legal theory: law and society

Law and Society

 

Discussions of law are often divided between two very different perspectives -- what has been called the "external" and "internal" points of view. Prominent Law and Society scholars adopt a similar distinction when they call for an "outside" instead of an "inside" perspective on law. Most law schools (especially during the first year) concentrate on teaching an "inside" perspective, an internal - doctrinal framework as the model for "thinking like a lawyer."

This internal - doctrinal perspective has some similarity to the "legal formalism" and "conceptualism" that Progressives and Legal Realists had been denouncing since the turn of the century. One of the most important characteristics of the formalism of late nineteenth century Classical Legal Thought was the way in which it represented its closed, internalistic point of view as "neutral, natural and necessary." The Law and Society movement arose as an extension of Legal Realismís effort to criticize the dominantly internalistic point of view in Classical Legal Thought for having produced a "heaven of legal concepts" unrelated to the real world.

The Law and Society perspective, like much of Legal Realism, treats law not as a closed system with an internal logic all its own but as the product of various external influences, like power, history and social, economic, and cultural influences. When Holmes proclaimed that "the life of law has not been logic; it has been experience," he was attacking an exclusively internalistic perspective that produced false certainty by confusing legal reasoning with mathematical or geometrical reasoning.

Another influence on the Law and Society movement was the Sociological Jurisprudence of Roscoe Pound. Pound had also delivered a powerful critique of late-nineteenth century classical legal thought for having lost touch with societyís needs. Pound distinguished the "law in books" from the "law in action", and followed Holmes in deploring the increasing separation of the two.

After Holmes, this was the second intellectual seed from which the twentieth century Law and Society movement was spawned. It became the basis for Poundís own "sociological jurisprudence," which, in turn, laid the foundation for studying why there has often existed a substantial "lag" or "gap" between social change and legal change . The Brandeis Brief is the most famous application of Poundís ideas to the actual practice of legal argument . Brandeis and Justice Benjamin Cardozo were the foremost judicial proponents of Poundís ideas (RED5). Here we should note the convergence between the anthropologists highlighting "cultural lag" and the Progressive followers of sociological jurisprudence who sought to explain "legal lag," e.g., why law had lost touch with life -- why, for example, law had often failed to respond to the shift from an agricultural to an industrial society .The idea of "legal lag" figures prominently in the opinions both in Brown v. Board of Education and the assisted suicide cases.

Finally, Law and Society scholars were influenced by the Realistsí reconceptualization of legal rights . Legal Realists emphasized that the way to determine in practice whether a legal right exists is by studying what remedies the law actually allows. In contract law, for example, the Realists shifted the focus to different theories of damages (e.g., reliance vs. expectancy damages) 5.

For Lawrence Friedman "The law and society movement is the scholarly enterprise that explains or describes legal phenomena in social terms." The work of Law and Society falls into a few broad classes:

To begin with, there are studies dealing with the production or shaping of law within a given society: how concrete events, situations, expectations, thoughts, and actions impinge on "Legal" institutions and change their behavior. Where do demands on the legal system come from? What causes them? What forms do they take? Next, there are studies of the operation of the legal system itself, its internal workings, and studies of the transformation process -- what happens to raw demands and raw "fact situations" when they get into the hands of legal professionals. Research on judicial decisionmaking has run into something of a dead end; but perhaps this problem is only temporary. There seems to be growing interest in legislative and administrative decisionmaking. There is also a good deal of interest in the legal profession as such. Lawyers, after all, do much of the work of translating lay demands into legal forms.

Then, there is study of the impact of law. This is a difficult area. It includes the problem of communication within the legal system. After all, a norm or order is useless, unless it reaches some audience; if nobody hears the message, no impact is possible. Beyond that is the study of impact itself. This includes the tangled question of deterrence, the effect of rewards and punishments on behavior.

In recent years, there have been literally hundreds of studies and reports on deterrence. The hard questions are still open: who gets deterred, and when, and how much, and why? Everybody concedes, or should concede, that impact is more than a matter of rewards and punishments. People are influenced by social roles; by family, friends, and neighbors; by religion and tradition; by ideas of right and wrong; by a mysterious something called legitimacy. How these feelings and motives arise, and what effect they have on impact, is a difficult, underdeveloped field. Here, too, it is appropriate to study the symbolic and expressive meanings of legal institutions and legal language. These meanings may ultimately affect the behavior of members of society. Finally, there is the study of feedback. Feedback is a specific form of impact; it is the way responses and behaviors curve back and affect the system itself.

