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Sociology of Law

The beginnings of sociology of law can be traced to Montesquieu's De l'espirit des

lois (1748). Montesquieu still discussed law partly in terms of natural law but he also
described and compared the laws of different societies and related the differences to
the diversity of conditions both geographical and social of these societies.

From the middle of the 19th century with the emergence of sociology as a distinct
discipline the sociological study of law progressed rapidly although it assumed
diverse forms. Marx and later Marxists undertook their critique of law as an ideology
that conceals class divisions at the same time as it promotes the interests of the
dominant class. A major work of Marxist scholar Karl Renner, 'The institutions of
Private law and their social functions,' examines how the functions of legal norms
which regulate property, contract, succession and inheritance change with changes in
the economic structure of capitalist society, yet without necessarily altering the
formulation of the legal norms themselves which thus come to obscure the significant
social relationships of developed capitalism. Many other sociologists like Comte,
Spencer and Maine were influenced by the German historical school of jurisprudence
founded by Savigny.

H.S Maine in his Ancient Law made a distinction between static and progressive
societies and argued that the movement of progressive societies has hitherto been a
movement from status to contract. He meant that the individual is steadily substituted
for the family as the unit of which civil laws take account. Maine considered that
these changes were brought about by non-legal factors since social necessities and
social opinion are always more or less in advance of law and he examined under three
headings legal fictions, equity and legislation the agencies by which in progressive
societies law is brought into harmony with society.

Emile Durkheim's conception of the development of law is similar in important

respects to that of Maine for his distinction between repressive and restitutive law
resembles that between status and contract. Repressive law is characteristic of
societies in which the individual is scarcely distinguished from the group to which the
individual belongs while restitutive law is typical of modern societies in which the
individual has become a distinct legal person able to enter freely into contractual
relationships with other individuals.

L.T Hobhouse in conformity with his general evolutionist approach dealt with the
development of law and justice from private redress and the blood feud, through the
stage of composition for offences to the stages of civilized justice. Hobhouse records
not only the establishment of the notion of individual responsibility but also the
influence of increasing class differentiation until recent times. He also discusses
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changes in the character of punishment and examines the relations between law,
religion and morals.

Max Weber's studies of law showed a much clearer understanding of the nature of law
than those of earlier sociologists and they have had greater influence in the growth of
a sociological jurisprudence since Weber's conception of law as being concerned with
the adjustment of conflicting interests. Weber was also interested in the classification
of types of law and in the development of law in western societies. He conceived this
development as an increasing rationalization of law, accompanying the general
rationalization of life in industrial societies as a result of the growth of capitalist
economic enterprise and of bureaucracy. According to Max Weber law is an order the
validity of which is guaranteed by the probability that deviation will be met by
physical or psychic sanction by a staff specially empowered to carry out this sanction.

In modern civilized societies laws are enacted by the state to control the individual.
The transition from custom to law is just a part of the general rationalization in
modern society. Sumner has defined the term law as codified mores. Kant defined law
as a formula that expresses the necessity of an action. According to Green law is a
more or less systematic body of generalized rules balanced between the fiction of
performance and the fact of change governing specifically defined relationship and
situations and employing force or the threat of force in defined and limited ways.
According to Maclver and Page law is the body of rules that are recognized,
interpreted and applied to particular situations by the courts of state.

There is a marked disagreement among the scholars as to what the law is. There is no
single definition of law that will encompass preliterate legal arrangements like the
Code of Hammurabi and law in modern civilization. As Maclver puts it the law of the
savage is not our law. Those who take juristic view of law define it as the command
of the sovereign or the dictates of the state. Those taking the sociological view define
law as the rules of right conduct. The problem here is shall we keep the word law for
the specialized system with their codes; their apparatus for setting disputes and the
penalties for those who have broken the rules or shall we regard these as mere
specializations of a similar kind of control which may be found in unorganized forms
or in organized forms but without what we ordinarily think of as legal sanctions.

