Sociology of law
From Wikipedia, the free encyclopedia

Sociology of law refers to both a sub-discipline of sociology and an approach within the field of legal studies. Sociology of law is a diverse field of study which examines the interaction of law with other aspects of society, such as the effect of legal institutions, doctrines, and practices on other social phenomena and vice versa. Some of its areas of inquiry include the social development of legal institutions, the social construction of legal issues, and the relation of law to social change. Sociology of law also intersects with the fields of jurisprudence, economic analysis of law and more specialized subjects such as criminology.[1]
History
Initially, legal theorists were suspicious of the sociology of law. The influential Austrian jurist Hans Kelsen attacked one of its founders, Kelsen's compatriot Eugen Ehrlich, who wanted to emphasise the difference between positive law, which lawyers learn and apply, and other forms of 'law' or social norms that regulate everyday life, generally preventing conflicts from reaching lawyers and courts.[2] Around 1900 Max Weber defined his "scientific" approach to law, identifying the "legal rational form" as a type of domination, not attributable to people but to abstract norms.[3] Legal rationalism was his term for a body of coherent and calculable law which formed a precondition for modern political developments and the modern bureaucratic state and developed in parallel with the growth of capitalism.[4] Another classic sociologist, Émile Durkheim, wrote in The Division of Labour in Society that as society becomes more complex, the body of civil law concerned primarily with restitution and compensation grows at the expense of criminal laws and penal sanctions.[5] Durkheim also argued that a sociology of law should be developed alongside, and in close connection with, a sociology of morals, studying the development of value systems reflected in law. Other notable early legal sociologists included Hugo Sinzheimer, Theodor Geiger, Georges Gurvitch and Leon Petrażycki in Europe, and William Graham Sumner and Nicholas Timasheff in the U.S.[6]
Classical Sociology
The place of law in society was sociologically explored in the seminal works of both Max Weber and Émile Durkheim. The writings on law by these scholars are foundational to the entire sociology of law today.[7]
Max Weber
Max Weber was trained in the law and wrote about it extensively in his sociological writings. Weber formulated the sociology of law as an external approach to law that studies the empirical characteristics of law, as opposed to the internal perspective of the legal sciences and the moral approach of the philosophy of law. Central to the development of modern law for Weber was the formal rationalization of law on the basis of general procedures that are applied equally and fairly to all. Modern rationalized law is also codified and impersonal in its application to specific cases.
Emile Durkheim
Émile Durkheim wrote about law extensively in his important book on the social division of labour. Law is an indicator of the mode of integration of a society, which can be mechanical, among identical parts, or organic, among differentiated parts such as in industrialized societies. Over the course of history, law undergoes a transformation from repressive law to restitutive law. Restitutive law operates in societies in which there is a high degree of individual variation and emphasis on personal rights and responsibilities. Though Durkheim is best known in socio-legal scholarship for the theses of his first book The Division of Labour in Society his later works contain much other, often differently oriented but no less significant, writing about law.[8]
Contemporary Perspectives
Modern Sociology of Law
After World War II, the study of law was not central in sociology, although some well-known sociologists did write about the role of law in society. In the work of the Talcott Parsons, for instance, law is conceived as an essential mechanism of social control. In response to the criticisms that were developed against functionalism, other sociological perspectives of law emerged. Critical sociologists developed a perspective of law as an instrument of power. However, other theorists in the sociology of law, such as Philip Selznick, argued that modern law became increasingly responsive to a society's needs and had to be approached morally as well. Still other scholars, most notably the American sociologist Donald Black, developed a resolutely scientific theory of law on the basis of a paradigm of pure sociology. Equally broad in orientation, but again different, is the autopoietic systems theory of the German sociologist Niklas Luhmann.
In more recent years, a very wide range of theories has emerged in the sociology of law as a result of the proliferation of theories in sociology at large. Among the recent influences can be mentioned the work of the French philosopher Michel Foucault, the German social theorist Jürgen Habermas, feminism, postmodernism and deconstruction, neo-Marxism, and behaviorism. The variety of theoretical influences in the sociology of law has also marked the broader law and society field. However, although the multi-disciplinary law and society field remains very popular, the disciplinary specialty field of the sociology of law is today also "better organized than ever in institutional and professional respects."[9]
Law and Society
In legal studies, the sociology of law is part of a more broadly conceived law and society approach or socio-legal studies. Its focus is on theoretically guided empirical studies. As such it draws on and contributes to social theory. The sociology of law is not to be confused with sociological jurisprudence. The latter is a juristic perspective, developed in the United States by Roscoe Pound and by earlier jurists in various European countries, that seeks to base legal arguments on sociological insights.
