Hostname: page-component-cd9895bd7-p9bg8 Total loading time: 0 Render date: 2024-12-28T04:05:04.859Z Has data issue: false hasContentIssue false
  • English
  • Français

Three Voices of Socio-Legal Studies

Published online by Cambridge University Press:  04 July 2014

Malcolm M. Feeley
Get access

Extract

The connection between law and contemporary social science emerged as a consequence of the quest for social reform. As law became more instrumental, it also became more empirical, more concerned with policy. For this process, it turned to social science. Social science complied and has become an adjunct to law in the quest for solving social problems. As this partnership has developed, the relationship between law and social science has matured. Not only has social science sought to educate and influence law, it has also incorporated law into its own disciplinary concerns. Furthermore, the field of socio-legal studies may be on the verge of establishing itself as a separate and distinct discipline, independent of the practical concerns of law.

The scholarly intersection of law and social science — or socio-legal studies, as I shall call it — now speaks with at least three voices addressed to at least three audiences. It speaks as policy analysis, a handmaiden to law. It also speaks in the traditional language of the social sciences. Thirdly, it may be gaining a voice of its own, reflecting a belief that law is a distinct form of ordering that merits its own position among the scholarly disciplines, separate from both scholarly fields and the professional concerns of law. At their core, each of these enterprises entails a distinct voice, a distinct audience, and a distinct agenda.

Type
Theoretical Issues and Methodological Problems
Information
Israel Law Review , Volume 35 , Issue 2-3 , Summer-Autumn 2001 , pp. 175 - 204
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 For a sustained analysis of Durkheim's work, see Cotterrell, Roger, Emile Durkheim: Law in a Moral Domain (Edinburgh, Edinburgh Univ. Press, 1999)Google Scholar.

2 SirMaine, Henry, Ancient Law: Its Connection With the Early History of Society and its Relation to Modern Ideas (London, Dent Reprint [1861], 1977)Google Scholar may be the most conspicuous such study. Written after a career of judicial service in India, it employed an evolutionary scheme to compare then contemporary Hindu law in India with feudal and modern law in England. 25 years later Holmes, Oliver Wendell published The Path of the Law (New York, Dover Reprint [1881], 1991)Google Scholar which distinguished itself from much legal scholarship with its claim that “the life of the law is experience and not logic.” He sought to anchor developments in common law principles to changes in social thought and practice. At about this same time Fredrick Pollock and F.W. Maitland were in the midst of their path-breaking studies of English law that located their work in a branch of social history rather than the more traditional legal history. See, e.g., Pollock, Fredrick and Maitland, F.W., History of English Law before the Time of Edward I (1895, 1968 ed.), 2 volsGoogle Scholar.

3 This is most clearly seen in law and economics. Although I include this rapidly growing field in Socio-legal studies, many others would not. See, e.g., Posner, Richard, “The Sociology of the Sociology of Law: A View from Economics” (1995) 2 European J. Law & Econ. 265–284CrossRefGoogle Scholar; and Garth, Bryant and Sterling, Joyce, “From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State” (1998) 32 Law & Society Rev. 409–472.CrossRefGoogle Scholar I will return to this issue in the text below.

4 von Jhering, Rudolph, The Struggle for Law, 2nd ed. (Chicago, Calaghan, [1872], 1915) 1Google Scholar.

5 Pound, Roscoe, “The Need for a Sociological Jurisprudence” (1907) 19 The Green Bag 607–615Google Scholar; “Law in Books and Law in Action” (1910) 44 American L. Rev. 12–36Google Scholar; and Social Control through Law (New Haven, Yale Univ. Press, 1942)Google Scholar.

6 For one account of some of the developments in legal realism, see Kalman, Laura, Legal Realism at Yale: 1927-1960 (Chapel Hill, Univ. of North Carolina Press, 1986)Google Scholar.

7 The phrase was coined earlier. See, e.g., Pound, Roscoe, “Mechanical Jurisprudence” (1908) 8 Columbia L. Rev. 605–623CrossRefGoogle Scholar.

8 The most famous “fact skeptic” is Frank, Jerome, Courts on Trial (Princeton, Princeton Univ. Press, 1949)Google Scholar.

9 Several well-known anthologies on law and social science tend to focus, though not exclusively, on legal effectiveness studies. See Friedman, Lawrence and Macaulay, Stewart, Law and the Behavioral Sciences (Indianapolis, Bobbs-Merrill, 1969)Google Scholar; Loh, Wallace, Law and Social Science (New York, Russell Sage Foundation, 1983)Google Scholar; Grossman, Joel and Grossman, Mary, Law and Change in Modern America (Pacific Palisades, CA, Goodyear Publishing, 1971)Google Scholar; Monahan, John and Walker, Laurens, Social Science in Law (New York, Foundation Press, 1989)Google Scholar.

10 For a self-reflective retrospective on the law and development movement by two participants, see Trubek, David, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the Unites States” (1974) Wisconsin L. Rev. 1062–1102Google Scholar.

