Learning Objectives 31
Evolution of Legal Systems 32
Traditional Legal Systems 33
Transitional Legal Systems 34
Modern Legal Systems 35
Theories of Law and Society 36
The European Pioneers 36
Classical Sociological Theorists 39
Sociolegal Theorists 43
Contemporary Law and Society Theorists 46
Current Intellectual Movements in Law and Society 48
The Functionalist Approach 49
Conflict and Marxist Approaches 50
The Critical Legal Studies Movement 52
Feminist Legal Theory 53
Critical Race Theory 55
Key Terms 57
Suggested Readings 58
- • Explain the nature of law in traditional societies
- • Identify the features of law in modern legal systems
- • Describe the major assumptions of Emile Durkheim and Max Weber
- • List the criticisms of the functionalist approach
- • Summarize the beliefs of critical legal studies, feminist legal theory, and critical race theory
This chapter examines the evolution of legal systems and reviews the major classical and contemporary theories of law and society. At the outset, it should be recognized that there is no single, widely and commonly accepted, comprehensive theory of law and society (or, as a matter of fact, of anything else in the social sciences). The field is enormously complex and polemical, and individual explanations have thus far failed to capture fully this complexity and diversity. For this reason, it is important to appreciate the major theories because, taken together, they offer a fuller understanding of law and society than any one theory can offer by itself.
Our examination of these theories will provide readers with some conception of the development and content of the theories and how they relate to one another. Although the discussion will show the complex and multifaceted nature of the relationship between law and society, it will also serve as a means of differentiating, organizing, and understanding a great mass of material. Thus, although the concern is to suggest the magnitude and diversity of the field, an attempt is also made to lend order to that magnitude and diversity.
A cautionary note is in order with regard to the procedures followed in this chapter for grouping various theories. It will become clear that many theories of law and society tend to overlap. For example, a theory placed under the heading of “The European Pioneers” may contain similar elements to those embodied in “Classical Sociological Theorists.” This overlap illustrates the difficulty in coming up with a “perfect” classification of theories, but the classification we present should still point to similarities among theories presented under a particular heading.
As with general sociological theories, there are many ways of categorizing the more specific law and society theories. They may be considered from the disciplinary perspectives ofjurisprudence, philosophy of law, sociology of law, and anthropology of law. They can also be listed under the headings of sociology of civil law, sociology of criminal law, sociological jurisprudence, and anthropology of law; grouped by various theoretical trends, such as natural law, historical and analytical jurisprudence, utilitarianism, positivism, and legal realism; listed under emerging trends such as global law; or classified under various perspectives such as Marxian, Weberian, and Durkheimian (Trevino, 2007, 2008). Any attempt to categorize theories under particular labels is certainly open to question. The present effort should not be an exception. The categories used here simply provide some semblance of order for the principal theoretical approaches to law and society. Finally, space considerations prevent a discussion of every theorist and theory. Readers who wish to gain further knowledge about classical or modern theoretical concerns may consult the suggested readings section listed at the end of this chapter. Because many law and society theories try to explain how contemporary law differs from traditional law, we begin our discussion with the evolution of legal systems before turning to the theories themselves.