legal theory: law and society | |
Law and Society |
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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 Realism’s 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 society’s 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 Pound’s 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 Pound’s ideas to the actual practice
of legal argument . Brandeis and Justice Benjamin Cardozo
were the foremost judicial proponents of Pound’s 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 Realists’ 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 wouldn’t exist if it weren’t 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 Realists’ 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:
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 Court’s 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 California’s "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 lawyers’ 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.