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Loyalty and Betrayal: Cotterrell's Discovery and Reproduction of Legal Ideology

Published online by Cambridge University Press:  27 December 2018

Susan S. Silbey
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Type
Review Essay
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Law & Social Inquiry , Volume 16 , Issue 4 , Fall 1991 , pp. 809 - 833
Copyright
Copyright © American Bar Foundation, 1991 

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References

1 Although there are several other such efforts, few attempt the theoretical advance that Cotterrell seeks, and fewer still locate their effort politically. See William M. Evan, Social Structure and Law (Beverly Hills, Cal.: Sage Publications, 1990); Lawrence M. Friedman, Law and Society: An Introduction (Englewood Cliffs, N.J.: Prentice Hall, 1977), and id., The Legal System 2d ed. (New York: Russell Sage Foundation, 1977); Robert Kidder, Connecting Law and Society (Englewood Cliffs, N.J.: Prentice Hall, 1983); Herbert Jacob, Law and Politics in the United States (Boston: Little, Brown, 1986); Richard Lempert &. Joseph Sanders, An Invitation to Law and Social Science (New York: Longman, 1986); Edwin M. Schur, Law and Society: A Sociological View (New York: Random House, 1968); Roman Tomasic, The Sociology of Law (Beverly Hills, Cal.: Sage Publications, 1985); Steven Vago, Law and Society, 2d ed. (Englewood Cliffs, N.J.: Prentice Hall, 1990). Interpretive readings with theoretical and political ambition are more often found in articles, but here few attempt to synthesize the full historical and empirical breadth of the research.Google Scholar

2 See, e.g., Susan S. Silbey “A Sociological Interpretation of the Relationship between Law and Society,” in Richard John Neuhaus, ed., Law and the Ordering of our Life Together (Grand Rapids, Mich.: Eerdmans Publishing, 1989); Silbey, Susan S. & Sarat, Austin, “Critical Traditions in Law and Society Research,” 21 Law & Soc'y Rev. 165 (1987);id., “Reconstituting the Sociology of Law: Beyond Science and the State,” in David Silverman & Jaber Gubrium, eds., The Politics of Field Research: Beyond Enlightenment (Beverly Hills, Cal.: Sage Publications, 1989); Saiat, Austin & Silbey, Susan S., “The Pull of the Policy Audience” 10 Law & Pol'y (97 1988).Google Scholar

3 Rose, Nikolas, “Beyond the Public/Private Division: Law, Power and the Family,” 14 J. L. & Soc'y 61 (1987).Google Scholar

4 Berger & Berger, Sociology: A Biographical Approach (New York: Basic Books, 1972), describe sociology as a response to historical crises that challenged the taken-for-granted quality of Western society during the 19th century.Google Scholar

5 See Anthony Giddens, An Introduction to Sociology: A Critical Perspective (New York: Norton, 1991).Google Scholar

6 I want to thank my colleague Tom Cushman for helping me to understand the contradictory potentials in early sociological theory. See Mark Wardell & Stephen J. Turner, Sociological Theories in Transition (Boston: Allen & Unwin, 1986).Google Scholar

7 “Traditional and Critical Theory,” in Max Horkheimer, ed., Critical Theory: Selected Essays, trans. M. J. O. O'Connell et al. (1937; reprint, New York: Herder &. Herder, 1972) (“Horkheimer, ‘Traditional and Critical Theory’”).Google Scholar

8 See Michel Foucault, Discipline and Punish (New York: Pantheon, 1977); id., The History of Sexuality, Vol. 1: An Introduction (New York: Pantheon, 1978); id., Power/Knowledge, ed. Colin Gordon (New York: Pantheon, 1980); Nancy Reichman, “Managing Crime Risks: Toward an Insurance Based Model of Social Control,” in Steven Spitzer & Andrew Scull, eds., 8 Research in Law, Deviance and Social Control (Greenwich, Conn.: JAI Press, 1986); Simon, Jonathan, “The Ideological Effects of Actuarial Practices,” 22 Law & Soc'y Rev. 771 (1988); Sarat & Silbey, 10 Law & Pol'y; Beirne, Piers, “Adolphe Quetelet and the Origins of Positivist Criminology,” 92 Am. J. Soc. 1140 (1987);id., “Heredity versus Environment,” 28 Brit. J. Criminology 315 (1988);Pfohl, Stephen, “Criminological Displacements: A Sociological Deconstruction,” 33 Soc. Probs. 94 (1986); cf. George Canguilhem, On the Normal and the Pathological, trans. Carolyn Fawcett (1904; reprint, Dordrecht: D. Reidel Publishing Co., 1978).Google Scholar

