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Three Voices of Socio-Legal Studies

Published online by Cambridge University Press:  04 July 2014

Malcolm M. Feeley
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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

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References

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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.

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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.

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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.

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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.

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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.

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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.