Relevance of Sociology for the study of Law
Relevance of Sociology for the study of Law
If societies are based upon agreed upon laws, then they are very much interrelated subjects. They are symbiotic, interwoven, interconnected. When someone commits a crime against another person or their property, they will have to face the consequences in a court of law. Or reduce it to a smaller group such as a tribe. Even amongst members of a tribe, there are laws that may only be verbal, or perhaps not even as formal as that. They are followed because children see them in the form of examples as they grow up. Within each tribe, culture or society, some form of punishment is enforced when a cultural norm is broken. Law can be analyzed sociologically as a method of doing something. Law can be studied as a social process, instrumented by individuals during social interaction. 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.
The sociology of law (or legal sociology) is often described as a sub-discipline of sociology or an interdisciplinary approach within legal studies. While some socio-legal scholars see the sociology of law as “necessarily” belonging to the discipline of sociology, others see it as a field of research caught up in the disciplinary tensions and competitions between the two established disciplines of law and sociology. Yet, others regard it neither as a sub-discipline of sociology nor as a branch of legal studies and, instead, present it as a field of research on its own right within a broader social science tradition. For example, Roger Cotterrell describes the sociology of law without reference to mainstream sociology as “the systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience”. The sociology of law became clearly established as an academic field of learning and empirical research after the Second World War.
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. 1. Critical sociologists developed a perspective of law as an instrument of power. 2. 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. 3. 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. 4. Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann, who sees law as normatively closed, but cognitively open system.
The essential insight underlying all sociological approaches to law is that law is a social phenomenon that should, therefore, be studied sociologically. Beyond this core unifying orientation, sociology and law, otherwise known as the sociology of law, or law and sociology, consists of a variety of different approaches, assumptions, and attitudes. This internal proliferation of approaches is the product of diversity at two different levels. 1. First: sociology and law are contrasting bodies of knowledge. Sociology is a social science focused on the study of society, and like all such disciplines its overarching goal is the gathering of knowledge. Law, in contrast, is a practical activity that focuses on completing certain fundamental tasks, including promulgating and enforcing rules, responding to disputes, and maintaining order.
2. Second: each of these contributing bodies of knowledge is in its own way internally driven, with sociology divided among various competing schools of thought and law divided among practitioners and theorists (adhering to competing schools of thought). When sociology and law are brought together, the differences between them, and the internal divisions that characterize each, are manifested in the combination of the two. In the United States, the primary academic influences in bringing sociology to law were philosophical pragmatism, sociological jurisprudence, and legal realism; the key figures were Oliver Wendell Holmes Jr., Roscoe Pound, and Karl Llewellyn. These schools of thought and figures were leaders in the critique of formalistic approaches to the law that dominated at the end of the nineteenth century and early twentieth century. Under formalist views, law was a gapless, logically coherent self-contained system that could be discovered and applied exclusively through consideration of legal concepts, principles, and rules, without regard to social context or consequences.
The figures identified above argued, to the contrary, that law was the product of social forces, that it was neither gapless nor systematic, that one could not move mechanistically from principle to application (choices had to be made), and that judges were influenced by the social background in their interpretation and application of law. Most important: they argued that law, far from being autonomous and self-standing, was above all else an instrument to serve social needs. An important social-political influence on their thought was the social programs of the New Deal, which resorted to law as the key mechanism for implementing social policy. It follows this cluster of views that the efficacy of law, and its social consequences, must be carefully evaluated. Hence the call for the application of sociology to law. The early agenda for sociology ranged from studying the gap between “law in the books” and “law in action,” to discovering the social influences on the making, the application, and the interpretation of law, to learning whether law is effective in achieving social policy, and how it can be made more effective when it is not.
Many sociological studies of law, from the study of crime to influences on judicial decision-making, were conducted to meet this call. Under the influence of sociologist E. A. Ross, law came to be understood as a mechanism of social control, and the thrust of many studies was to make law more efficient and effective in accomplishing this task. A backlash against this jurisprudence-dominated agenda gradually developed from the sociological standpoint, which decried the instrumental use of sociology as a “handmaiden to law.” As the science of society, the application of sociology to law, it has been argued, should take place in the context of general theories about society, with proper attention paid to epistemological and methodological concerns. The classical sociological theories about law—famously including 1. Émile Durkheim’s view of law as the essential element integrating modern society, 2. Max Weber’s ideal-type analysis of the kinds of law found relative to kinds of societies, and 3. Karl Marx’s characterization of law as determined by economic forces, serving the dominant class all possessed these qualities.
