Law As Constitutive Research Paper

1. Classic Conceptions

Classic legal sociology, represented especially by the work of the Austrian jurist Eugen Ehrlich at the beginning of the twentieth century, confronted the constitutive role of law as an urgent political question: to what extent can the law of the nation state define the nature of social relations in the face of powerful competing moral forces? (Ehrlich 1975). In a multicultural society (such as the disparate and fragmented Austro-Hungarian empire of Ehrlich’s time) in which diverse religious and ethnic influences on social life remained strong and sometimes antagonistic to the values enshrined in state law, Ehrlich concluded that state law’s constitutive power is limited and it must learn from, as much as seek to control, informal norms of social life. Many other theories in the formative era of modern legal sociology carried similar messages: law was either rooted in existing culture and established collective understandings, or was enfeebled by its separation from them. The idea is expressed in Sumner’s (1960) view in 1906 that effective legislation must be consistent with social mores, in Pound’s (1917) insistence on the ‘limits of effective legal action’ and in persistent echoes of von Savigny’s (1975) claim in 1814 that law must be rooted in a ‘common consciousness’ (Volksgeist) of the people, which it expresses but cannot change.

According to all such views, because law is strong when it represents popular understandings and weak when it runs counter to them, its power to constitute social relations is circumscribed. Law has a degree of independent social power only in so far as it avoids intruding on matters of belief or deeply rooted traditional practice. Technically-oriented law can be effective, while expressive (ideologically charged or value-infused) law is relatively weak in effect unless the values and understandings it presupposes are already in place in social life.

Thus, an important agenda for sociology of law in the second half of the twentieth century became the exploration of the conditions under which law’s regulatory techniques could be used to bypass the assumed inertia of culture, or to shape specific kinds of social relations in ways that might indirectly encourage more general social change. In an era (especially from the 1960s) in which urgent attempts were made to harness law to tasks of social engineering (for example, in preventing racial and sexual discrimination), the idea that law could only mirror established systems of values and beliefs symbolized legal sociology’s practical task: to confront cultural obstacles that stood in the way of the successful use of law as an instrument of social change. Law as an instrument of social control or social change was limited by its cultural dependence and by its general lack of power to constitute popular understandings, values, and beliefs.

Classical social theory supported this view of law obliquely only. Emile Durkheim’s sociology treats law as merely one dimension of a larger moral universe. Law neither constitutes nor is constituted by moral understandings and moral bonds, but is an aspect of them; it is these bonds and understandings that constitute society (Cotterrell 1999). Max Weber, associating modern law with a particular kind of rationality, sees the development of law as running parallel to other kinds of rational reordering of Western experience (Kronman 1983), though his sociology remains ambiguous as to the nature of law’s specific contribution to a more general modern ‘rationalization’ of life. Karl Marx’s conception of law as part of the superstructure of a mode of production is also ambiguous about law’s ‘independent’ constitutive role, but suggests that this role will, at best, be limited. Thus, while law may provide indispensable support (ideological and repressive) for a mode of production, it cannot, according to standard Marxist analyses, constitute such a mode, or change it in any historically fundamental way. Nevertheless, law constitutes, in the sense of formalizing and defining, relations and understandings of contract and property. To that extent it contributes powerfully to ideology in capitalist societies.

2. Modern Critical Perspectives

The Marxist-derived idea of law framing consciousness (by shaping ideas of responsibility, ownership, freedom, consent, agreement, causality, authority, etc.) has been a very important basis of recent ideas of the constitutive power of law, especially as a result of its advocacy as a central tenet of the modern critical legal studies movement. Critical legal studies (CLS), developed in many Western countries and especially in the United States from the 1970s, had a major influence on the destruction of old ideas of law as a passive reflection of other social forces. Its effect on sociology of law has been to help to turn attention away from questions about how law might be made more effective as an instrument of social change, and towards studies of law’s power to reinforce established social practices and institutions, primarily by influencing collective understandings. Thus, because of the continual invocation of basic legal concepts, especially those of property and contract, in everyday regulatory practice, law, in the CLS view, contributes importantly to the ‘reification’ of concepts, that is, the turning of debatable ideas into settled, widespread, usually unchallenged understandings.

