First principles

Although socio-legal perspectives might appear to be an 'add-on' to a standard rule-based syllabus, they are better conceptualized as a different approach altogether. A comparison of two books on the same area of law will demonstrate the differences between the doctrinal and the socio-legal approach. Mark Pawlowski and James Brown's Undue Influence and the Family Home carefully analyses the large body of case law, whose lack of consistency is deplored by the authors; they conclude by calling for a 'coherent statutory code' (Pawlowski and Brown, 2002, p. x). Belinda Fehlberg's Sexually Transmitted Debt: Surety Experience and English Law focuses rather on the parties involved in the cases - the banks, lawyers and the sureties themselves - to expose law's failure to take account of the complexities of intimate relations and the difference between commercial and conjugal motivations (Fehlberg, 1997, p. 71). For Fehlberg, the problem is not the incoherence of the law but the unjust effect of its operation on women. She challenges the judges' universal assumption that the family home should always be available as security for business loans, and suggests that the way forward is a programme of education to empower women to resist their husbands' demands (pp. 281-2).

Fehlberg's work shows that a socio-legal perspective is about seeing law in its social setting. For socio-legal scholars, laws do not exist in their current form because those are correct or the only possible ones but because they are artefacts constructed out of a dozen or more factors rooted in the politics, economy, demography and social mores of the place and time as well as the personalities concerned. Knowing this means that we cannot accept legal rules at face value; we think about what social forces produced them, how they impact on different groups, what alternatives are possible and desirable. We accept law's authority, of course, but not necessarily its truth or its justice. We identify injustices in the law and the legal process, and we argue for reform - in the pursuit not of the abstract consistency often favoured by the doctrinal lawyers, but of justice for all. Sometimes we throw up our hands and argue that the best prospects for justice lie outside the law altogether.

 
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