4. A modern sociological theory of this type of law is Donald Black’s view, which assumes a positivistic stance of measuring law in quantitative terms, and articulates a series of “laws” of legal behavior based upon patterns he observes relating to factors like degree of social stratification. A different current source of criticism of the jurisprudence-influenced approach to sociology and law comes from critical schools of sociolegal theory, including “critical empiricists” and “post-empiricists,” which reject positivism and many of the epistemological underpinnings of classical sociology (including the fact/value distinction).
Adherents criticize sociology and law as currently practiced as a conservative tool that serves to preserve the status quo by enhancing the efficiency of law and by failing to scrutinize and reveal the institutional structures and ideological beliefs about law circulating in society which perpetuate (class-based, gender-based, and/or race-based) oppression and domination. Sociological approaches to law, according to this view, must reject the agenda set by jurisprudence, and instead seek to expose all forms of domination perpetuated through law. Sociology and law thus encompasses divergent perspectives on law. Despite significant internal schisms, a growing community of scholars and body of discourse has developed around the combination of sociology and law, united by the shared commitment to view law as a social phenomenon that must be examined in sociological terms.
Functions of law
* Social control
* Dispute resolution
* Social change
There are two basic processes of social control:
1. the internalization of group norms and
2. control through external pressures.
In Chtonic societies, social control is ensured by the fact that socializing experiences are very much the same for all members. Even in larger societies, social control rests largely on the internalization of shared norms. Formal social control is characterized by:
(i) explicit rules of conduct,
(ii) planned use of sanctions to support the rules, and
(iii) designated officials to interpret and enforce the rules, and often to make them. Law does not have a monopoly on formal mechanisms of social control. Control through law is usually exercised by the use of negative sanctions and not by positive rewards. A person that obeys the law does not receive an award.
Mechanisms of social control through law: (i) Criminal sanctions, (ii) civil commitment, and (iii) administrative licenses. Criminal sanctions: the purpose of sanctions: Retribution (denounce unlawful conduct) Deterrence (both specific and general), Rehabilitation of the offender. Civil commitment: medicalization of social problems, such as drug abuse, alcoholism, etc. Administrative law: administrative regulations is used as a means of social control.
By the parties themselves: physical violence, family feud, lumping it, avoidance, etc. By adjudication:
ADR: negotiation (without the help of any third party), mediation (third party helps disputants), and arbitration (third party makes a final and binding decision, which is enforceable). Hybrid resolution processes: rent a judge (like arbitration, but with a retired judge), med-arb (issues not solved by mediation are sent to arbitration where the mediator becomes arbiter), and mini trial (if there is no settlement before the “sentence” the adviser gives her opinion about the likely outcome if the dispute were litigated). Adjudication: a formal method of conflict resolution, where a third party –the courts- intervenes –even if not wanted by the parties- and renders a decision which is enforceable.
Law is both a dependent and an independent variable, i.e., an effect and a cause of social change. The question is not whether law changes society or whether social change alters law, but rather, what level or under what circumstances change is produced.
Examples of social changes as causes of legal changes: Soviet Union, China, and other radical revolutions. Examples of legal changes as causes of social changes: adultery, sexual assault, etc. Problems of interaction between sociologists and lawyers Sociologists study everything about the law, except for rules –institutional structures, processes, behavior, personnel, and culture. Lawyers and sociologists don’t speak the same language. There is a special rethoric of law. It has its own vocabulary, an arcane writing style, and a form of irritating citation. There are also differences in professional culture. Lawyers are advocates. They are concerned with the identification and resolution of the problems of their clients. Sociologists consider all evidence on a proposition and approach the problem with an open mind.
Lawyers are guided by precedents and past decisions control current cases. In contrast, sociologists emphasize empirical research. Lawyers and law professors tend to believe that they have a monopoly over law. This is as if physicians thought that they had a monopoly over the bodies. The pronouncements of law are predominantly prescriptive: they tell people how they should behave and what will happen to them if they don’t. In sociology, the emphasis is on description, on understanding the reasons why certain groups of people act in a certain way in specific situations. The law reacts to problems most of the time. The issues and conflicts are brought to lawyers by their clients outside the legal system. In sociology, issues and concerns are generated within the discipline on the basis of what is considered intellectually challenging, timely, or of interest to funding agencies. These differences are due in part to the different methods they use.
University/College: University of Chicago
Type of paper: Thesis/Dissertation Chapter
Date: 24 October 2016
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