Sociology Of Law Research Paper

Sociology of law has been developed as an empirical knowledge, with theoretical foundations, aimed at describing and explaining the mutual relationships between law in its various forms, and social structures, social institutions, culture, ideologies, and values. Its objective is to unravel the various social and cultural influences that shape the law, whether law is produced by the legislator, the courts, or professionals of law and, conversely, to throw light on the action exerted by law in social life, social structures, and social change.

1. The Origins Of Legal Sociology

Two sources can be identified as the origins of legal sociology. The first is the questioning of legal formalism (by American legal realism and Roscoe Pound’s ‘sociological jurisprudence’), of legal positivism (by the German Free School of Law), and of the dominant theory of natural law (Weber). Maybe more than any other school of thought, American legal realism has exerted a long-lasting influence upon Anglo-Saxon sociology of law (US, Canadian, Australian) through its emphasis on ‘living law’ (i.e., law as it is currently interpreted and applied by the courts) and through the mixture of scientific and pragmatic orientation that characterized an approach largely inspired by the experience that judges had gained of the judiciary decision-making process (Hunt 1978).

The second source of legal sociology can be assigned to the importance attributed to law by the founders of sociology in understanding and explaining society, especially modern society. Accordingly, the origins of legal sociology go back to the origins of sociology itself. Montesquieu’s L’Esprit des lois (1748) was the first treatise of general sociology as well as of legal sociology. The founding fathers of sociology in the nineteenth century and the beginning of the twentieth century (Marx, de Tocqueville, Weber, Durkheim, Tarde, Ross) were all aware of the central position occupied by law and the legal professionals in the structuring of social life. Law appeared to them as one major source of social control, and as being variously implied in social change. After being so predominent in the works of the founders of sociology, the interest in law declined among succeeding generations of sociologists (almost to the point of its disappearance)—with the exception of criminology. It is mainly since the 1970s that a renewed interest in legal sociology has become evident and that it has been officially reintegrated into sociology.

Modern sociology of law extends in various directions: it is a building with many rooms. But the building lacks a blueprint. The insufficiency of any broad general theoretical scheme to unite the scattered pieces of the whole is often lamented. This research paper can do no more than reflect this state of affairs.

2. Law And Social Order

The founders of sociology were mesmerized by the fact that, despite the individualistic and egotistical tendencies of members of society and the potential reservoir of conflicts between them, there existed something resembling a general social order, to which they turned for some kind of fundamental explanation. In the production and reproduction of the ‘conscience collective,’ which he regarded as the basis of social order, Durkheim assigned a dominant role to religion and, to some extent, law. Law is partly responsible for the constraint that society imposes upon the individuals. Even though it is generally said that Durkheim did not produce a systematic sociology of law, law is found in practically all his writings (Lukes and Scull 1983) and he is responsible for the place that law occupied in the Annee sociologique and in the Ecole française de sociologie under his intellectual leadership.

In answer to his quest for a concrete symbol and index for the broad concept of social solidarity, Durkheim turned to the law. The two types of social solidarity he identified were represented by two types of law: the mechanical solidarity of traditional societies was associated with repressive law, while the organic solidarity of the advanced division of labor in industrial societies was associated with restitutive law. Within the realm of repressive law, Durkheim explored the social functions of crime and its punishment through the permanent reproduction of the essential values of the ‘conscience collective’ and society. Contract, a legal form typical of restitutive law, also received Durkheim’s attention. But here again Durkheim insisted on the social dimensions of contract—society being the ‘third party’ with the rituals, symbols, and general rules it provides to the individual parties.

Because of his views, Durkheim is regarded as the founder of the functionalist approach to law. Through its various functions, law plays a central role in the production and reproduction of different types of social order; the presence of law is an essential factor to explain how society perpetuates itself over time.

Durkheim’s functionalist approach to law was subsequently transformed into the systemic scheme developed by Parsons. It is the integrative function of law as part of the social system that Parsons emphasized. The systemic approach, however, has also been used to explore in greater detail the relative autonomy of the legal subsystem in its relations with other subsystems within the social system.

3. Law, Social Class, And Capitalism

Marxism has exerted a strong influence on modern legal sociology, giving way to various interpretations of law. Beyond its variations, Marxist approach to law is founded on Karl Marx’s materialistic model of society and historical evolution. Marx himself had been trained in law and philosophy of law and although, like Durkheim, he did not provide a systematic sociology of law, he addressed law throughout both his work and that in which he collaborated with Engels. In class societies, he argued, law and legal institutions reflect and serve the interests of the dominant class. This is even more the case in capitalist societies where social classes are polarized and class struggle has come to its extreme intensity. Marx foresaw that the proletarian revolution would eventually result in the withering away of both law and the state.