In their earlier work, Law and Society scholars followed the reformist goal of the Brandeis Brief in seeking to demonstrate that law needed to be bought back in touch with actual social practice. With the emergence of value-free social science, this perspective slowly blended into efforts to model social science on the natural sciences by discovering universal, scientific laws of society which assumed that law is the dependent variable, society the independent variable. The main emphasis of works premised on such a view was to demonstrate the limited autonomy or independence of law from social practices or structures of hierarchy. Law was regarded as a "mirror" or "reflection" of reality, not terribly different methodologically from some Marxist versions that treat law as derivative "superstructure" reflecting an underlying "base" of economic influences. This approach also meant that existing social practice was being uncritically set up as a norm or baseline . Many scholars incorporated the prevailing functionalism into their work, which had the apologetic effect of legitimating existing social practice on the grounds that it wouldnít exist if it werenít performing some legitimate social function .

Law and Society scholars were much criticized for associating themselves with value-free social science. In the 1970s, Critical Legal scholars challenged the Law and Society thinkers for a) being reductionist for failure to recognize the "relative autonomy of law;" b) engaging in apologetics -- e.g., underestimating social conflict and social injustice -- through the adoption of a "functionalist" methodology that tended to "explain" or "rationalize" the social function of even unjust and pathological social arrangements

But like the Legal Realists, Law and Society scholars were of two minds on the efficacy of law. During the 1960s and 1970s they engaged in a variety of programmatic or instrumental studies clearly designed to foster or improve activities such as legal services to the poor, welfare and urban renewal. Unlike the "scientists" who saw law as passively responding to social forces, "instrumental" scholars in all of these sub-fields see law as shaping behavior. Just as important, both scientists and instrumental policy scholars enthusiastically endorse the view that law is socially constructed. Lawrence Friedman, one of the founders of the Law and Society movement, maintains that belief in the socially constructed character of legal institutions is one of the central premises of the movement .

 

Many Law and Society writings provide examples of legal change and evolution. There is changing social custom that produced the "silent" revolution in divorce law. Among the most important subjects involving legal change are the effects of the regulatory, welfare, bureaucratic state on the formation and application of law .

Following the Realist tradition, other studies focus on the operation of law. As part of their efforts to bring the law in books back in touch with society, the Realists engaged in empirical studies of how the law actually worked (or did not work) in practice. It led to famous studies of the inefficiency of civil procedure and the organization of courts. This approach is the direct ancestor of the many fruitful Law and Society studies of Alternative Dispute Resolution as an alternative to formal procedure.

In similar manner, during the 1950s, Law and Society scholars began to undertake studies of informal, or quasi-legal, processes and their effect on law. In one of the most famous Law and Society studies of contract cases, Steward Macaulay found that there was widespread non-use of the formal processes of contract law; that informal customs and understandings often substituted for formal provisions; and that formal sanctions were often replaced by informal dispute resolution .

Likewise, Law and Society scholars have recognized the central role of insurance in the process of torts settlements. One author suggests that the so-called insurance crisis of the mid-1980s was actually determined by the business cycles of liability insurance companies. Others focused on the "gap" between formal or official law and social practices. For example, H. Laurence Ross studied the process of insurance claim adjustment in Torts cases to demonstrate that "legal relationship cannot be understood as a product of formal law alone, but must be understood in terms of the interplay between the formal law and aspects of the situations in which law is applied.".

Perhaps the most famous example of the interplay between the formal law and informal dispute resolution is Mnookin & Kornhauser, "Bargaining in the Shadow of the Law: the Case of Divorce." The authors demonstrate the way in which the formal legal rules give one or another party certain "bargaining chips" to shape the outcome of informal processes by threatening to go to court. This is similar to the way plea-bargaining in criminal cases takes place in the shadow of the criminal law; or the way torts settlements take place in the shadow of trials by jury.

The Realistsí external explanations of legal phenomena also looked to the ways in which social causes affect law observance. During the early decades of the century, such studies were especially prominent in the new field of criminology which sought to relate the type and frequency of crime to underlying social causes like poverty, immigration or social disintegrations like the breakdown of the family. Criminologists were also interested in the extent to which law actually shaped social behavior. This led to Impact Studies of the effects of legal rules on behavior. For example, during the campaign against capital punishment in the 1960s,Law and Society scholars engaged in studies to determine whether the death penalty deters murder.

