I.What is Legal Sociology?
Legal sociology, together with legal history and legal philosophy, constitutes one of the foundations of the law as a discipline of scientific study. A common feature and particularity of these sub-disciplines of the law is their close relationship with a neighbouring discipline outside the legal realm. In the case of legal sociology, this is obviously the relationship with the discipline of sociology. According to EMILE DURKHEIM, one of the discipline’s founders, sociology is a science that studies social phenomena as social facts, that is manners of acting, thinking, and feeling in society that can be observed from an objective perspective.1 DURKHEIM understands sociology as a positivistic science. In this context, positivism entails two things: firstly, a particular view of social phenomena as objective data and secondly, a value-neutral way of examining these phenomena.2 Consequently, the key purpose of sociology is to observe social facts as objective data in a value-neutral way. This methodology contrasts with that of the law, which is a normative discipline, operating in accordance with a societal perception of how things should be. Both the law generally and legal doctrine in particular are preoccupied with the form of the law, that is to say, they are fundamentally concerned with the systematic relationship between various abstract principles, which can then be used in order to logically produce decisions in concrete cases. The particularity of legal language is its performative quality.3 For example, words in a statute or a contract do not merely describe a situation or narrate a story; they are supposed to have practical effects in the lives of individuals and within society.
Legal sociology does not belong to the formally closed realm of legal doctrine nor does it merely describe legal facts in an objective way. Its paradoxical location in-between the disciplines of law and sociology is reflected in the various different names that are used to describe the field at issue; besides legal sociology, the terms sociology of law, sociological jurisprudence, jurisprudential sociology, law and society, sociolegal studies, and legal realism are also frequently encountered within the academic literature. While most of these terms lack precise contours, in this chapter, the term “legal sociology” is used in order to emphasise that the subject we are dealing with is a sub-field of the law as opposed to a sub-field of sociology. Legal sociologists can be defined as jurists who are particularly interested in studying the law from an interdisciplinary perspective. Rather than viewing the law as a formally closed and scientifically self-sufficient system, they observe the law as a realm embedded within broader societal dynamics. To properly adhere to this methodology, legal sociologists must temporarily externalise their observation perspective; they must examine the law from a position that is independent from the discipline itself. On the other hand, legal sociologists do not content themselves with simply observing and describing the law from an external, sociological perspective; instead, they look to re-import what they have learned back into the law, in order to improve the law’s workings.
The origins of the scientific study of law and society date back to the threshold of the 20th century when two lawyers, EUGEN EHRLICH (in Europe) and ROSCOE POUND (in the United States), together argued that a formalist conception of the law (where law is encapsulated in a closed and self-sufficient realm of jurisprudence) should be rejected. In order to oppose and overcome legal formalism, they invented sociological jurisprudence as a field of research that was, as POUND had famously stated in 1910, more concerned with law in action than law in books.4 They claimed that any scientific study of legal practice in general is a sub-domain of sociology.5 However, the problem with conceiving legal science as a sub-domain of sociology is that one overlooks the fundamental difference between “is” and “ought”. Whereas the statement that something “is” the case is a description of observed facts, as sociological studies do, the statement that something “ought” to be the case, as the law does, prescribes a normative end. Although it was some time ago that the pioneers were trying to resolve the paradox of engaging in a sociological analysis of the law, the distinction between description (“is”) and prescription (“ought”) continues to present a methodological challenge to legal sociology.
While legal sociology is not a sub-discipline of sociology, it has, ever since its beginnings, been influenced by the writings of classic sociological theorists including AUGUSTE COMTE (1798–1857), KARL MARX (1818–1883), EMILE DURKHEIM (1858–1917), MAX WEBER (1864–1920), TALCOTT PARSONS (1902–1979), NIKLAS LUHMANN (1927–1998) and JÜRGEN HABERMAS (born in 1929), to mention just a few. Adopting a sociological perspective enables the legal sociologist to take into account social facts which offer important information about the law’s causes as well as its effects. Legal sociology is thus an empirical science of the law, analysing its emergence and functioning. The approach is decidedly objectivist; it aims at a value-free observation and description of factual developments, without letting normative preconceptions dictate the outcome. To better understand the operation and effect of the law, legal sociology builds on or develops theories offering perceptions of the social structure and the law’s function within a society of ever-growing complexity.
What exactly is a theory? A theory is generally defined as an abstract scientific idea or model that is used to describe a certain aspect of reality. Besides simply describing this reality, a theory normally also attempts to provide explanatory (causal) statements. A social theory, more specifically, aims at explaining social phenomena. To meet the ambitions of science, verification or falsification through empiric observation is also required. The purpose of using theory in the social sciences is primarily complexity management: a theory provides for a simplified model of the reality segment that the researcher is attempting to observe, describe and test. Without such simplification, the observed segment would be overly complex and the observation would not be distinct from noise and therefore be unsuitable to draw meaningful conclusions from it.
Thus, a theory enables a social scientist to make certain assumptions about the world and to build analyses, comparisons and predictions from this assumption without being permanently required to take account of the world’s full complexity in his work. Regarding the ways in which theories materialise, it is roughly possible to distinguish between inductive and deductive approaches. Inductive theories come about through the observation of a certain aspect of reality, followed by a subsequent explanation that needs to be generalised and then empirically tested. Deductive theories, in contrast, build on hypotheses that are designed by a theorist through abstract thinking. The persuasiveness of a given hypothesis is then measured in relation to the results that its exposure to empiric verification or falsification produces.
As a rule, all types of social theories may find application in legal sociology. It should be noted, however, that if several theories are simultaneously used to analyse a specific reality, special attention must be paid to their compatibility with one another. This is one methodological challenge to legal sociology; an even bigger challenge, however, relates to the aforementioned distinction between “is” and “ought”. The question is how to transfer the knowledge that is gained within the descriptive context of social science to the realm of legal practice, which is where normative conclusions are drawn and performative effects result. The impossibility to meld the law and the social sciences is a paradox. The way out of this paradox is to construct legal sociology as a two-step method of socio-legal analysis. The first step involves an empiric observation and description of real legal problems from the perspective of social science and social theory. While this is necessary to fully understand the social dimension of the legal problems at issue, a second step must follow where an attempt is made to re-import the gained insights back into the legal system. This second step requires a change of perspective from describing social facts to prescribing normative ends and is essential if legal sociology is to contribute to the law’s improvement.
1EMILE DURKHEIM, The Rules of Sociological Method, translated by W. D. Halls, edited and with a new introduction by Steven Lukes, New York 2013, p. 20.
2ROGER COTTERRELL, The Sociology of Law: An Introduction, 2nd edition, Oxford 1992, p. 11.
3John L. Austin, How to Do Things with Words, 2nd edition, Oxford 1975 (1962).
4ROSCOE POUND, Law in Books and Law in Action, in American Law Review, 44, 1910, pp. 12.
5EUGEN EHRLICH, Fundamental Principles of the Sociology of Law, translated by Walter L. Moll, New Brunswick 2002 (1913), p. 25; ROSCOE POUND, The Scope and Purpose of Sociological Jurisprudence, in Harvard Law Review, 24(8), 1911, pp. 591, p. 594.