Those who hold the former view argue that jurisprudence makes it convenient to use
the word law in a specialized sense while the advocates of the latter view hold that
primitive people had something which may be called law and that the rules of
voluntary associations like trade union, club, university, family as much regulate the
behavior of man as the law of the land. Enactment or enforcement by the state should
not be considered essential elements of law. Pollock writes if we look away from such
elaborate systems as those of a late Roman Empire and of modern western
governments, we see that not only law with a great deal of formality has existed
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before the state had any adequate means of compelling its observance and indeed
before there was any regular process of enforcement at all. This means that two views
may be taken of law. In a wider sense it included all the rules of conduct observed by
men as a matter of habit. It may mean the body of rules that are recognized or made
by the state and interpreted by the courts of the land. Custom becomes law when the
state is prepared to enforce it as a rule binding on citizens. The term law can be
interpreted as rules enacted or at least interpreted and enforced by special agencies of
the state. Main characteristics of law are

 Laws are the general conditions of human activity prescribed by the state for
its members.
 Law is law only if enacted by a proper law making authority. It is a product of
conscious thought: planning and deliberate formulation.
 Law is definite, clear and precise.
 Law applies equally to all without exception in identical circumstances
 The violation of law is followed by penalties determined by the authority of
the state.

Intellectual Origin
The roots of the sociology of law can be traced back to the works of sociologists and
jurists of the turn of the previous century. The relationship between law and society
was sociologically explored in the seminal works of both Max Weber and Émile
Durkheim. The writings on law by these classical sociologists are foundational to the
entire sociology of law today. A number of other scholars, mainly jurists, also
employed social scientific theories and methods in an attempt to develop sociological
theories of law. Notably among these were Leon Petrazycki, Eugen
Ehrlich and Georges Gurvitch.

For Max Weber, a so-called "legal rational form" as a type of domination within

society, is not attributable to people but to abstract norms.
He understood the body of coherent and calculable law in terms of a rational-legal
authority. Such coherent and calculable law formed a precondition for modern
political developments and the modern bureaucratic state and developed in parallel
with the growth of capitalism.
Central to the development of modern law is the formal rationalisation of law on the
basis of general procedures that are applied equally and fairly to all.
Modern rationalized law is also codified and impersonal in its application to specific
cases. In general, Weber's standpoint can be described as an external approach to law
that studies the empirical characteristics of law, as opposed to the internal perspective
of the legal sciences and the moral approach of the philosophy of law.

Émile Durkheim
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Émile Durkheim wrote in The Division of Labour in Society that as society becomes

more complex, the body of civil law concerned primarily
with restitution and compensation grows at the expense of criminal laws and penal
sanctions. Over time, law has undergone a transformation from repressive law to
restitutive law. Restitutive law operates in societies in which there is a high degree of
individual variation and emphasis on personal rights and responsibilities.
For Durkheim, law is an indicator of the mode of integration of a society, which can
be mechanical, among identical parts, or organic, among differentiated parts such as
in industrialized societies. Durkheim also argued that a sociology of law should be
developed alongside, and in close connection with, a sociology of morals, studying
the development of value systems reflected in law.
In Fundamental Principles of the Sociology of Law, Eugen Ehrlich developed a
sociological approach to the study of law by focusing on how social networks and
groups organized social life.
 He explored the relationship between law and general social norms and distinguished
between "positive law," consisting of the compulsive norms of state requiring official
enforcement, and "living law," consisting of the rules of conduct that people in fact
obeyed and which dominated social life. The latter emerged spontaneously as people
interacted with each other to form social associations.
The centre of gravity of legal development therefore from time immemorial has not
lain in the activity of the state, but in society itself, and must be sought there at the
present time".
This was subjected to criticism by the advocates of legal positivism such as the
jurist Hans Kelsen for its distinction between "law created by the state and law
produced by the organisational imperatives of non-state social associations".
 According to Kelsen, Ehrlich had confused Sein ("is") and Sollen ("ought").
 However, some argued that Ehrlich was distinguishing between positive (or state)
law, which lawyers learn and apply, and other forms of 'law', what Ehrlich called
"living law", that regulate everyday life, generally preventing conflicts from reaching
lawyers and courts.

