated to their theoretical interests. One can note, however, that it has always offered a more radical and thorough-going way of theorizing action than interactionism (although the two approaches have a lot in common when compared to traditions that view society as a structural whole, like Marxism or structural-functionalism). During his time at the center, J. Maxwell Atkinson collaborated with Paul Drew, a sociologist at the University of York, in what became the first conversation analytic study of courtroom interaction, using transcripts of coroner's hearings in Northern Ireland (Atkinson and Drew, 1979). Another area of interest developed by the Oxford center during this period was the sociology of the professions. Robert Dingwall and Philip Lewis (1983) edited what remains an interesting and theoretically diverse collection, bringing together specialists from the sociology of law and medicine. The best known study to date has, however, been published by an American legal scholar (Abel, 1988) who employed ideas and concepts from functionalist, Marxist, and Weberian sociology to explain the high incomes and status that British lawyers enjoyed for most of the twentieth century. 13 Since the 1980s, very little empirical research has been conducted by British sociologists. There are, however, some exceptions. To begin with, sociology of law, along with so many areas of academic work, has been enlivened and renewed through engagement with feminism. 14 There has been a great deal of interest in the implications of Foucault's ideas on govemmentality for understanding law (Hunt and Wickham, 1996), and also in continental thinkers such as Niklas Luhmann and Pierre Bourdieu. Again, one can argue that rather fewer empirical studies have been produced than one might have hoped, but a great deal of interesting work has been published. A second exception is my own work (Travers, 1997; 1999), which has employed resources from ethnomethodology and symbolic interactionism in studying legal settings. You can tell that this is sociological rather than socio-legal research because it continually engages in debate with other theoretical traditions in sociology. My doctoral thesis about the work of a firm of criminal lawyers took other sociologists, and especially Marxists, to task for not addressing or respecting how lawyers and clients understand their own actions (a standard argument used by ethnomethodologists in debates with structural traditions in the discipline). It also, however, explored issues raised by legal thinkers like Cotterrell in their critique of structural traditions in sociology of law: the extent to which social science can address the content of legal practice.

See also

Related sociological subfields include political sociology and the sociology of deviance. Other social sciences, such as Anthropology, Criminology, and Political Science, also include specialized approaches to the study of law.

Notes

  1. ^ Jary, Collins Dictionary of Sociology, 636
  2. ^ Rottleuthner, La Sociologie du Droit en Allemagne, 109
    * Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521
  3. ^ Rheinstein, Max Weber on Law and Economy in Society, 336
  4. ^ Jary, Collins Dictionary of Sociology, 636
  5. ^ Johnson, The Blackwell Dictionary of Sociology, 156
  6. ^ Gurvitch, Sociology of Law, 142
    * Papachristou, Sociology of Law, 81–82
  7. ^ Deflem, Mathieu. 2007. "Sociological Theories of Law." Pp. 1410-1413 in Encyclopedia of Law and Society: American and Global Perspectives, edited by David S. Clark. Thousand Oaks, CA: Sage Publications.
  8. ^ Cotterrell, Emile Durkheim: Law in a Moral Domain (1999)
  9. ^ Deflem, Mathieu. 2007. "Sociological Theories of Law." Pp. 1410-1413 in Encyclopedia of Law and Society: American and Global Perspectives, edited by David S. Clark. Thousand Oaks, CA: Sage Publications.

References

  • Gurvitch, Georges; Hunt, Alan (1942—New edition 2001). "Max Weber and Eugene Ehrlich". Sociology of Law. Athens: Transaction Publishers. ISBN 0-765-80704-1.  
  • Jary, David; Julia Jary (1995). Collins Dictionary of Sociology. HarperCollins. ISBN 0004708040.  
  • Johnson, Alan (1995). The Blackwell Dictionary of Sociology. Blackwells publishers. ISBN 1557861161.  
  • (Greek) Papachristou, T.K. (1999). "The Sociological Approach of Law". Sociology of Law. Athens: A.N. Sakkoulas Publishers. ISBN 9-601-50106-1.  
  • Rheinstein, M. (1954). Max Weber on Law and Economy in Society. Harvard University Press.  

