A critical review of two recent discussions of problems in the law of the welfare state helps to explain the contemporary appeals of a theory of legal evolution originally developed by social democratic theorists in conjunction with the rise of collective labor law in settings as disparate as Germany and the United States. Influential contemporary formulations treat collective labor law as merely one example of a generalizable decentralization of regulative and constitutive law, taken as a distinguishing feature of a new evolutionary stage. But the question is raised whether the plausibility of this model does not tacitly depend on a positive reading of the labor experience, and consequently whether its present relevance is not seriously put into question by the deep crisis of the labor movement, whose social and political power was acknowledged by the original theorists to underlie the legal structures taken as paradigmatic.

This article examines the interconnection between legal conflict and class structure in American agriculture. Law, as seen in the example of the California strawberry industry, is intimately involved in the transformation of economic systems and class relations and is itself affected by those changes. The impact of the law on social class varies across industrial subsectors and over time. In this case legal distinctions, in the context of changing political pressures and technoeconomic constraints on production, have encouraged the adoption of sharecropping. This form of production alters the legal status, economic interests, and subjective identification of workers, thus creating a new basis for future class interrelations.

The history of the Australian Press Council presents an opportunity to examine the thesis that advanced capitalist states are systematically resorting to dispersed forms of social control. While the council appears to conform to the specifications of a “dispersed agency,” it appears largely to be unintelligible in such terms. While representing some aspects of a social control institution, it is better comprehended in terms of the contradictory characteristics of the social field in which it is located, rather than in terms of a broad strategy of state expansion. The dispersal model should be recast to take account of such variations and to recognize the extent to which social fields may generate their own forms of institutionalized control, which bear a highly problematic relation to state regulation.

Our theory states that the police function, in its modern form, is linked to economic specialization and differential access to resources that occur in the transition from a kinship- to a class-dominated society. This theory shows the incremental steps by which this transition may come about, both historically and cross-culturally. In addition, we examine the implications of these steps for modern police-community relations.

Our theory is constructed from both anthropological and historical materials. It consists of four interdependent propositions: (1) The origin of a specialized police function depends upon the division of society into dominant and subordinate classes with antagonistic interests; (2) specialized police agencies are generally characteristic only of societies politically organized as states; (3) in a period of transition, the crucial factor in delineating the modern specialized police function is an ongoing attempt at conversion of the social control (policing) mechanism from an integral part of the community structure to an agent of an emerging dominant class; and (4) the police institution is created by the emerging dominant class as an instrument for the preservation of its control over restricted access to basic resources, over the political apparatus governing this access, and over the labor force necessary to provide the surplus upon which the dominant class lives.

We argue that the police institution has a double and contradictory origin and function, for at the same time and in the same society it may be both the agent of the people it polices and of the dominant class controlling these same people. An analysis linking the origin of the modern police function to social change in classless societies has important implications for an understanding of contemporary problems in police-community relations. It allows the dynamics of the social control function of police in small, homogeneous social units to be integrated with a consideration of its role in a complex society. Such an analysis also illuminates how an understanding of this specialized role may be obscured by the more general social control function of police displayed in simple social units, resulting in differential and conflicting expectations about the role and functions of police in the modern world.

McEwen and Maiman (1986) have disagreed with my claim that the case characteristic of admitted liability explains more variability in dispute outcome and compliance than whether the case was resolved through a mediation or adjudication forum. Those authors reanalyzed some of my data from an Ontario small claims court and concluded that forum type is the stronger variable. I take issue with them on a number of conceptual and methodological points. In my own reanalysis of the Ontario data I am able to demonstrate statistically that admitted liability is the stronger predictor of outcomes. I also discuss why this should be so and raise some questions about compliance. Whether we can generalize to McEwen and Maiman's data from Maine courts is a matter of speculation, but I am inclined to infer that we can. Our debate raises important issues in the assessment of dispute resolution.

This paper examines the place of critical inquiry within law and society studies. It suggests that such inquiry requires a periodic reexamination of both methodological and theoretical assumptions. In terms of method, critical inquiry would emphasize the particular and intensive as opposed to the general and extensive. In terms of theory, it calls attention to the limits of state legality and invites attention to ordinary social transactions in which the law appears invisible but is nonetheless powerful. The authors argue that it is possible to be both critical and empirical.