Leon Petrazycki
Leon Petrazycki distinguished between forms of "official law," supported by the state,
and "intuitive law," consisting of legal experiences that, in turn, consist of a complex
of psychic processes in the mind of the individual with no reference to outside
authorities.
 Petrazycki's work addressed sociological problems and his method was empirical,
since he maintained that one could gain knowledge of objects or relationships only by
observation. However, he couched his theory in the language of cognitive psychology
and moral philosophy rather than sociology. Consequently, his contribution to the
development of sociology of law remains largely unrecognized.
 For example, Petrazycki's "intuitive law" influenced not only the development of
Georges Gurvitch's concept of "social law" which in turn has left its mark on socio-
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legal theorising, but also the work of later socio-legal scholars. Among those who
were directly inspired by Petrazycki's work is the Polish legal sociologist Adam
Podgórecki.

Theodor Geiger developed a close-knit analysis of the Marxist theory of law. He

highlighted how law becomes a "factor in social transformation in democratic
societies of the kind that are governed by the consent expressed by universal suffrage
of the population practised at regular intervals".
Geiger went on to develop the salient characteristics of his anti-metaphysical thinking,
until he exceeded it with practical nihilism. Geiger's nihilism of values paved the way
for a form of legal nihilism, which encourages the construction of a sober democracy
"that is capable of raising conflict to the intellectual level and of anaesthetic feelings,
as it is aware of its own inability to make any proclamation of value, ethics or policy
about the nature of truth".
Georges Gurvitch was interested in the fusion of simultaneous manifestation of law in
various forms and at various levels of social interaction. His aim was to devise the
concept of "social law" as a law of integration and cooperation.
Gurvitch's social law was an integral part of his general sociology. "It is also one of
the early sociological contributions to the theory of legal pluralism, since it
challenged all conceptions of law based on a single source of legal, political, or moral
authority".
As a discipline, the sociology of law had an early reception in Argentina. As a local
movement of legal scholars steaming from the work of Carlos Cossio, South
American researchers have focused on comparative law and sociological insights,
constitutional law and society, human rights, and psycho-social approaches to the
legal practices.
Modern sociology of law
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 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. Critical sociologists, developed a
perspective of law as an instrument of power. 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.
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.
Equally broad in orientation, but again different, is the autopoietic systems theory of
the German sociologist Niklas Luhmann, who presents law or "the legal system" as
one of the ten function systems (see functional differentiation) of society.
All collective human life is directly or indirectly shaped by law. Law is like
knowledge, an essential and all-pervasive fact of the social condition.
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— Niklas Luhmann, A Sociological Theory of Law

Social philosopher Jürgen Habermas disagrees with Luhmann and argues that the law
can do a better job as a 'system' institution' by representing more faithfully the
interests of everyday people in the 'lifeworld'. Yet another sociological theory of law
and lawyers is that of Pierre Bourdieu and his followers, who see law as a social field
in which actors struggle for cultural, symbolic and economic capital and in so doing
develop the reproductive professional habitus of the lawyer.
 In several continental European countries empirical research in sociology of law
developed strongly from the 1960s and 1970s. In Poland the work of Adam
Podgórecki and his associates (often influenced by Petrazycki's ideas) was especially
notable; in Sweden empirical research in sociology of law in this period was
pioneered especially by Per Stjernquist, and in Norway by Vilhelm Aubert.
In more recent years, a very wide range of theories has emerged in the sociology of
law as a result of the proliferation of theories in sociology at large. Among the recent
influences can be mentioned the work of the French philosopher Michel Foucault, the
German social theorist Jürgen
Habermas, feminism, postmodernism and deconstruction, neo-Marxism,
and behaviorism. The variety of theoretical influences in the sociology of law has also
marked the broader law and society field. The multi-disciplinary law and society field
remains very popular, while the disciplinary speciality field of the sociology of law is
also "better organized than ever in institutional and professional respects".

