SOCIAL SCIENTISTS AND LAWYERS
But the study of law by sociologists and other social scientists is somewhat hampered by difficulties of interaction between these scholars and lawyers. Both nationally and internationally, language-based approaches to issues are different in the two professions (Wagner and Cacciaguidi-Fahy, 2008). Edwin M. Schur (1968:8) correctly noted, “In a sense . . . lawyers and sociologists ‘don’t talk the same language,’ and this lack of communication undoubtedly breeds uncertainty in both professions concerning any involvement in the other’s domain, much less any cooperative interdisciplinary endeavors.” He added, “Sociologists and lawyers are engaged in quite different sorts of enterprises,” and noted that “the lawyer’s characteristic need to make decisions, here and now, may render him impatient with the sociologist’s apparently unlimited willingness to suspend final judgment on the issue” (Schur, 1968:8). The complexity of legal terminology further impedes interaction. There is a special rhetoric of law that has its own vocabulary; terms like subrogation and replivin and respondeat superior and chattel lien abound (Garner, 2001; Sarat and Kearns, 1994). Lawyers use an arcane writing style (not that social scientists always write clearly!), at times replete with multiple redundancies such as made and entered into; cease and desist; null and void; in full force and effect; and give, devise, and bequeath, and they occasionally sue each other over the placement of a comma (Robertson and Grosariol, 2006). Not surprisingly, “between specialized vocabulary and arcane style, the very language of the law defies lay understanding” (Chambliss and Seidman, 1982:119). There is a move under way to combat such legalese, and lawyers and law schools are beginning to learn that good English makes sense (Gest, 1995). The “linguistically challenged profession” (Glaberson, 2001) is further beset by difficulties involving the complexities of legal writing (and the need to translate it into plain English [Garner, 2001]).
Problems of interaction are also brought about and reinforced by the differences in professional cultures (Davis, 1962). 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 a problem with an open mind. Lawyers to a great extent are guided by precedents, and past decisions control current cases. In contrast, sociologists emphasize creativity, theoretical imagination, and research ingenuity.
The pronouncements of law are predominantly prescriptive: They tell people how they should behave and what will happen to them if they do not. In sociology, the emphasis is on description, on understanding the reasons why certain groups of people act in certain ways in specific situations. The law reacts to problems most of the time; the issues and conflicts are brought to its attention by clients outside the legal system. In sociology, issues, concerns, and problems are generated within the discipline on the basis of what is considered intellectually challenging, timely, or of interest to the funding agencies.
These differences in professional cultures are, to a great extent, due to the different methods and concepts lawyers, sociologists, and other social scientists use in searching for “truth.” Legal thinking, as Vilhelm Aubert (1973:50—53) once explained, is different from scientific thinking for the following reasons:
- • Law seems to be more inclined toward the particular than toward the general (for example, what happened in a specific case).
- • Law, unlike the physical and social sciences, does not endeavor to establish dramatic connections between means and ends (for example, the impact the verdict has on the defendant's future conduct).
- • Truth for the law is normative and nonprobabilistic; either something has happened or it has not. A law is either valid or invalid (for example, did a person break a law or not).
- • Law is primarily past and present oriented and is rarely concerned with future events (for example, what happens to the criminal in prison).
- • Legal consequences may be valid even if they do not occur; that is, their formal validity does not inevitably depend on compliance (for example, the duty to fulfill a contract; if it is not fulfilled, it does not falsify the law in question).
- • A legal decision is an either-or, all-or-nothing process with little room for a compromise solution (for example, litigant either wins or loses a case).
These generalizations, of course, have their limitations. They simply highlight the fact that law is an authoritative and reactive problem-solving system that is geared to specific social needs. Because the emphasis in law is on certainty (or predictability or finality), its consideration often requires the adoption of simplified assumptions about the world. The lawyer generally sees the law as an instrument to be wielded, and he or she is more often preoccupied with the practice and pontification of the law than with its consideration as an object of scholarly inquiry.
Sociologists and other social scientists who study law are sometimes asked, “What are you doing studying law?” Unlike the lawyer, the sociologist needs to justify any research in the legal arena and often envies colleagues in law schools who can carry out such work without having to reiterate its relevance or their own competence. Yet, this need for justification is not an unmixed evil because it serves to remind the sociologist that he or she is not a lawyer but a professional with special interests. Like the lawyer, the sociologist may be concerned with the understanding, the prediction, and perhaps even the development of law. Obviously, the sociologist and the lawyer lack a shared experience—a common quest. At the same time, increasingly, sociologists and lawyers work together on problems of mutual interests (such as research on jury selection, capital punishment, conflict resolution, privacy, same-sex marriage, immigration, undocumented workers, crime, demographic concerns, consumer problems, and so on) and are beginning to see the reciprocal benefits of such endeavors. Sociologists also recognize that their research has to be adapted to the practical and pecuniary concerns of lawyers if it is to capture their interest. In view of the vocational and bar examination orientation of law schools and the preoccupation of lawyers with pragmatic legal doctrine (and billable events), it is unlikely that research aimed at theory building will attract or retain the attention of most law students and professors (Posner, 1996).