Even in private law, the new attention to the impact of law led scholars to study how legal rules affect behavior. Law and Society scholars are especially interested in whether legal rules have "penetrated" into public consciousness. For example, Law and Society scholars attempted to study the extent to which psychotherapists actually knew and understood the obligations required under the famous California case of Tarasoff v. Regent of the University of California that imposed certain duties on therapists to warn people threatened by their patients . Here are the questions they asked:

  1. Knowledge of Tarasoff 
    1. Do therapists know about Tarasoff? (ans.)
    2. From which sources did therapists learn the most about Tarasoff? (ans.)
  2. Tarasoff, the Reasonable Therapist and the Dangerous Patient
    1. Do therapists understand when Tarasoff applies? (ans.)
    2. Do therapists believe that they can make meaningful assessments of future violence? (ans.)
    3. Do therapists believe that other professionals would agree with their assessment of dangerousness in a given case? (ans.)
  3. Tarasoff, Warnings and Confidentiality
    1. What do therapists believe Tarasoff requires: warning, reasonable care, both or neither? (ans.)
    2. What are the practices of psychotherapists regarding communicating information concerning a patient to third parties? (ans.)
    3. To the extent that therapists do warn third parties, are such warnings made contrary to the therapistís clinical judgment? (ans.)
  4. Tarasoff's Impact on Behavior
    1. Do therapists believe themselves either legally or ethically obligated by the Tarasoff principle of responsibility for the physical well-being of potential victims? (ans.)
    2. Has Tarasoff influenced therapists attitudes regarding appropriate interventions in the treatment of potentially violent patients? (ans.)
    3. Has Tarasoff  discouraged therapists from treating potentially dangerous patients? (ans.)
    4. Has Tarasoff influenced therapists to warn potential victims, involuntary hospitalize potentially violent patients, or otherwise attempt to respond to the legal obligation to protect potential victims? (ans.)

While some Law and Society scholars emphasize the failure of law to affect primary behavior, others stress the unintended consequences that followed from changes in legal rules. For example, one study of the Supreme Courtís constitutional criminal procedure cases, including Gideon v. Wainwright and Miranda v. Arizona concludes that given the sociology of criminal courts and the criminal bar, these decisions "may have a long range effect which is radically different from that intended or anticipated.".

Another study outlines the unintended consequences that flowed from Californiaís "no fault" reform of its divorce law. Since under the previous regime property was divided between a divorcing couple according to "fault," the authors of the reform shifted to equal distribution of marital property. One of the unintended consequences of the change: more forced sales of the family home to provide cash for each of the parties. "The result is increased dislocation and disruption in the lives of minor children (in contrast to the old law pattern in which the wife with custody of minor children was typically awarded the family home)." The study more generally seeks to show that the rule of equal property distribution will produce inequity where one of the two spouses is unequally situated at the time of divorce -- for example, the older housewife without earning potential.

Finally, some of the best work in recent years has been on the legal profession -- its organization, practices and culture. For example, Law and Society scholars have emphasized the mediating role of lawyers and of other legal institutions in maintaining social hierarchy. In one of the most cited Law and Society pieces, Why the "Haves" Come Out Ahead, Marc Galanter identified the structure of legal institutions as decisively affecting outcomes. In particular he distinguished between "repeat players" and "one-shooters" in litigation. "Repeat players" can adapt their settlement or information gathering strategies to the long term process of litigation.

Like all of the social sciences except economics, during the 1980s the Law and Society movement splintered into "positivist" and "hermeneutic" or "interpretive" wings.The positivists, seeking to emulate the models and experimental methods of the natural sciences, insisted that the goal of Law and Society scholars should be to produce universal laws of society modeled on the natural sciences.. By contrast, the interpretivists maintain that it is not possible to have unmediated access to reality; reality must be filtered through socially constructed categories and institutions. Hence, they maintain that it is naive of the scientists to claim that they have direct access to objective truth. The debate between the two groups also expresses an earlier conflict over whether there can be a value-free social science which is able to ignore normative questions of value or prescription in order to concentrate on descriptive studies that can claim the mantle of objectivity. The interpretivists maintain that it is impossible to isolate value questions in the process of creating a research program; that in fact value premises are imbedded in the various paradyms we use to understand the world .

But as the studies explored here show there are ways to reconcile the critical impulse of the interpretivist with the empirical impulse of the positivist. As David Trubek indicates,

A vast number of questions should be explored ... How, for example, do the ideas about what is the proper organization of society, encoded in legal beliefs, affect the way the legal profession behaves? How are lawyersí views of what is possible shaped by legal ideas, and how do these views influence other actors in society? Does the fact that law draws lines between a public and a private sphere influence political struggles? Does the possibility of a legal remedy -- or the lack of one -- make a difference in the organization and expression of social conflict?

Critical law and society scholars, in short, use the insights of critique in a careful investigation of the operation of legal consciousness at all levels of American society.