The difference of approach b/w legal dogmatist and Sociology of law

Legal dogmatics Sociology of law

Target Rules Factual behaviour,

practices and
institutions
Perspective The participant’s The observer’s
Method/ Text hermeneutics Social sciences’ methods
generally
Typical method Interpretation Analysis of empirical
and material
systematisatio
n
Approach Law as an autonomous Law in its social context
system
Perception of Formal law Formal and informal law
law
Goal To create coherence To explain and
within the legal system examine critically
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SOCIOLOGY OF LAW: Few Deliberations

In 1963, the U.S. Supreme Court ruled that in all felony trials the accused must be
provided with legal counsel. The case of Gideon v. Wainwright (372 U.S. 355, 1963) was
widely celebrated as a David and Goliath story of the triumph of the rule of law: An
indigent defendant's handwritten petition had persuaded all nine justices of the Supreme
Court to provide a nationwide right to counsel (Lewis 1964). Shortly after Gideon's
victory, Blumberg (1967) published an empirical case study describing the actual work of
criminal defense attorneys. That study suggested that Gideon's case had little relevance to
the 90 percent of felony convictions that the prosecution wins not in a courtroom trial but
through informal plea bargaining. Moreover, the attorneys to whom the poor were now
constitutionally entitled, Blumberg contended, had over the years mutated from trial
advocates into bureaucratic cogs whose primary function was to assist the state in
processing legal files efficiently.

Blumberg's deconstruction of the legal myth of the centrality of criminal trials and
adversarial counsel exemplifies two central features of the sociology of law. First, that
field challenges legal formalism, the philosophy that the law stands above social life,
develops according to its own internal logic, and autonomously constrains or
facilitates social interaction. A sociology of law becomes essential once the law's
dependence on its social organizational context is recognized (for a defense of legal
formalism as a research agenda, see Watson 1985). Blumberg tried to show that the right
to legal representation is contingent on the economics of legal services and the networks of
dependency that link judges, prosecutors, and defense attorneys in ways that undermine
the abstract legal model of the adversarial contest. Second, Blumberg's case rests on
observations of legal practice rather than interpretation of the texts of cases and legislation,
the stock-in-trade of conventional legal scholarship. As empirical evidence continued to
accumulate, Blumberg's (1967) conclusions about the origins, causes, and consequences
of plea bargaining were qualified or supplanted; later research suggests that plea bargains
may be even more adversarial than trials ever were (Feeley 1997), that the relationship
between caseload pressure and plea bargaining is complex (Holmes et al. 1992), and that
the real role of the courtroom trial may be independent of its frequency of occurrence
because out-of-court negotiations are conducted "in the shadow of the law" (Mnookin and
Kornhauser 1979). Blumberg's study and the later work it inspired illustrate how the
sociology of law examines empirical evidence to understand how law is created, enforced,
and manipulated in the context of social organization.

SOCIOLOGICAL VERSUS JURISPRUDENTIAL PERSPECTIVES ON LAW

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The discipline of sociology does not hold a monopoly on efforts to unveil the connections
between law and society. In the twentieth century, Roscoe Pound, Jerome Frank, and other
legal scholars abandoned legal formalism and created new ways to understand the
differences between the "law in the books" and the "law in practice" (for a concise
overview of both developments, see Hunt 1978). Since the late 1970s, the critical legal
studies movement and its variants have emerged as a major competitor to legal formalism
in legal research and education (Kelman 1987). For example, Freeman (1978) examines
how major Supreme Court decisions on civil rights have shifted the bases for legally
defining discrimination from the consequences for the victims to the intentions of the
perpetrators. Freeman shows how the law's emphasis on the actor's intention constrains the
principle of equal protection and perpetuates inequality. While his conclusions are radical,
his method is identical to the legal formalists' practice of textual interpretation (Trubek
1984). Critical legal studies' doctrinal analysis—its reliance on interpretation of
constitutions, statutes, and judgments—has more affinity with literary criticism than with
sociological methodologies based on the observation of events. For an example of this
distinction, compare Klare (1978) with Wallace et al. (1988). Sociology of law is
distinguished more by its methods than by its theories or subject matter.