After the Soviet Revolution of 1917, an intense debate took place in the new USSR between those who adhered strictly to Marx’s views about the future of law and those who saw law as playing an essential ‘parental’ role in educating the new socialist citizen (Berman 1963). Ultimately, Marx’s predictions were not retained. But his analysis of law in terms of class dominance, class struggle, the production and reproduction of economic and social inequalities has remained at the core of modern Marxian sociology of law. Marxian legal sociology has taken pains to emphasize the role of law in structuring and reproducing the capitalist economy based on the alienation and exploitation of the labor class, in generating the ideological superstructure for justifying the class society and the interests of the dominant bourgeoisie, and in formulating an abstract legal definition of the citizen detached from his or her real life conditions (Cain and Hunt 1979, Michel 1983). Marxian legal sociology has also had a more indirect, but nonetheless real, influence on the various orientations taken by critical approaches to law, whether in European legal sociology (Miaille 1976) or in the US movement called ‘critical legal studies’ (Unger 1983).

4. Law, Rationality, And Capitalism

Among the founders of sociology, Max Weber was the first to elaborate an explicit and quite detailed sociology of law, and to treat law, legal professionals, and legal institutions in a rigorous and systematic way. In what is considered his major work, Wirtschaft und Gesellschaft, an entire section was entitled ‘Sociology of law’ (Weber 1954). Moreover, Weber often referred to law in his great comparative analysis of religion, in his Economic History, and in his history of economy and society in antiquity.

Weber made both theoretical and empirical contributions to legal sociology. His theoretical contribution lies in his typology of legal forms of thinking along two axes: the irrational/rational one and the formal/substantive one. These forms produced four types of legal systems: the formal irrational, the substantive irrational, the formal rational, and the substantive rational. In the increasing rationalization that he identified as unique to the Western world, Weber used this theoretical scheme to underline empirically the dominant role played by law. Law evolved toward more and more rational justice, which was an outcome as well as a factor in the process of Western rationalization. At the same time, more rational law contributed to ease the emergence of the capitalist economy by the greater predictability it provided, as well as by the connection established between contractual freedom and the expansion of the market. Weber also emphasized the part played by various types of legal professionals (legal honoratiores) in the structure and evolution of law throughout the ages and in the progressive divorce of law from religion, politics, and morals.

It has been argued that a full understanding of Weber’s sociology of law requires interpretation within the broader framework of his Wirtschaft und Gesellschaft, as well as that of his sociology of religion (Kronman 1983, Coutu 1995). Such is the case because the roots of the notions of rationality and rationalization and their relationships to capitalism, which are central to his sociology of law, are to be found in his comparative historical analysis of the various types of economic ethics. Max Weber’s contribution to the sociology of law is the most systematic and, at the same time, the most broadly and deeply sociological.

5. Law And Inequalities: The Feminist Sociology Of Law

Feminist studies that have questioned the legal assumption of ‘equality of all before the law’ and of a value-free justice represent the most vibrant branch of critical legal studies. Feminist legal sociologists, more than any others, have been critical of what has been called ‘the official version of law’ which they describe as a view of law as being rational, objective, impartial, and neutral (Naffine 1990). It is this view of law that feminist legal studies hold to be mostly responsible for the sexist dominant legal ideology, essentially dictated by a male view of law and humankind (i.e., mankind) (Comack 1999). Feminist legal sociology has been very efficient in pointing out the male stereotyped definition of the subject of law and the unequal treatment of women by the law and its myriad authorities.

Being both theoretically and pragmatically oriented, feminist legal sociologists have documented many of the problems faced by women when dealing with the law and the courts. They have especially emphasized how judges and lawyers tend to use a discourse that dichotomizes reason and emotions, with the consequence that reason is inevitably identified with masculinity and emotions with feminity: male reason becomes opposed to female unreasonableness (Lees 1994). The analysis of how courts have been dealing with cases of rape and homicide of women has served more than any other to highlight the sexist interpretation currently resorted to by police, lawyers, juries, and judges in defense of male offenders (Busby 1999).

More than any other branch of critical legal sociology, the feminist approach has been activist and militant—involved in lobbying to change the law and to influence the courts in favor of a more just treatment of women.

6. Sociology Of The Legal Profession And The Courts

Following Weber’s emphasis on legal professionals, sociology of law has actively investigated the legal profession. Legal sociology joins here with the sociology of professions. Several studies have dealt specifically with various aspects of the legal profession. Far from being unified and homogeneous, the legal profession has been found to be highly differentiated. The increasing complexity of modern law has given rise to a growing number of specialties within the profession. The variety of the client interests has also been a major factor in differentiating between, for instance, legal practice with corporate clients and that with individual clients, as well as between lawyers working in public services and those working in private offices, in large or small offices, in criminal law or civil law. With differentiation comes a prestige scale within the profession, concomitant with the social prestige of the client (Heinz and Laumann 1982).