11 For a brief history of the law and society movement, see Garth and Sterling, supra n. 3.

12 Even this claim was initially contentious. The questions, “Who is the audience?” and “What is the purpose?” of the new enterprise were present and debated at the outset. Volume one, number one of the Law and Society Review featured a vigorous exchange between law professor Karl Auerbach and sociologist Jerome Skolnick, who staked out quite different positions. Skolnick argued for a distinct social science of “legality,” while Auerbach held forth for what I have termed the “handmaiden” approach. The agenda is to be set by law, social science is to gather and assess the facts. See Auerbach, Karl, “Legal Tasks for the Sociologist” (1966) 1 Law & Society Rev. 91–104CrossRefGoogle Scholar; Skolnick, Jerome, “Social Research on Legality: A Reply to Auerbach” (1966) 1 Law & Society Rev. 105–110CrossRefGoogle Scholar. A manifesto a few years later that rejected all policy and normative concerns was expanded upon in Black, Donald, “The Epistemology of Pure Sociology” (1995) 20 Law & Social Inquiry 829–870CrossRefGoogle Scholar.

13 There is, of course, an “as if” quality to this enterprise. I do not mean literally that legal scholars write only for judges and lawyers, or that only judges and lawyers read the work of the legal scholars. Indeed, if truth be told, virtually no one reads their work. My point here is that they write as if they were addressing an audience of judges or lawyers, i.e., those who have it in their power to effect the sorts of changes advocated by the authors. This form is itself quite traditional, but it is also anachronistic since the style is more appropriate to the nineteenth century Anglo-American legal system than modern law, which is developed not by judges but by legislatures and administrative agencies. Despite their zeal for reform, Anglo-American law professors have not yet located the primary sources of modern law. Needless to say, there are obvious and important exceptions to this. Nevertheless, I stand by my generalization; I invite skeptical readers to pick up a volume of a recent English or Australian or American law review at random and page through it. I wager that somewhere between 65 and 90% of the articles fit the form I have described above.

14 Many have noted the even closer affinity between traditional doctrinal legal scholarship and economics. In contrast to the inductive approach of most social sciences, both legal scholars and economists are deductive. Both begin with a few basic principles, use them to construct a model, and from there deduce expected consequences. Furthermore, neither field is especially empirical.

15 See, e.g., Friedman and Macaulay, supra n. 9; Grossman and Grossman, supra n. 9; Loh, supra n. 9; Monahan and Walker, supra n. 9.

16 For an extended discussion of the problems with “gap studies,” see Feeley, Malcolm M., “Law and Social Science: A Critique and Notes on an Expanded View” (1976) 10 Law & Society Rev. 497–525CrossRefGoogle Scholar. See also Nelken, David, “The ‘Gap Problem’ in the Sociology of Law: A Theoretical Review” (1981) 1 Windsor Yrbk. of Access to Justice 35–61Google Scholar.

17 This is certainly the case with the most theoretically rigorous area of socio-legal studies, the field of law and economics. Much of the more theoretically rich work in law and economics is also quite applied, and quite normative as well.

18 The model for this in organizational analysis was established by Selznick, Philip in The TVA and the Grassroots (Berkeley, Univ. of California Press, 1949)Google Scholar. In the law and society field, perhaps the most well-known such study is Blumberg, Abraham “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession” (1967) 1 Law & Society Rev., 15–40CrossRefGoogle Scholar.

19 347 U.S. 483 (1953).

20 For an example of “gap research,” see Rosenberg, Gerald, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, Univ. of Chicago Press, 1991)Google Scholar; and for an extended discussion and exchange regarding this matter, see Feeley, Malcolm M., “Fly Paper and Metaphors” (1992) 17 Law & Social Inquiry 745CrossRefGoogle Scholar and Gerald Rosenberg, “Hollow Hopes and Other Aspirations: A Reply to Feeley and McConn,” ibid., at 761-778.

21 See, e.g., Freeman, Alan, “Legitimating Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine” (1978) 62 Minn. L. Rev. 1049–1119Google Scholar; Bumiller, Kristin, The Civil Rights Society: The Social Construction of Victims (Baltimore, Johns Hopkins Univ. Press, 1988)Google Scholar.

22 Ewick, Patricia and Silbey, Susan, The Common Place of Law: Stories from Everyday Life (Chicago, Univ. of Chicago Press, 1999)Google Scholar.

23 See Sarat, Austin and Silbey, Susan, “The Pull of the Policy Audience” (1988) 10 Law & Policy 97–166, at 97CrossRefGoogle Scholar.

24 See, e.g., the articles collected in Sarat, Austin and Thomas, , eds., Law in Every Day Life (Ann Arbor, Univ. of Michigan Press 1995)Google Scholar; and Ewick and Silbey, supra n. 22.

25 See, e.g., Bumiller, supra n. 21.

26 See Handler, Joel, “Postmodernism, Protest and the New Social Movements” (1992) 26 Law & Society Rev. 697–732CrossRefGoogle Scholar.