SOCIAL ORIGINS OF LAWS

A substantial number of historical case studies (e.g., Hall 1952) have traced the social
origins of substantive and procedural law. Sociology enters these investigations with a
broader comparative agenda, formulating and assessing general theories of the origin of
law. Chambliss's (1964) analysis of six centuries of vagrancy laws as a ruling-class
manipulation of  criminal o control labor was a pioneer of contemporary efforts to pursue
this line of investigation. Hagan (1980) provides a representative overview of the
subsequent sociological analyses of the origins of alcohol and drug prohibition, sexual
psychopathology and prostitution laws, and probation. Humphries and Greenberg (1981)
produced one of the few sociological efforts showing the relationships among disparate
legal changes and linking those changes to their social bases. They explain the diffusion of
juvenile courts, probation, parole, and indeterminate sentences in terms of the shift in the
political domination of corporate versus competitive capital during the Progressive era. An
alternative approach to the study of the creation and diffusion of legal innovation looks to
cultural transmission and organizational linkages rather than to underlying economic or
social transformations. Grattet et al. (1998) show, for example, how the diffusion of hate
crime legislation appears to be influenced by interstate processes of diffusion rather than
by local conditions of the economy and society. Soule and Zylan (1997) similarly explore
structural and diffusion factors in the reform of Aid to Families with Dependent Children
(AFDC) eligibility rules. In terms of both theory and method, the sociology of law offers a
rich body of work that reveals the social foundations of change in the law.
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SOCIAL STRATIFICATION OF LAW

The most prominent aspect of social structure in sociological investigations of law is

stratification. In his early essay On the Jewish Question, Marx examined how a legal
system that made all litigants equal before the law left them unequal in economic resources
and social relationships. Much current research has been devoted to finding new evidence
showing how formal legal equality reproduces social hierarchies. Galanter (1974) points
out how the organizational properties of the legal system reinforce and in some instances
generate inequality. Apart from the extralegal resources they bring to the dispute, repeat
players (corporations and career criminals), for example, gain knowledge, skills that are
not available, and networks denied to one-shot players. Feeley (1979) found that in a
misdemeanor court "the process is the punishment": For the poor, the costs of conviction
were minor compared to the costs imposed by the pretrial stages of the process. Shapiro
(1990) developed similar insights into the way in which the rules of evidence and
organizational priorities of law enforcement bureaucracies create class differences in the
punishment of white-collar crime. These studies go beyond the populist notion that the law
is like a cobweb that catches the small flies but lets the large bugs go free. Individual
resources matter, but sociological research shown how organizational and institutional
contexts shape the manner in which equality before the law results in inequality after the
law.

The largest body of research in the field has been devoted to the examination of
discriminination in sentencing in criminal courts. Disparities in the type and duration of
sanctions vary markedly by class, race, and/or ethnicity, and gender. For example, with 5
percent of the general population, young African-American males account for nearly half
the admissions to state prisons. The initial research problem was to determine the extent to
which such disparities represent differential involvement in the kinds of crime that lead to
more severe sentences or reflect biases in discretionary decision making in the legal
system (for a succinct overview of this research, see Walker et al. 1996). The
sociologically relevant discoveries of this research include covariation in the extent of
discriminatory decision making with social location (see Myers and Talarico 1987).