Marxist legal theory in its most sophisticated forms (e.g., Pashukanis 1978) and modern critical legal theory emphasize that law shapes ideas of personality and subjectivity which influence much wider currents of social thought. Thus, law defines who can be responsible for actions and who can engage in transactions that will be legally recognized. In particular societies at particular times, children, married women, mentally handicapped people, prisoners, and aliens of the state (foreigners) have been treated as wholly or partly lacking legal capacity (for example, to own property directly). Thus, for certain purposes, law constitutes human capacities or denies them. Correspondingly, law routinely gives personality and capacity to nonhuman entities. In various societies these have included religious idols and animals, but in modern law by far the most important example of the construction of nonhuman personality is the attribution of legal personality to the business corporation. This attribution constitutes the corporation as an entity entirely separate from the human individuals who work within it. In recent critical legal scholarship, the concern with law’s constitution of personality has broadened to focus on the wider range of effects of law on the construction of identity.

Feminist theory has emphasized that law has typically constituted the human person in terms of male characteristics. In the past this legal stance was often explicit, with legal doctrine’s denial of women’s legal personality in certain contexts (for example, as property owners). Modern feminist theory has shown how legal thought and practice ignores differences between women’s and men’s experience, or covertly assimilates the former to the latter, applying a ‘male standard’ to the definition of all social relations, capacities, and responsibilities. It has been claimed that law constructs women (in its typical rhetoric and evaluations) as ‘terrorized, sexualized and maternalized’ (Frug 1992). In a host of studies, critical socio-legal scholarship has also focused on the legal construction or denial of the social identities of minority groups and, more generally, on law’s power to define and exclude ‘the other’ in sharp opposition to an image of the ‘normal’ subject of law.

The effect of this cumulation of critical work is a widespread rejection among socio-legal scholars of the doubts about law’s social importance that long haunted legal sociology. In their place is a confidence that legal ideas and practices are central matters for sociological study. The older legal sociology sometimes slipped into the self-defeating position of holding that law ‘mirrored’ society (thus implying not only law’s lack of social scientific importance but also its ‘non-social’ identity as ‘merely’ technical regulation and so its substantial immunity from conceptualization as a social phenomenon in itself ). The newer emphasis on law as constitutive asserts law’s power to shape fundamental collective understandings and practices that define the nature of social life. Taken to extremes, this position can suggest that law constitutes the very idea of society, rather than society constituting law (Fitzpatrick 1995). A further step might be to discard all reified conceptions of ‘society’ or even of ‘the social’ as a category (on the basis that the social picture is now too fluid and complex to allow such encapsulations or to allow these concepts to retain analytical power). The aim then would be to focus specifically on the particular kinds of social conceptions (for example, of identity, community, culture) which legal doctrine itself proposes, assumes, or sustains. In a sense, such an approach entirely reverses the conception of law as mirror of society; the social (whether or not it remains possible to conceptualize this as any kind of totality) is seen as the construction of law.

3. Limitations Of Constitutive Approaches To Law

The danger of these approaches is partly that of greatly exaggerating law’s constitutive power (how can we know that law does the constituting and, even if it does, under what conditions and constraints?). Jurists have long been tempted in this way, some even speculating that law largely determines morality by contributing to socialization (Olivecrona 1939). Philosophers and jurists note law’s ‘word-magic,’ the power of legal words as ‘performatives’ to bring about social effects, such as inaugurating marriages, creating personal statuses, or transferring property (Austin 1982). But these formal effects raise rather than answer questions about law’s social character. The risk is of attempting to analyze law in isolation from other social forces, treating it (as the earlier ‘mirror’ conceptions tended to do) as separate from other aspects of social life, with a causal relationship existing between the two. This danger has been especially serious for CLS which, being essentially a law school movement rather than a movement in social science, has tended to assume law’s social significance and power (in conformity with the main trend of lawyers’ thinking throughout modern times) rather than seeking to assess it systematically and empirically in a wider social context.