27 See Fiss, Owen, “Against Settlement” (1984) 93 Yale Law Journal 1073–1090CrossRefGoogle Scholar. See also Resnik, Judith, “Managerial Judges” (1982) 96 Harv. L. Rev. 376–448CrossRefGoogle Scholar.

28 Gilmore, Grant, The Death of Contract (New Haven, Yale Univ. Press, 1982)Google Scholar.

29 Steiner, Henry, Moral Argument and Social Vision in the Court: A Study of Tort Accident Law (Madison, Univ. of Wisconsin Press, 1987) 8Google Scholar.

30 Feeley, Malcolm M. and Simon, Jonathan, “Actuarial Justice: The Emerging New Criminal Law” in Nelken, David, ed., The Futures of Criminology (London, Sage, 1994) 173Google Scholar.

31 Moore, Michael, Placing Blame: A General Theory of the Criminal Law (Oxford, Clarendon Press, 1997)Google Scholar.

32 Foucault, Michel, Discipline and Punish: The Birth of Prison (New York, Vintage Books, 1979)Google Scholar.

33 Murphy, W.T., The Oldest Social Science? Configurations of Law and Modernity (New York, Oxford Univ. Press, 1997)Google Scholar.

34 Presentation by David Driesen, Syracuse University Faculty of Law, at a Roundtable “Toward a World Rule of Law — Contributions from Natural Law Thinking” Annual Meeting of the Law and Society Association, Vancouver, British Columbia, 30 May 2002.

35 Coase, Ronald, “The Problem of Social Cost” (1960) 3 J. Law & Econ. 1–44CrossRefGoogle Scholar.

36 Weber did not use causal language in his works, but it is clear that changes in the law were not his primary concerns and that when he identified changes in legal form, he usually did so in order to illuminate a broader and, in his view, more fundamental change in the structure or organization in society. In this sense, law for him was more a “dependent” than “independent” variable.

37 Pashukanis, E.B., Law and Marxism: A General Theory, Einhord, B., trans- what is the correct citation for translation?. (London, Ink Links, 1978)Google Scholar.

38 Gramsci, Antonio, Selections from the Prison Notebooks. Hare, Q. and Nowell-Smith, G., eds. and trans., (New York, International Publishers, 1971.)Google Scholar

39 Scheingold, Stuart, The Politics of Rights: Lawyers, Public Policy and Political Change (New Haven, Yale Univ. Press, 1974)Google Scholar.

40 Rosenberg, supra n. 20, at 107-156.

41 McCann, Michael, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago, Univ. of Chicago Press, 1994) 48–91Google Scholar.

42 Edelman, Lauren, “Legal Environments and Organizational Governance: The Expansion of Due Process in the workplace” (1990) 95 American J. of Sociology, 1401–1440CrossRefGoogle Scholar. See also Bumiller, supra n. 21.

43 His classical statement is in Fuller, Lon, “The Forms and Limits of Adjudication” (1978) 92 Harvard L. Rev. 353–409CrossRefGoogle Scholar. Mimeographed versions of this manuscript were widely circulated from the mid-1950s, and it was only published posthumously. See also his The Morality of Law (New Haven, Yale Univ. Press, 1969)Google Scholar.

44 Black, Donald, “Review of Law, Society and Industrial Justice” (1974) 78 American J. of Sociology, 709–714CrossRefGoogle Scholar.

45 Selznick, Philip, Law, Society and Industrial Justice (New York, Russell Sage Foundation, 1969)Google Scholar; Nonet, Philippe and Selznick, Philip, Law and Society in Transition (New York, Harper Row, 1977)Google Scholar. For an assessment of Selznick's work on legal ordering, see Kagan, Robert A., Krygier, Martin, and Winston, Kenneth, eds., Legality and Community: On the Intellectual Legacy of Philip Selznick (Lanham, MD, Rowman & Littlefield, 2001)Google Scholar.

46 Habermas, Jurgens, Legitimation Crisis (Boston, Beacon Press, 1970)Google Scholar; and Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought) (Cambridge, The MIT Press, 1996)Google Scholar.

47 Luhmann, N., A Sociological Theory of Law (Longon, Routledge and Kegan Paul, 1985)Google Scholar; and “The Unity of the Legal System” in Teubner, Gunther, ed., Autopoietic Law: A New Approach to Law and Society (Berlin, de Gruyter, 1988) 12–35Google Scholar.

48 Gunther Teubner, “Evolution of Autopoietic Law” in G. Teubner, ed., op cit., supra n. 47, at 217-241.

49 See also, David Nelken's article in this Symposium.

50 Cover, Robert, “Violence and the Word” (1986) 95 Yale Law Journal (1986), 1601–1629CrossRefGoogle Scholar.

51 See, e.g., Austin Sarat, “Every Good Discipline Deserves a Canon, or How Can We Fight if We Are Not Armed?” Law & Society Newsletter, November 1998, 1-3.

52 Kahn, Paul, The Cultural Study of Law. Reconstructing Legal Scholarship (Chicago, Univ. of Chicago Press, 1999)Google Scholar.

53 Ibid., at 27.

54 Ibid., at 1.