Banakar - Merging Law and Sociology - Pp. 44-53
Banakar - Merging Law and Sociology - Pp. 44-53
ISBN 3-931397-47-5
Reza Banakar
Mobility and Norm Change
Volume 5
R. ~H55S
CHAPTERTWO
Introduction
It was concluded in the previous chapter that the theoretical
constitution of mainstream sociology could not by itself explain away
the fragmentation of socio-legal research. In this chapter, we continue
the search for the sources of the problem by turning our attention to
the forms of knowledge which are produced by observing and
experiencing the internal or external realities of law.
As argued in the introductory chapter, we can distinguish at least
four standpoints each capable of producing a specific form of
knowledge and interest pertaining to law. The first standpoint is based
on the perspective of insiders who participate in and reproduce legal
processes and various institutional practices associated with law (the
inside participants). The best example of this group is practicing
lawyers such as judges or barristers. The second perspective belongs
to insiders who observe legal processes without participating in them
(the inside observers). A legal scholar systematising and expounding
legal decisions and cases or a solicitor advising a client or briefing a
barrister can be long to this second category. The third category
consists of outsiders to law, who for a limited period of time,
participate in legal processes (outside participants). Examples of this
group are plaintiffs, defendants, juries, lay judges and witnesses. The
fourth perspective belongs to those who observe legal processes and
institutional practices ofthe law from the outside without participating
in legal processes (the outside observers). Sociologists studying law's
effects or journalists reporting on trial proceedings can belong to this
second category. (See Diagram One on the next page.)
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Participation
Observation
.\
Insider's
Perspective
l. Inside Participant
- Judges
- Barristers
2. Inside Observer
- Legal Advisors
- Legal Scholars
Outsider's
Perspective
3. Outside Participant
- Juries
- Plaintiffs
4. Outside Observer
- joumalists
sociologist
Diagram One
The inside participants, such as judges, and the inside observers, such
as legal advisors, share the practical insider attitudes and legal know
how, which the outside participants and outside observers usually (but
not always) lack. Since the focus of this chapter is on forms of
knowIedge and understanding of law, 1 shall in the following employ
the concept of "Iawyer" to represent the insiders who per definition
posses a legal know-how and their knowledge is rooted in the internal
....
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.J.
i
1. Two Approaches
"
Broadly speaking, sociological studies of law have given birth to a
number of perspectives or general approaches to the study of the
relationship between law and society. William M. Evan has
distinguished at least five such approaches.t The first of these is based
on a so-called "role analysis", and focuses on the behaviour of legal
l William M. Evan, Law and Sociology (New York, The Free Press of
Glencoe, 1962).
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one respect.
Looking closely at these five approaches we discern a division
within the sociology of law indicating two "ideal typical" research
orientations based on different assumptions concerning law and
society. This division, which largue is still valid today, also reflects
the precariously constructed relationship between legal studies and
legal practice, on the one hand, and sociology, on the other. The first
orientation is firmly rooted within social sciences and receives its
intellectual impulses mainly from mainstream sociology. As pointed
out by Campbell and Wiles, whose understanding of the make-up of
the socio-legal field resembles that of Evan, the goal of this
orientation, which "attempts to be exogenous to the existing legal
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system", is to transcend the focus on laws, legal doctrine and the legal
system in order to "construct a theoretical understanding of that legal
system in tenns of the wider social structures".3 That is why "the law,
legal prescriptions and legal definitions are not assumed or accepted,
but their emergence, articulations and purpose are themselves treated
as problematic and worthy ofstudy".4
The second orientation is committed to a juristic paradigm, which
reaches its extreme form in Evan's fifth approach, which he called
"methodological analysis" where sociology is used not for substantive
analysis but basically as a tool for data coIlection. 5 This orientation
distinguishes itself by implicitly or explicitly accepting the hegemony
of positive law in relation to society. Thus, it tends to treat the nature
of the legal order as unproblematic. 6 It is worth noting here that this
type of methodological analysis, which is in its extreme fonn rare, is
interestingly enough methodologicaIly problematic. Within the
philosophy of social science it is maintained that there exists an
intricate relationship between sociological theorising and reflection
(or the images of the social world used as a point of departure for our
studies), on the one hand, and the development, employment and
application of various methods of research, on the other. Assuming
3 C. M. Campbell and Paul Wiles, "The Study of Law in Society in
Britain" in (1976) 10 Law and Saciety Review 547-78 at 553.