SOCIAL IMPACT OF LEGAL CHANGE

Brown v. Board of Education (1954) is perhaps the most celebrated Supreme Court

decision of the century. It marked the end of over half a century of the Court's acceptance
of legalized racial segregation as being consistent with the constitutional requirement for
equal protection under the law. It is usually the case one associates with the conviction that
law—Supreme Court decisions, in particular—powerfully shapes social change. Less
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widely recognized is the fact that in the decade after Brown, racial segregation in public
schools remained virtually unchanged. The sharpest challenge to conventional conceptions
of the social impact of law is Rosenberg's (1991) study of the effect of Supreme Court
decisions on school desegregation, abortion, reapportionment, and criminal procedure.

While current controversy centers on Rosenberg's thesis, several other research programs
address the conditions under which legal reforms engineer social change. Burstein (1985),
for example, specifies the contingencies that influenced the impact of civil
rights legislation on the economic position of minorities. Horney and Spohn (1991)
examine the impact of rape reform laws in six jurisdictions on several indicators of
prosecution. The measurable impact of legal reform proved to be limited, because of the
response of local court organizations to externally imposed change. Heimer (1995)
illustrates that similar complications appear when legal changes are imposed on hospital
work groups. Organizational responses occasionally facilitate rather than inhibit change.
Edelman et al. (1992), for example, found that personnel departments tend to exaggerate
the legal risks of noncompliance in equal-opportunity cases as a way to enhance their
power within the corporation.

ORGANIZATIONAL CONTEXTS OF LEGAL PROCEDURES

A public defender explained to Sudnow (1965) that to work in such an office, one has to
know the law—and the ropes. Learning about the organizational ropes of courts, police
departments, and law offices has been the objective of a large body of contemporary
research in the sociology of law.

Albonetti (1987) utilizes organizational theories to explain variation in the decisions of

prosecutors to drop cases or reduce charges; apart from the legal evidence, prosecutors'
decisions are shaped by extralegal factors that govern their uncertainty about winning a
case at trial. Ofshe and Leo (1997) investigate the coercive persuasion that continues to
occur in post-Miranda police interrogations. Police investigators generally follow the letter
of the Miranda rules while continuing to practice forms of coercive persuasion that induce
most suspects to waive their rights and confess.

Many discoveries about procedure turn on the emergence of informal organizational rules
and relationships. Sudnow (1965) found that plea bargains were forged in a common
currency of offense seriousness that existed apart from the penal code's definitions of
crimes and punishments. Emerson (1969) showed how the legally relevant aspects of a
juvenile's offense and career are organizationally transformed into judgments of character,
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which then become the real bases for determining verdicts and imposing sentences. This
work suggests that due process is a variable whose appearance and effects are shaped by
organizational contexts (see Dobbin et al. 1988).

THE ROLE OF GENERAL THEORY IN THE SOCIOLOGY OF LAW

The sociology of law can be distinguished from economics, psychology, and other social
science enterprises that have law as their subject matter principally in terms of its
integration of its investigations with general theories of social structure. The role of
general theory becomes apparent, for example, in comparisons of Japanese and U.S. legal
systems that "explain away Japan by attributing every finding to 'Japanese uniqueness'
[rather than] treat Japan as a point on a universal continuum" (Miyazawa 1987, p. 239).
The case for engaging in the search for such universal continua is made by Black (1976,
1997).

Much current research, however, continues to be guided by one or a combination of the

four general theories that initially defined the field. Bentham's utilitarian philosophy
underlies rational choice theories of the behavior of law. Studies of deterrence at both
individual and organizational levels of analysis continue to pursue this line of theorizing
(see Vaughn 1998 for a summary and critique of organizational analysis). Alternatively,
the sociological theories of Marx, Durkheim, and Weber articulate properties of social
organization that shape and constrain the choices of persons and firms (for an overview,
see Garland 1990). Work in the sociology of law thus not only illuminates the institution
of law in unique ways but contributes more fundamentally to basic knowledge about
human social organization.