9 Horkheimer, “Traditional and Critical Theory.” Cf. A. Wildavsky, Speaking the Truth to Power (Boston: Little, Brown, 1979).Google Scholar

10 Koval, Joel, “A Critique of DSM-III,” 9 Res. L. Deviance & Soc. Control 127, 127–28 (1988).Google Scholar

11 Brian Fay, Critical Social Science: Liberation and Its Limits 27 (Ithaca, N.Y.: Cornell University Press, 1987).Google Scholar

12 Id.Google Scholar

13 See Jaber Gubrium & David Silverman, eds., The Politics of Field Research: Beyond Enlightenment (Beverly Hills, Cal.: Sage Publications, 1989), for discussions of the limitations of enlightenment as a goal of fieldwork.Google Scholar

14 See bell hooks, Feminist Theory: From Margin to Center (Boston: South End Press, 1983); Sandra Harding & Merrill B. Hintikka, eds., Discovering Reality: Feminist Perspectives on Epistemology, Metaphysics and Philosophy of Science (Dordrecht: D. Reidel Publishing Co., 1983); Sandra Harding, ed., Feminism and Methodology (Bloomington: Indiana University Press, 1987); cf. Linda J. Nicholson, Ferninism/PostModemism (London: Routlege & Kegan Paul, 1990); Seyla Benhabib &. Drucilla Cornell, Feminism as Critique (Minneapolis: University of Minnesota Press, 1987).Google Scholar

15 Nikolas Rose, 14 J.L. & Soc'y at 61, 71 (cited in note 3), suggests that we need to distance ourselves from the tendency within critical thought to mistakenly simplify and unify power into relatively rigid structures and to project contemporary radical wisdom onto the past. Following Foucault, he suggests that we must abandon the preoccupation with demonstrating the function of false explanations and conceptualization and instead work to “fragment, disturb, and disrupt some of the central explanatory categories of critique.” There is not, he argues, a unified and internally coherent entity that is the locus of all social power and a single determinative social agent; rather, power is fragmented, regulation dispersed, and techniques and objectives contradictory.Google Scholar

This argument can be illustrated by contrasting what Sandra Harding calls the “feminist standpoint” perspective from “postmodern feminisms.” Sandra Harding, The Science Question in Feminism (Ithaca, N.Y.: Cornell University Press, 1986). The feminist standpoint can provide, it is argued, more accurate and fuller descriptions of social life than can the uncommitted observer of supposedly disinterested science. Unlike the points of view of dominant members of society, which are “partial and perverse understandings,” self-referential and self-serving, the understandings of social situations by subordinated populations are often more detailed and reliable because knowledge of the powerful other is necessary for survival. “Postmodern feminisms” build on the feminist standpoint's recognition of plural realities—e.g., the different understandings of master and slave, superordinate and subordinate—while giving up (1) science's goal of “one true story” and (2) the feminist standpoint claim that the perspective of women is general and universal, thus providing a “morally and scientifically preferable grounding for our interpretations and explanations of nature and social life” (at 194). Instead, postmodern feminisms share a profound skepticism about the possibilities of universal claims or perspectives. Postmodern feminists, according to Harding, deny any universal experience that is woman that does not also vary in terms of racial, class, national, ethnic, or tribal identity. See Elizabeth V. Spelman, Inessential Woman (Boston: Beacon Press, 1989). Thus postmodern feminists, according to Harding, seek to ground descriptions and understandings of social life in the “fractured identities modern life creates.” Here the feminist standpoint becomes one of the many groundings and identities that needs to be kept alive in the effort to sustain the multiple stories describing the complex contradictory threads of modern life. From this postmodern perspective, the feminist standpoint can “only be whatever emerges from the political struggles of ‘oppositional consciousnesses’—oppositional precisely to the longing for ‘one true story’ that has been the psychic motor of western science.” Harding, The Science Question in Feminism at 193.Google Scholar

16 Authority is clearly a heavily loaded word in this context. I employ it self-consciously to acknowledge the noticeable social and political influence of professional discourses and specifically to suggest that questions of method are often questions of authority. Sociology's claims to scientific reliability and validity are a source of its authority. As “reliable” information with “valid” descriptive measures, sociology enters the category of objective knowledge rather than subjective opinion. See Ernst Nagel, The Structure of Science: Problems in the Logic of Scientific Explanation (New York: Harcourt Brace, 1961). For a challenge to the claim of professional authority, especially among ethnographers, see, e.g., James Clifford, “Anthropological Authority”in id., ed., The Predicament of Culture (Cambridge, Mass.: Harvard University Press, 1988).Google Scholar