Notes
^ Jary, Collins Dictionary of Sociology, 636
^ Rottleuthner, La Sociologie du Droit en Allemagne, 109* Rottleuthner, Rechtstheoritische Probleme der Sociologie des Rechts, 521
^ Rheinstein, Max Weber on Law and Economy in Society, 336
^ Jary, Collins Dictionary of Sociology, 636
^ Johnson, The Blackwell Dictionary of Sociology, 156
^ Gurvitch, Sociology of Law, 142* Papachristou, Sociology of Law, 81–82
^ Deflem, Mathieu. 2007. "Sociological Theories of Law." Pp. 1410-1413 in Encyclopedia of Law and Society: American and Global Perspectives, edited by David S. Clark. Thousand Oaks, CA: Sage Publications.
^ Cotterrell, Emile Durkheim: Law in a Moral Domain (1999)
^ Deflem, Mathieu. 2007. "Sociological Theories of Law." Pp. 1410-1413 in Encyclopedia of Law and Society: American and Global Perspectives, edited by David S. Clark. Thousand Oaks, CA: Sage Publications.
References
Gurvitch, Georges; Hunt, Alan (1942—New edition 2001). "Max Weber and Eugene Ehrlich", Sociology of Law. Athens: Transaction Publishers. ISBN 0-765-80704-1.
Jary, David; Julia Jary (1995). Collins Dictionary of Sociology. HarperCollins. ISBN 0004708040.
Johnson, Alan (1995). The Blackwell Dictionary of Sociology. Blackwells publishers. ISBN 1557861161.
(Greek) Papachristou, T.K. (1999). "The Sociological Approach of Law", Sociology of Law. Athens: A.N. Sakkoulas Publishers. ISBN 9-601-50106-1.
Rheinstein, M. (1954). Max Weber on Law and Economy in Society. Harvard University Press.
Further reading
Abel, Richard L. (1980) “Redirecting Social Studies of Law” in 14 Law and Society Review 803-29.
Aubert, Vilhelm (1994) Continuity and Development in Law and Society (Oslo, Norwegian University Press)
Aubert, Vilhelm (1980) Inledning till rättssociologi (Stockholm, AWE/GEBERS).
Aubert, Vilhelm, ed, (1969) Sociology of Law (London, Penguin)
Aubert, Vilhelm (1969) “Law as a Way of Resolving Conflicts: The Case of a Small Industrialized Society” in Laura Nader (ed.) Law in Culture and Society (Chicago, Aldine Publishing Company)
Aubert, Vilhelm, et al (1952) En lov i søkelyset (A Law In the Searchlight), (Oslo, Akademisk forlag)
Banakar, Reza, Merging Law and Sociology: Beyond the Dichotomies in Socio-Legal Research (Berlin/Wisconsin, Galda & Wilch, 2003)
Banakar, Reza and Max Travers, eds, An Introduction to Law and Social Theory (Oxford: Hart, 2002)
Banakar, Reza and Max Travers, eds, Theory and Method in Socio-Legal Research (Oxford: Hart, 2005)
Black, D. (1976) The Behavior of Law (New Haven, Conn. : Yale University Press)
Carbonnier, Jean (1994) Sociologie du droit (Paris: PUF Quadrige)
Carbonnier, Jean (2001) Flexible Droit 10th edn. (Paris: LGDJ)
Cotterrell, Roger (1992) The Sociology of Law: An Introduction 2nd edn. (Oxford: Oxford University Press / Butterworths)
Cotterrell, Roger (1995) Law's Community: Legal Theory in Sociological Perspective (Oxford: Clarendon Press)
Cotterrell, Roger (2006) Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Aldershot: Ashgate)
Cotterrell, Roger (2008) Living Law: Studies in Legal and Social Theory (Aldershot: Ashgate)
Cotterrell, Roger, ed, (2006) Law in Social Theory (Aldershot: Ashgate)
Cotterrell, Roger, ed, (2001) Sociological Perspectives on Law (2 vols) (Aldershot: Ashgate)
Dalberg-Larsen, Jørgen (2000) The Unity of Law: An Illusion (Berlin, Galda + Wilch Verlag)
[1] Mathieu Deflem, Sociology of Law: Visions of a Scholarly Tradition (Cambridge: Cambridge University Press, 2008)
Ferrari, V. (1989) “Sociology of Law: A Theoretical Introduction” in Ferrari, V. and Uusitalo, P. Two Lectures on the Sociology of Law. Helsinki : University of Helsinki, 1989. Sociology of Law Series, no. 6/101 at 7-31.
