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RTICLES
deals and Practices in the Study ofLaw*Susan S. Silbey
Department ofSociology, Wellesley College
The union of law and social science is not very old. Indeed in
thehistory of human scholarship, no social science is very old.
Themarriage with law, however, is more recent than the application
ofsocial science to other aspects of social life. This brief
existence hasbeen characterized by an uncertainty in the
relationship and aperiodic need to examine the premises of a
sociology of law. Inresponse to such uncertainity and the present
need to examine ourpremises, this paper offers the following
proposition: Despite thebroad interest of social scientists in law
and the legal system as arecognizable set of practices, much
research in this area suffers fromcongenital idealism. This
idealism takes several forms and all areantithetical to the
premises and assumptions of a scientific study oflaw. The sociology
of law, I envision, is consistent with the twogreat traditions of
social scientific inquiry following Marx an dWeber (Web er, 19 46;
I954; 1978; Cain and Hunt, 1978). Although
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22 Legal Studies Forummust use the perspective of the actor as
THE topic of analysis.(Lofland and Lofland, l984:l 19). Thus
legality is of interest, not toachieve it, but to examine,
critique, transcend its takenforgrantedness. This perspective
treats law as ideology by recognizingand delineating the ways in
which legal behavior becomes ordinary,taken-for-granted, and thus
legitimate. 17Alvin Gouldner called this process of discovery
andtranscendence a democratic enterprise in which all claims
comeunder scrutiny (Gouldner, l979:59), in which the world is
politicalrather than necessary. The objectification of social
arrangements,such as the law, is perhaps the most fundamental form
ofmystification. But it is the task of a social science to
transcend this,to engage in what Gouldner called the culture of
critical discourse,to examine what is taken for granted (including
our own study of whatis taken for granted). We study not only the
present, according toGouldner,
but also the anti-present, the critique of the present andthe
assumptions it uses. . . . In other words the culture ofcritical
discourse must put its hands around its own throat,and see how long
it can squeeze. Culture of criticaldiscourse always moves on to
auto-critique, and to theis critique of that autocritique. There is
an unending regressin it, a potential revolution in permanence. . .
.A social science of law on this foundation, embodies that
unceasingrestlessness and (indeed) lawlessness that the ancient
Greeksfirstcalled anomos and that Hegel called the bad infinty
(Gouldner,l979:59-60), and which denies and challenges any form of
idealism._ _ an unu
17 cf. The key to understanding any ideology is to be able tosee
what is taken as given (Brigham, 198456).
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