Equally, it is not always recognized sufficiently that law’s constitutive power may vary greatly in different societies. In some societies, its power to shape ways in which politics is conducted, social movements are formed and their campaigns or collective strategies are pursued, may be clear if complex in its effects (Brigham 1996). In other societies, complex cultural factors make law much less capable of constituting the form and character of social relations. Indeed, they might make it largely irrelevant.

It is also significant that one influential and sophisticated theoretical approach in contemporary legal sociology entirely rejects the idea of law as constitutive of society, because it denies that law as a system can communicate with, and so influence, social life in any direct way (Teubner 1993). Autopoiesis theory sees modern law as a discourse that normatively constitutes (more specifically produces, reproduces, and observes) only itself. One consequence is that its conceptions of agency, responsibility, personality, subjectivity, etc. are produced solely for its own purposes and processes and have no necessary relation to anything existing outside these. Far from constituting economic, scientific, political, or cultural life, law produces decisions to which these other social systems may respond on their own terms. Autopoiesis theory denies all conceptions of law as a mirror of society. At the same time, its assertion of law’s radical discursive autonomy deliberately provokes endless questions as to how law can engineer social effects that are other than intolerably unpredictable.

4. The Plurality Of Legal Experience

Some recent sociolegal approaches have discarded both the idea of law as mirror of society and that of law as a more or less independently constitutive force in social life, and have replaced these with a view of law as social mediation (e.g., Mertz 1994). Law thus appears as one way (or perhaps a cluster of ways, if it is not seen as a unitary discourse or practice) in which social experience is mediated, conceptualized, defined, and evaluated.

Such an approach presents its own difficulties as a sociological conception of law. If law mediates the social in some way, what enables it to do so, and from where does its power or authority to mediate derive? What is the nature of law if it is, in some way, separate from the social life that it mediates? These questions are ultimately no different from those which haunt the idea of law as constitutive. (Where does law derive its power or authority to constitute social life? And how, in what way, is law separated from social life in order to constitute it?)

In answering these questions the temptation is often to dissolve one term into the other. Thus, law may be seen as, for all practical purposes, constituting the social, so that the latter ceases to exist (at least for purposes of sociolegal analysis) as something independent of legal categorizations and evaluations. According to this view, law may certainly be studied in a social context, but its significance as an object of study requires no validation by social science. Alternatively, law can be seen merely as a mirror of social forces and social structure, meriting no special, independent sociological analysis; juristic concerns are socially insignificant unless reducible to general sociological categories and concepts.

A productive approach may be available to avoid both of these positions. Law is sometimes conceptualized sociologically as an aspect or field of social experience (e.g., Cotterrell 1995). In this sense, it is a component of social consciousness, a normative patterning of experience or a framework of understandings or practices. As an aspect of social life, it is to be separated from other social phenomena only provisionally and contingently for purposes of study. Important antecedents of this approach exist in legal sociology (Gurvitch 1947), but they have been obscured, to some extent, by approaches that treat law entirely as an instrument of the state. Viewed in this state-focused way, law’s constitutive power appears problematic or mysterious, given (a) the state’s frequently noted remoteness from the local milieux it regulates and (b) the increasing production of law by agencies other than the state. Law may, however, be understood pluralistically as existing not only in the practices and procedures of state agencies, but in the everyday circumstances, sites, and settings of a wide variety of social groups and networks. Legal experience, according to this view, is the subjective experience of individuals and groups confronting, in these diverse environments, ‘local’ issues of governmental regulation and social control. An approach along these lines will see law as constituting social life insofar as it is itself embedded in social life, in expectations about security, responsibility, and other matters. At the same time, state law (the legal practice of lawyers and courts serving the centralized state) needs not merely to be politically constituted, according to criteria of political legitimacy, but also (from a pluralist perspective) morally constituted by its relation to the social experience of the populations it purports to regulate. From this perspective, the issue of law’s moral authority identified by Ehrlich a century ago still remains crucial for modern law.

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