Ehrlich, Eugen (1936) Fundamental Principles of the Sociology of Law New Brunswick: Transactiuon Books reprint, 2002 (orig. 1913).
Griffiths, J. (1986) “What is Legal Pluralism” in Journal of Legal Pluralism and Unofficial Law at 24: 1-55.
Freeman, Michael, ed, Law and Sociology. Oxford: Oxford University Press, 2006.
Friedman, L. M. (1986) “The Law and Society Movement” in Stanford Law Review, at 38: 763-780.
Gurvitch, Georges (1932) L’idée du droit social: Notion et système du droit social (Paris: Librairie de Recueil Sirey)
Gurvitch, Georges (1947) Sociology of Law (New Brunswick, NJ: Transaction Publishers reprint)
Luhmann, N. (1985) A Sociological Theory of Law London: Routedge & Kegan Paul.
Macaulay, S. (1963) “Non-Contractual Relations in Business” in American Sociological Review, at 28: 55-67.
Nelken, David. (1984). “Law in Action or Living Law: Back to the Beginning in Sociology of Law” in Legal Studies, at 4: 157-82.
Nelken, David (1998) “Blinding Insights? The Limits of a Reflexive Sociology of Law” in Journal of Law and Society, at 25: 407-26.
Nelken, David, ed. (1997) Comparing Legal Cultures (Aldershot, Dartmouth)
Nelken, David, ed. (1996) Law as Communication (Aldershot, Dartmouth).
Nelken, David (1993) “The Truth About Law’s Truth” in European Yearbook of the Sociology of Law.
Nelken, David (1986) “Beyond the Study of ‘Law and Society’” in American Bar Foundation Journal 323.
Nonet, Philippe and Philip Selznick (1978) Law and Society in Transition: Toward Responsive Law (New York, Harper Torchbooks).
Petrazycki, Leon (1955) Law and Morality (Cambridge, MA: Harvard University Press)
Podgórecki, Adam. (1980). “Unrecognized Father of Sociology of Law: Leon Petrazycki.” Law and Society Review 15: 183-202.
Podgórecki, Adam (1991) A Sociological Theory of Law (Milano, Dott. A. Giuffre Editore).
Pound, Roscoe. (1943). “Sociology of Law and Sociological Jurisprudence.” University of Toronto Law Journal 5.
Santos, Boaventora de S. (1995) Toward a New Common Sense: Law, Science and Politics in The Paradigmatic Transition (London, Routledge).
Santos, Boaventura de S. (1989) “Toward a Postmodern Understanding of Law” in Legal Culture and Everyday Life (Onati, Onati Proceedings 1).
Santos, Boaventura de Sousa (1977) “The Law of the Oppressed: The Construction and Reproduction of Legality in Pasargada” in 12 Law and Society Review 5-125.
Sarat, Austin, ed, Blackwell Companion to Law and Society (Malden, Mass. and Oxford: Blackwell, 2004)
Stjernquist, P. (2001) Organised Cooperation Facing Law: An Anthropological Study (Stockholm: Almqvist & Wiksell)
Tamanaha, B. (1997) Realistic Socio-Legal Theory: Pragmatism and A Social Theory of Law (Oxford: Clarendon Press)
Teubner, Gunther (1993) Law as an Autopoietic System (Oxford, Blackwell)
Timasheff, Nicholas S. (1939) An Introduction to the Sociology of Law (Westport, Greenwood Press reprint, 1974).
Tomasic, Roman (1987) The Sociology of Law (London, SAGE Publications)
Travers, Max (1997) The Reality of Law: Work and Talk in a Firm of Criminal Lawyers (Aldershot, Dartmouth).
Travers, Max (1993) “Putting sociology Back into Sociology of Law” in 20 The Journal of Law and Society.
Ziegert, Klaus A. (1979). “The Sociology behind Eugen Ehrlich’s Sociology of Law.” International Journal of Sociology of Law 7: 225-73.
External links
American Sociological Association Section: Sociology of Law
International Sociological Association: Research Committee on Sociology of Law RC12
Socoflaw.net: Website of Mathieu Deflem's Sociology of Law (Cambridge University Press, 2008)
Socio-Legal Studies Association
Law and Society Association
Foundation for Law, Justice and Society