Further reading

  • Abel, Richard L. (1980) “Redirecting Social Studies of Law” in 14 Law and Society Review 803-29.
  • Aubert, Vilhelm (1994) Continuity and Development in Law and Society (Oslo, Norwegian University Press)
  • Aubert, Vilhelm (1980) Inledning till rättssociologi (Stockholm, AWE/GEBERS).
  • Aubert, Vilhelm, ed, (1969) Sociology of Law (London, Penguin)
  • Aubert, Vilhelm (1969) “Law as a Way of Resolving Conflicts: The Case of a Small Industrialized Society” in Laura Nader (ed.) Law in Culture and Society (Chicago, Aldine Publishing Company)
  • Aubert, Vilhelm, et al. (1952) En lov i søkelyset (A Law In the Searchlight), (Oslo, Akademisk forlag)
  • Banakar, Reza, Merging Law and Sociology: Beyond the Dichotomies in Socio-Legal Research (Berlin/Wisconsin, Galda & Wilch, 2003)
  • Banakar, Reza and Max Travers, eds, An Introduction to Law and Social Theory (Oxford: Hart, 2002)
  • Banakar, Reza and Max Travers, eds, Theory and Method in Socio-Legal Research (Oxford: Hart, 2005)
  • Banakar, Reza, “Law Through Sociology's Looking Glass: Conflict and Competition in Sociological Studies of Law” in THE NEW ISA HANDBOOK IN CONTEMPORARY INTERNATIONAL SOCIOLOGY: CONFLICT, COMPETITION, AND COOPERATION, Ann Denis, Devorah Kalekin-Fishman, eds., (London: Sage, 2009). An e-copy available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1327025.
  • Black, D. (1976) The Behavior of Law (New Haven, Conn. : Yale University Press)
  • Carbonnier, Jean (1994) Sociologie du droit (Paris: PUF Quadrige)
  • Carbonnier, Jean (2001) Flexible Droit 10th edn. (Paris: LGDJ)
  • Cotterrell, Roger (1992) The Sociology of Law: An Introduction 2nd edn. (Oxford: Oxford University Press / Butterworths)
  • Cotterrell, Roger (1995) Law's Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press)
  • Cotterrell, Roger (2006) Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Aldershot: Ashgate)
  • Cotterrell, Roger (2008) Living Law: Studies in Legal and Social Theory (Aldershot: Ashgate)
  • Cotterrell, Roger, ed, (2006) Law in Social Theory (Aldershot: Ashgate)
  • Cotterrell, Roger, ed, (2001) Sociological Perspectives on Law (2 vols) (Aldershot: Ashgate)
  • Dalberg-Larsen, Jørgen (2000) The Unity of Law: An Illusion (Berlin, Galda + Wilch Verlag)
  • [1] Mathieu Deflem, Sociology of Law: Visions of a Scholarly Tradition (Cambridge: Cambridge University Press, 2008)
  • Ferrari, V. (1989) “Sociology of Law: A Theoretical Introduction” in Ferrari, V. and Uusitalo, P. Two Lectures on the Sociology of Law. Helsinki : University of Helsinki, 1989. Sociology of Law Series, no. 6/101 at 7-31.
  • Ehrlich, Eugen (1936) Fundamental Principles of the Sociology of Law New Brunswick: Transactiuon Books reprint, 2002 (orig. 1913).
  • Griffiths, J. (1986) “What is Legal Pluralism” in Journal of Legal Pluralism and Unofficial Law at 24: 1-55.
  • Freeman, Michael, ed, Law and Sociology. Oxford: Oxford University Press, 2006.
  • Friedman, L. M. (1986) “The Law and Society Movement” in Stanford Law Review, at 38: 763-780.
  • Gurvitch, Georges (1932) L’idée du droit social: Notion et système du droit social (Paris: Librairie de Recueil Sirey)
  • Gurvitch, Georges (1947) Sociology of Law (New Brunswick, NJ: Transaction Publishers reprint)
  • Luhmann, N. (1985) A Sociological Theory of Law London: Routedge & Kegan Paul.
  • Macaulay, S. (1963) “Non-Contractual Relations in Business” in American Sociological Review, at 28: 55-67.
  • Nelken, David. (1984). “Law in Action or Living Law: Back to the Beginning in Sociology of Law” in Legal Studies, at 4: 157-82.
  • Nelken, David (1998) “Blinding Insights? The Limits of a Reflexive Sociology of Law” in Journal of Law and Society, at 25: 407-26.
  • Nelken, David, ed. (1997) Comparing Legal Cultures (Aldershot, Dartmouth)
  • Nelken, David, ed. (1996) Law as Communication (Aldershot, Dartmouth).
  • Nelken, David (1993) “The Truth About Law’s Truth” in European Yearbook of the Sociology of Law.
  • Nelken, David (1986) “Beyond the Study of ‘Law and Society’” in American Bar Foundation Journal 323.
  • Nonet, Philippe and Philip Selznick (1978) Law and Society in Transition: Toward Responsive Law (New York, Harper Torchbooks).
  • Petrazycki, Leon (1955) Law and Morality (Cambridge, MA: Harvard University Press)
  • Podgórecki, Adam. (1980). “Unrecognized Father of Sociology of Law: Leon Petrazycki.” Law and Society Review 15: 183-202.
  • Podgórecki, Adam (1991) A Sociological Theory of Law (Milano, Dott. A. Giuffre Editore).
  • Pound, Roscoe. (1943). “Sociology of Law and Sociological Jurisprudence.” University of Toronto Law Journal 5.
  • Santos, Boaventora de S. (1995) Toward a New Common Sense: Law, Science and Politics in The Paradigmatic Transition (London, Routledge).
  • Santos, Boaventura de S. (1989) “Toward a Postmodern Understanding of Law” in Legal Culture and Everyday Life (Onati, Onati Proceedings 1).
  • Santos, Boaventura de Sousa (1977) “The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada” in 12 Law and Society Review 5-125.
  • Sarat, Austin, ed, Blackwell Companion to Law and Society (Malden, Mass. and Oxford: Blackwell, 2004)
  • Stjernquist, P. (2001) Organised Cooperation Facing Law: An Anthropological Study (Stockholm: Almqvist & Wiksell)
  • Tamanaha, B. (1997) Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law (Oxford: Clarendon Press)
  • Teubner, Gunther (1993) Law as an Autopoietic System (Oxford, Blackwell)
  • Timasheff, Nicholas S. (1939) An Introduction to the Sociology of Law (Westport, Greenwood Press reprint, 1974).
  • Tomasic, Roman (1987) The Sociology of Law (London, SAGE Publications)
  • Travers, Max (1997) The Reality of Law: Work and Talk in a Firm of Criminal Lawyers (Aldershot, Dartmouth).
  • Travers, Max (1993) “Putting sociology Back into Sociology of Law” in 20 The Journal of Law and Society.
  • Ziegert, Klaus A. (1979). “The Sociology behind Eugen Ehrlich’s Sociology of Law.” International Journal of Sociology of Law 7: 225-73.

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