OVERVIEW OF THE STUDY OF LAW AND SOCIETY
All through history, every human society has had mechanisms for the declaration, alteration, administration, and enforcement of the rules and definitions of relationships by which people live (Glenn, 2010). Not all societies, however, feature a formal legal system (courts, judges, lawyers, and law enforcement agencies) to the same degree (Grillo et al., 2009). For example, in today’s poor, agricultural nations, the formal systems of property rights taken for granted in industrial nations simply do not exist. In poor nations, most people cannot identify who owns what, addresses cannot be verified, and the rules that govern property vary from neighborhood to neighborhood or even from street to street (de Soto, 2001). The notion of holding title to property is limited primarily to a handful of elites whose assets are identified in the formal documents and legal structures common in industrial nations.
Moreover, today’s agricultural societies rely mostly on custom as the source of legal rules and resolve disputes through conciliation or mediation by village elders, or by some other moral or divine authority. As for law as we know it, such societies need little of it.
Traditional societies are more homogeneous than modern industrial ones. Social relations are more direct and intimate, interests are shared by virtually everyone, and there are fewer things to quarrel about. Because relations are more direct and intimate, nonlegal and often informal mechanisms of social control are generally more effective.
As societies become larger, more complex, and modern, homogeneity gives way to heterogeneity. Common interests decrease in relation to special interests. Face-to-face relations become progressively less important, as do kinship ties. Access to material goods becomes more indirect, with a greater likelihood of unequal allocation, and the struggle for available goods becomes intensified. As a result, the prospects for conflict and dispute within the society increase. The need for explicit regulatory and enforcement mechanisms becomes increasingly apparent. The development of trade and industry requires a system of formal and universal legal rules dealing with business organizations and commercial transactions, subjects that are not normally part of customary or religious law. Such commercial activity also requires guarantees, predictability, continuity, and a more effective method for settling disputes than that of trial by ordeal, trial by combat, or decision by a council of elders. As one legal anthropologist noted, using the male pronouns common in his time, “The paradox . . . is that the more civilized man becomes, the greater is man’s need for law, and the more law he creates. Law is but a response to social needs” (Hoebel, 1954:292).
In the powerful words of Oliver Wendell Holmes, Jr. (1963:5), “the law embodies the story of a nation’s development through many centuries.” Every legal system stands in close relationship to the ideas, aims, and purposes of society. Law reflects the intellectual, social, economic, and political climate of its time. Law is inseparable from the interests, goals, and understandings that deeply shape or compromise social and economic life (Posner, 2007; Sarat and Kearns, 2000). It also reflects the particular ideas, ideals, and ideologies that are part of a distinct “legal culture”—those attributes of behavior and attitudes that make the law of one society different from that of another (Friedman, 2002).
In the academic discipline of sociology, the study of law embraces a number of well- established areas of relevant inquiry. Sociology is concerned with values, interaction patterns, and ideologies that underlie the basic structural arrangements in a society, many of which are embodied in law as substantive rules. Both sociology and law are concerned with norms—rules that prescribe the appropriate behavior for people in a given situation. The study of conflict and conflict resolution are central in both disciplines. Both sociology and law are concerned with the nature of legitimate authority, the definition of relationships, mechanisms of social control, issues of human rights, power arrangements, the relationship between public and private spheres, and formal contractual commitments (Baumgartner, 1999; Griffin, 2009). Both sociologists and lawyers are aware that the behavior of judges, jurors, criminals, litigants, and other consumers of legal products is charged with emotion, distorted by cognitive glitches and failures of will and constrained by altruism, etiquette, or a sense of duty.
Historically, the concern of sociology and other social sciences (anthropology, economics, psychology) with law is not novel. Early American sociologists, after the turn of the twentieth century, emphasized the various facets of the relationship between law and society.
E. Adamson Ross (1922:106) considered law as “the most specialized and highly furnished engine of control employed by society.” Lester F. Ward (1906:339), who believed in governmental control and social planning, predicted a day when legislation would endeavor to solve “questions of social improvement, the amelioration of the conditions of all the people, the removal of whatever privations may still remain, and the adoption of means to the positive increase of the social welfare, in short, the organization of human happiness.”
The writings of these early sociologists greatly influenced the development of the school of sociological jurisprudence, or the study of law and legal philosophy and the use of law to regulate conduct (Lauderdale, 1997). Sociological jurisprudence is based on a comparative study of legal systems, legal doctrines, and legal institutions as social phenomena; it considers law as it actually is—the “law in action” as distinguished from the law as it appears in books (Wacks, 2009). Roscoe Pound, the principal figure in sociological jurisprudence, relied heavily on the findings of early sociologists in asserting that law should be studied as a social institution. For Pound (1941:18), law was a specialized form of social control that exerts pressure on a person “in order to constrain him to do his part in upholding civilized society and to deter him from anti-social conduct, that is, conduct at variance with the postulates of social order.”
Interest in law among sociologists grew rapidly after World War II ended in 1945. In the United States, some sociologists became interested in law almost by accident. As they investigated certain problems, such as race relations, they found law to be relevant. Others became radicalized in the mid- and late-1960s, during the period of the Vietnam War, and their work began to emphasize social conflict and the functions of stratification in society. It became imperative for sociologists of the left to dwell on the gap between promise and performance in the legal system. By the same token, those sociologists defending the establishment were eager to show that the law dealt with social conflict in a legitimate fashion. At the same time, sociological interest in law was further enhanced by the infusion of public funds into research evaluating a variety of law-based programs designed to address social problems in the United States (Ross, 1989:37). These developments provided the necessary impetus for the field of law and society, which got its start in the mid-1960s with the formation of the Law and Society Association and the inauguration of its official journal, the Law & Society Review (Abel, 1995:9). A large number of professional journals now provide scholarly outlets for the mounting interest in law and society topics; in addition to the Law & Society Review, these journals include Law & Social Inquiry, Law and Anthropology, Journal of Law and Society, Journal of Empirical Legal Studies, Indiana Journal of Global Legal Studies, and European Law Journal. Moreover, many colleges and universities now offer an undergraduate major and/or minor, graduate program, and/or joint degree programs in law and society. Some law schools emphasize international relations, with pronounced social-science components (Kuhn and Weidemann, 2010).
As well, many scholars in other nations also specialize in law and society theory and research (Johns, 2010). For example, Scandinavian scholars have explored the social meaning ofjustice and the public’s knowledge of the law and attitudes toward it. Italian scholars have examined judges and the process of judging. Russian social scientists have considered the transformation of socialist legal systems into more Western, market-oriented ones. German sociologists have studied the legal aspects of immigration and nationalism. International bodies such as the United Nations are also concerned with the legal issues that increasingly arise in today’s global community.
Most law and society scholars would probably agree with Eugen Ehrlich’s oft-quoted dictum that the “center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself” (Ehrlich, 1975: Foreword). In this regard, sociology has much to offer to the understanding of law and society. As I. D. Willock (1974:7) once commented, “In so far as jurisprudence seeks to give law a location in the whole span of human affairs it is from sociology that it stands to gain most.” Sociological knowledge, perspectives, theories, and methods are not only useful but also axiomatic for the understanding and possible improvement of law and the legal system in society.