17 I want to thank Martha Minow for offering me the term “inoculation” for this function of criticism.Google Scholar

18 For Habermas, the social scientist cannot escape the role as social actor: “he cannot get outside his object domain to contemplate it like a star…. The very attempt betrays what is itself a value, an implicit judgment in favor of technical solutions to social problems which might otherwise be addressed practically through the formulation of rational consensus.” Rick Roderick, Habermas and the Foundations of Critical Theory 49 (New York: St. Martin's Press, 1986). The task, Habermas suggests, is to develop a social theory with the rigor of science without relinquishing the practical involvements, character, and virtues of classical conceptions of politics. For Habermas, social theory need not be mired in distinctions between objectivity and subjectivity but should seek, instead, to create the possibilities of transprofessional emancipatory knowledge. See Jurgen Habermas, Theory and Practice (Boston: Beacon Press, 1973); cf. Richard Bernstein, Beyond Objectivism and Relativism (Philadelphia: University of Pennsylvania Press, 1985).Google Scholar

19 For a brief introduction and alternative formulations of the ideological perspective, see “Special Issue: Law and Ideology,” 22 Law & Soc'y Rev. No. 4 (1988), and the citations there. I thank the Amherst Seminar and in particular Patricia Ewick for the formulation of the ideological perspective used in this paragraph.Google Scholar

20 This quote comes from an unpublished essay written collectively by the Amherst Seminar, 24 May 1988. See Thomas J. Scheff, Being Mentally III (New York: Aldine Publishing, 1984); Peter Conrad & Joseph W. Schneider, Deviance and Medicalization: From Badness to Sickness (St. Louis: Mosby Publishers, 1980).Google Scholar

21 Eugen Ehrlich, The Fundamental Principles of the Sociology of Law, trans. W. L. Moll, at 71 (New York: Arno Press, 1975).Google Scholar

22 Cotterrell is concerned to keep the sociology of law within a specified boundary that will prevent it from becoming so general as to no longer be the sociology of law but the sociology of everything, or life. Cf. Fitzgerald, Jeffrey & Dickins, Richard, “Disputing in Legal and Non-legal Contexts: Some Questions for Sociologists of Law,” 15 Law & Soc'y Rev. 681 (198081). Cotterrell seems to be experiencing some similar sense of disciplinary anomie.Google Scholar

23 For some authors the law is the “regulation established, interpreted and applied by state institutions” (at 41), although for others the state is itself an expansive concept and the law-as-state-regulation remains theoretically open until the state is better defined and understood.Google Scholar

24 See, e.g., Max Rheinstein, ed., Max Weber on Law in Economy and Society (New York: Simon & Schuster, Clarion Books, 1954); Bohannon, Paul, “The Differing Realms of the Law” or The Ethnography of Law, American Anthropological Association, 67 Am. Anthropologist 33 (1965).Google Scholar

25 Cotterrell is somewhat skeptical about the formulation of the “relative” autonomy of law because, he says, it merely ignores the problem of specifying the relationship between law and economic structure. He does appropriate, however, Bernard Edelman's formulation of both law and ideology as arenas of political struggle, Ownership of the Image: Elements for a Marxist Theory of Law, trans. E. Kingdom (London: Routledge & Kegan Paul, 1979) (“Edelman, Ownership”).Google Scholar

26 Here Cotterrell, citing Mann, Michael, “The Social Cohesion of Liberal Democracy,” 35 Am. Soc. Rev. 423 (1970), describes a more European, even British, phenomenon than one universally observed.Google Scholar

27 See, e.g., Nikos Poulantzas, State, Power and Socialism, trans. P. Camiller (London: New Left Books, 1978); Louis Althusser, For Marx, trans. B. Brewster (London: New Left Books, 1969); Edelman, Ownership. Google Scholar

28 See, e.g., Frug, Mary Jo, “Re-reading Contracts: A Feminist Analysis of a Contracts Casebook,” 34 Am. U.L. Rev. 1065 (1985);Kennedy, Duncan, “Form and Substance in Private Law Adjudication,” 89 Harv. L. Rev. 1685 (1976).Google Scholar