The lawyer’s relations with capital, their contribution to the evolution of Western capitalism, the mediating functions they take up between state and capital, as well as the role they play in the defense of powerless and socially excluded groups are among the main topics of a more critically oriented sociology of the legal profession. This approach has emphasized the various forms of power enjoyed by the legal profession (Cain and Harrington 1994). An alternative line of research has brought to light the contributions of legal professionals to the emergence of civil society in Western democracies, of political liberalism, and of liberal policies (Halliday and Karpik 1997).

Because judges are members of the legal profession, the functioning of the courts and the jury system has also been the focus of legal sociology. Much of what has been written on this topic has dealt with the judiciary decision-making process, with the explicit objective of improving it (Cramer 1981, Devlin 1979).

7. Legal Culture And Legal Socialization

Law is especially susceptible to constructivist interpretations. From this point of view, law is essentially a collective normative symbolic universe of linguistically conditioned mental representations, which are continuously reconstructed through their current use in active life. Social construction and reconstruction is part of law’s very nature. Two varieties of such constructions can be distinguished. The first legal culture is that of legal professionals who have been trained in knowledge of the law of a given land and who share the ideological universe of the profession as well as its corporatist interests. The other is the legal culture of lay people and the relative and (more or less) approximate knowledge they have of the law as well as their attitudes and behavior toward the law, its institutions and professionals. The interaction between these two legal cultures varies both in terms of distance and intensity; both are greatest in modern society, following the professionalization of law.

The socialization process into a legal culture is an important chapter in legal sociology. Two major theories of the psychology of learning have been tested: the cognitive development paradigm based on Piaget’s and Mead’s works and the social learning paradigm that emphasizes the role of affectivity and environmental context. Legal socialization is one way to explain why a particular individual is either a law-follower or a law-breaker (Cohn and White 1990). At the same time, compliance with the law has proved to be determined or conditioned by other contextual factors, such as rewards and sanctions, regulating agencies, and social environment (Friedland 1990).

It is especially in relation to culture and socialization that the indirect symbolic power of the law (based on nonlegal values and sanctions) can be appreciated, as opposed to its direct instrumental efficiency.

8. Law, Law Making, And Social Change

The association between law and social change is complex and many faceted. It is often said that law always lags behind changes taking place in society. A good number of examples can, however, be brought forward to illustrate the fact that law is quite often used by the legislator and sometimes by the courts to bring about various (sometimes radical) kinds of social changes, and that different segments of society must progressively adjust to changes generated by the law. Law can launch social change as well as block or inhibit it.

The law-making process in modern democracies has been one vantage point from which to explore the role of law in social change. An important distinction has been made between the instrumental and the symbolic function of law making (Tomasic 1985). It sometimes happens that the legislative process is part of a political strategy aimed more at symbolically exhibiting the legislator’s good will than implementing the law.

On the other hand, ‘legislative sociology’ has emerged as a special branch of legal sociology, which is used to help the legislator enhance the effectivity of the law (Carbonnier 1978). Within this branch, the legal sociologist is explicitly invited to get actively involved in contributing to social change. This approach has also been interrogated as part of what has been called the political sociology of law—an analysis of interstices of the legal and political regulation of society (Commaille 1994).

9. Legal Pluralism

An important current of thought which has recently developed and expanded, emphasizes the fact that law is but one of the regulatory agents in society. In this pluralistic approach, law is theorized and empirically analyzed as part of a broader normative system that includes ethics as well as various kinds of technical, professional, and administrative normativities.

A major source of legal pluralism has been anthropological analyses of the meeting of indigenous and colonial laws (Rouland 1988). But even in modern societies, where the legal system has proliferated and become dominant, many other types of social control and social regulation exist alongside the state legal system. This is especially the case with the formal and informal disciplinary procedures currently operating in industrial and bureaucratic organizations (Henry 1983, Arthurs 1985).

Legal pluralism has also served to highlight the ways in which law is produced by the legislator and interpreted by the courts via the incorporation and legalization of rules and norms from other normative systems external to the law itself. It has also underlined how the effectivity of the law is often dependent upon the interaction between formal legal rules and nonlegal principles—between rules and norms.

10. Conclusion

Law is never created, applied, or used without some kind of relationship with the various powers in any given society. The most obvious case is, of course, the role played by political power (in the form of ‘the state’) in any matter involving the law. Political power is the main producer of law, both as legislator and judge. It is political power that guarantees the legitimacy of the law at the same time that the law grounds the legitimacy of the political power: modern society is especially characterized by a fundamental circularity of the foundations of legitimacy between state and law.

Economic power has a less visible, but nonetheless effective, influence upon the law. Big business is generally well organized and has the expertise to lobby legislators and to successfully bring its case before the courts.

In modern democracy, a growing number of interest groups promoting ideological (as well as other) interests have learned how to both influence and use the law. Finally, the media—supposedly the voice of public opinion—also play an active role in influencing legislators and, sometimes, the courts.

In sum, it can be said that in most social conflicts, law is an issue dividing parties as well as a tool they use to promote their interests.

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