Partner Article

Law in the books

Hence the call for the application of sociology to law. The early agenda for sociology ranged from studying the gap between “law in the books” and “law in action,” to discovering the social influences on the making, the application, and the interpretation of law, to learning whether law is effective in achieving social policy, and how it can be made more effective when it is not. Many sociological studies of law, from the study of crime to influences on judicial decision-making, were conducted to meet this call. Under the influence of sociologist E. A. Ross, law came to be understood as a mechanism of social control, and the thrust of many studies was to make law more efficient and effective in accomplishing this task. A backlash against this jurisprudence-dominated agenda gradually developed from the sociological standpoint, which decried the instrumental use of sociology as a “handmaiden to law.”

As the science of society, the application of sociology to law, it has been argued, should take place in the context of general theories about society, with proper attention paid to epistemological and methodological concerns. The classical sociological theories about law—famously including 1. Émile Durkheim’s view of law as the essential element integrating modern society, 2. Max Weber’s ideal-type analysis of the kinds of law found relative to kinds of societies, and 3. Karl Marx’s characterization of law as determined by economic forces, serving the dominant class all possessed these qualities. 4. A modern sociological theory of this type of law is Donald Black’s view, which assumes a positivistic stance of measuring law in quantitative terms, and articulates a series of “laws” of legal behavior based upon patterns he observes relating to factors like degree of social stratification.

A different current source of criticism of the jurisprudence-influenced approach to sociology and relevance of sociology to law from critical schools of sociolegal theory, including “critical empiricists” and “post-empiricists,” which reject positivism and many of the epistemological underpinnings of classical sociology (including the fact/value distinction). Adherents criticize sociology and law as currently practiced as a conservative tool that serves to preserve the status quo by enhancing the efficiency of law and by failing to scrutinize and reveal the institutional structures and ideological beliefs about law circulating in society which perpetuate (class-based, gender-based, and/or race-based) oppression and domination.

Sociological approaches to law, according to this view, must reject the agenda set by jurisprudence, and instead seek to expose all forms of domination perpetuated through law. Sociology and law thus encompasses divergent perspectives on law. Despite significant internal schisms, a growing community of scholars and body of discourse has developed around the combination of sociology and law, united by the shared commitment to view law as a social phenomenon that must be examined in sociological terms.

This was posted in Bdaily's Members' News section by Wales Victoria .