This collection, which brings together critical reviews of the literature on a variety of contemporary issues in law and social science, has its origins in two judgments about our field that may appear contradictory but in fact are complementary. On the one hand, the empirical data and generalizations produced during the last several decades seem to call for, and amply to deserve, compilation and summary of the kind often found in propositional inventories. But at the same time recent scholarship often seems stagnant, further documentation (or falsification) of a well-established (or generally discredited) hypothesis, one more entry in a sterile, and ultimately unresolvable, theoretical debate—a by-product of the demands of tenure-review committees rather than the expression of any real intellectual engagement. If this judgment is fair, reflective and critical reassessment of the field is essential to break the hold of existing preoccupations and to formulate new questions. These dual motives will be apparent throughout this volume. Here I will offer my view of the kind of reappraisal that is needed, explain how the topics and authors were selected, and suggest some of the ways in which the essays that follow contribute to the task.

This review essay analyzes the relation between language and the two basic functions of law, the ordering of social relations and the restoration of social order when it breaks down. One main theme is the linguistic description of legal language and the sociolinguistic and sociolegal limitations on its reform. Drawing on a basic distinction between the nature of discourse in play, ritual, and the “serious” mode of everyday life, the essay goes on to contrast “play” genres of disputing with “fact”-oriented genres. An overview of the forms and functions of play genres of disputing is followed by a discussion of the management of three main aspects of “facf'-oriented disputes: the substance of arguments, linguistic form, and language and silence. Narrative and questioning modes of claim construction are contrasted. The notion of “thickening” in legal language is presented, and five possible explanations for this phenomenon are explored. The essay concludes with a discussion of topics for future debate and research.

This paper develops a theoretical framework for investigating the socialpsychological dynamics of punishment reactions to criminal offenders. Two basic types of punishment motives are delineated: behavior control and retribution. The target, or focus, of these motives may be the offender or a broader social audience. Within each of the four cells defined by this classification, we review the literature describing how punishment responses are influenced by characteristics of the rule, the offense, and the offender, as well as by the attitude and personality of the reactor. A large number of empirically testable propositions are generated.

Nearly all of us will agree that “one case does not make a sample.” Nonetheless, there is a tendency to disregard this advice when it comes to studying the historical origins of laws concerning crime and delinquency. This is understandable since it is generally acknowledged that the micro- and macro-level processes surrounding the origins of many such laws are so complex that they can only be examined case by case (e.g., Hall, 1952; Chambliss, 1964). But such an approach creates problems: although any single case study is clearly inadequate to support generalizations, strong theoretical inferences frequently are drawn, often violating the constraints adopted with more conventional data. This essay reviews a number of North American case studies in an attempt to clarify the theoretical and methodological limitations, prospects, and findings of the literature on criminal lawmaking.

I introduce this review by contrasting the two principal theoretical perspectives that guide such studies. I then discuss problems of evidence related to these rival theories, using an analysis of the origins of theft laws as my example. Following this, I review a large number of empirical studies concerned with the origin of laws that I have grouped into three categories: (i) delinquency and probation; (ii) alcohol and drug abuse; and (iii) prostitution and sexual psychopathy. Finally, I examine the implications of these and other legislative studies for future work in this important area of research.

This article is a survey of the literature on appeal, emphasizing its significance for political regimes rather than for individual litigants.

Whether federalism is more than a legal fiction is a question that generates considerable controversy among scholars in law and the social sciences. Historians of nineteenth-century American federalism have differed about the workings of the federal system in the era characterized as “dual federalism.” This article provides an analysis of these controversies and offers a theoretical position on the problem of real power under federalism. The historical literature, it is argued, provides legal scholars and social scientists with abundant data on the reach, diversity, and effects of governmental action in the different historical epochs of American federalism. The relationship of federalism in the United States to political freedom, governmental performance and efficiency, and the formation of public policy all receive attention.

Post-World War II theories of modernization, including theories of law and development, have proved inadequate either to explain development and underdevelopment or to make a substantial contribution to our understanding of the role of law in underdeveloped countries. To what extent do contemporary ideas of underdevelopment and dependency in the social sciences provide the foundation for a theoretical renewal in the comparative sociology of law? To answer this question, the paper first examines the origins of these ideas and discusses the methods, presuppositions, and concepts of the principal theoretical writings on underdevelopment and dependency. It then considers two important issues raised by these writings and addressed by a number of recent studies: the relation between the state and classes, and the relationship of peasants to capitalism. This review concludes that theories of underdevelopment and dependency contribute to the reorientation of social research on law by forcing a reappraisal of previous ideologies and proposing new frameworks of analysis. But it also argues that such a reorientation must ultimately transcend those concepts by participating in the elaboration of Marxist theories of law.

The essays in this volume offer a wealth of suggestions for new directions in sociolegal research, not only about the particular subjects they themselves address but also, by analogy, about many others. Here I want to approach the task of theoretical reorientation in a different way. While these essays were in progress I had occasion to attempt a critical overview of recent American scholarship in order to identify the questions posed and assess their strengths and weaknesses. This was in no sense a systematic research effort but merely a reflection upon my experience as editor of this Review from 1976 to 1978, based upon the approximately 500 manuscripts submitted, the nearly 200 books sent for review, the proposals offered for this project, and the papers presented at the second national meeting of the Law and Society Association in Minneapolis in 1978. I would modify these views somewhat in light of work disseminated in other ways or produced during the subsequent two years, but I would not greatly alter them. I offer them here in the hope of stimulating debate on the level of metatheory, for I sense that our field is running so smoothly along familiar tracks that the questions and answers have begun to sound a comfortable, but rather boring, “clackety-clack.”