4 Ibid.
5 Campbell and Wiles also argue in a similar fashion sharply
distinguishing between sociology of law-which they view as a speciality
within general sociology aiming to illuminate the relationship between legal
order and social order-and socio-legal studies, which according to them
focuses on the problems of justice and law. See C. M. Campbell and Paul
Wiles, "The Study ofLaw in Society in Britain" in (1976) 10 Law and Saciety
Review 547-78.
~.
that this conclusion is correct, one must view any analysis of the law,
or any other social phenomenon for that matter, that claims to have
been conducted exclusively to gather data, without fonnulating and
reflecting on its underlying assumptions or its socio-political aims and
aspirations, with great suspicion. This is also why divorcing the
juristic approach (or "socio-legal studies" as it has been used to
indicate the academic lawyers' interest in the application of social
scientific methods of analysis) from a more sociologicaIly and
theoreticaIly aware analysls of the law (or "the sociology of law")
amounts to one of the most damaging dichotomies of the socio-legal
field. At the same time this question is difficult to debate criticaIly
because, in the short term, the academic lawyers who are making their
careers in law gain little in terms of the "scientific stakes" of their
field by making a serious commitment to social sciences. So, in a
recent piece, we find Phil Thomas and SaIly Wheeler celebrating the
fact that "while sociology of the law is most marginal to curriculums
in both Sociology and Law and has little foothold in the academic
research community, socio-legal studies has gone from strength to
strength".7 The socio-legal studies that Wheeler and Thomas are
celebrating is, of course, not an altemative to, but a branch of legal
studies, that "inserts into the world of academic lawyers a review of
values and standards that will aIlow academic legal studies to develop
and change". 1 do in principie share the goals that Wheeler and
Thomas are setting out for socio-legal studies. Yet 1 do not see how an
effective, lasting and fundamental review of values and standards can
be brought about without full theoretical engagement and commitment
to advancing social scientifically aware socio-legal research.
The "juristic" approach, as 1 shaIl caIl it here for lack of better
concept, distinguishes itself from the more sociologicaIly committed
studies of law by giving precedence to the practical insider attitudes,
conceptions and experiences of law and legal institutions at the
expense of other forms of legal experience or knowledge (such as
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13 Among the factors which cause and sustain this imbalance are the
macro character of the legal system and what Sarat and Silbey described as
"the puB of the policy audience". See Austin Sarat and Susan Silbey, "The
PuB ofthe Policy Audience" in (1988) 10 Law and Policy 98-166.
14 Cf. A. Bancaud, "Sociologen och ratten eller Frestelsen att skanda" in
(1987) 4 Tidskriji jOr rdttssoci%gi 119-34.
15 There are, of course, sociologists who have successfuBy transcended
the limitations of the outsider's perspective. For a classical example see
Doreen McBamet's study of the operation of criminal courts. Such exceptions
demonstrate that the sociological limits in this regard are not those of
sociology, but a function of the role adopted by sorne sociologists of law.
Doreen 1. McBamet, Conviction: Law, the State and the Construction 01
Justice (London, MacmiBan, 1981).
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2. Examples
Let us expand and c1ariry this point using three examples of
sociological studies of law from the outside. The first example
concerns a sociological examination of how law is affected by
information technology. The second example is part of Donald
Black's sociological theory of law. These two examples are chosen
because they represent empirically grounded and sociologically
informed socio-legal research and theorising. Finally, the third
example presents a part of feminist studies concerning the status of
women within the legal profession.