29 E. P. Thompson, Whigs and Hunters (New York: Pantheon Books, 1976).Google Scholar

30 Quoting Edelman, Ownership 134.Google Scholar

31 Cf. David Kairys, The Politics of Law 2d ed. (New York: Pantheon Books, 1990) (“Kairys, Politics“), for an alternative effort—one that specifically acknowledges the fractured texture of legal discourse; its focus, however, eclipses empirical studies of law.Google Scholar

32 In general, see 22 Law & Soc'y Rev. No. 4 (1988); for particular attention to history, see Elizabeth Mertz, “The Uses of History: Language, Ideology, and Law in the United States and South Africa” (at 661); Brinkley Messick, “Kissing Hands and Knees: Hegemony and Hierarchy in Shari'a Discourse” (at 637).CrossRefGoogle Scholar

33 Cf. John Brigham, “Rights, Rage and Remedy: The Construction of Legal Discourse,” 2 Stud. Am. Pol. Dev. 303 (1987); Kristen Bumiller, The Civil Rights Society (Baltimore: Johns Hopkins University Press, 1988); Engel, David, “Cases, Conflict and Accommodation: Patterns of Legal Interaction in an American Community” 1983 A.B.F. Res. J. 803;id., “The Cultural Context of Law: Rights, Difference and the Education for All Handicapped Children Act” (manuscript, SUNY-Buffalo, 1990); id., “Law in the Domain of Everyday Life,” in A. Sarat & T. Kearns, eds. Trie Law in Everyday Life (Ann Arbor: University of Michigan Press, forthcoming); Patricia Ewick & Susan S. Silbey, “Negotiating Subjectivities: Conformity, Contestation and Resistance in Narratives of Legal Consciousness” (presented at Law and Society Association annual meeting, Amsterdam, 1991); Lawrence Friedman, Total Justice (Boston: Beacon Press, 1985); Carol Greenhouse, Praying for Justice: Faith, Order and Community in an American Town (Ithaca, N.Y.: Cornell University Press, 1986); Sally E. Merry, Getting Justice and Getting Even (Chicago: University of Chicago Press, 1990); Merry, Sally E. & Silbey, Susan S., “What Do Plaintiffs Want? Reexamining the Concept of Dispute,” 9 Just. Sys. J. 151 (1984); Austin Sarat, “In the Belly of the Beast: The Legal Consciousness of the Welfare Poor” (on file with the principal investigators; prepared for presentation at Law and Society annual meeting, June 1989); Silbey, Susan S., “Child's Play: A Cultural Analysis of American Adolescents' Legal Consciousness,” Droit et Société no. 19 (1991);Yngvesson, Barbara, “Making Law at the Doorway: The Clerk, The Court, and the Construction of Community in a New England Town,” 22 Law & Soc'y Rev. 409 (1988).Google Scholar

34 For some heretical critical readings of doctrine, see Kairys, Politics. Google Scholar

35 John Brigham, Constitutional Language (Westport, Conn.: Greenwood Press, 1978); id., Civil Liberties and American Democracy (Washington, D.C.: Congressional Quarterly Press, 1984); and id., The Cult of the Court (Philadelphia: Temple University Press, 1987).Google Scholar

36 This emphasis is noted in the text. For example, Cotterrell begins the text by announcing his hope to overcome partial perspectives: “The possibility of ultimately describing and analyzing the social reality of law, as the embodiment of knowledge which transcends partial perspectives, is the possibility of Science” (at 4, emphasis in text). The description of courts begins by saying, “Our concern in this chapter will be to try to identify, in the light of the theory and concepts discussed in earlier chapters of this book, general characteristics of courts and of judicial work which are relatively constant in contemporary Western societies despite differences in the organisation and traditions of the legal systems in these societies” (at 217–18).Google Scholar

37 “Law and Sociology: Notes on the Constitution and Confrontation of Disciplines,” 13 J. L. & Soc'y, Spring 1986, at 9, 13.CrossRefGoogle Scholar

38 Id. at 13.Google Scholar

39 Id. at 24.Google Scholar

40 Id. at 27.Google Scholar

41 Id. at 26.Google Scholar

42 Id. at 28.Google Scholar

43 Id. at 25.Google Scholar

44 Within the Context of No Context is the title of a book by George Trow (Boston: Little, Brown, 1981) about postmodern cultural production and what appears to be the dissociation of signs from social structure. I have appropriated the title here to suggest that the claim to objective outsider status as a basis for social scientific authority is unsustainable.Google Scholar