Law and Sociology
As fields of inquiry, law and sociology share similar terrain.
Both, for example, are concerned with norms that govern human activity and various sets of relationships, such as those between individuals, groups and institutions.
This common subject matter and laws regulatory function in modern society, explain why sociologists ought to be concerned with the legal domain. 2
What social theory has to offer lawyers?
It questions many of the standard assumptions made by jurists and practitioners about the nature of law and its role in social change.Through engagement with sociology, one is able to tap into the rich dialogue that has unfolded over the course of centuries. It can be a challenging encounter due to the intellectual and methodological differences between law and social sciences.
In the nineteenth century, the focus of attention in political and legal philosophies began to swing away from individual rights towards duties, and carried with it an emphasis on the function of law in communal or social existence.3
Factors contributing to the rising concern and interest on law in relation to society
Rapid increase in population and inequalities caused by the industrial revolution.The creation of new rights for specific sections of the community, laws relating to labour and race relations, to consumers and families, and increased state intervention in the regulation of lives. These led to a growing awareness of the deficiencies of traditional legal services.Changing tempo and patterns of modern legal professional practice - concerning the many rather than the few (e.g. legal aid); lawyers are faced with a new set of questions which demand a sort of analysis different from the traditional approach.Pressures for legal reforms, for greater access to justice and for the delegalization of the judicial process better legal representation.4
Buckland describes the change vividly:
The analysis of legal concepts is what jurisprudence meant for the students in the days of my youth. In fact it meant Austin. He was a religion; today he seems to be regarded rather as a disease.
The breath of the current attitude was well summed up by Julius Stone who described jurisprudence as
The lawyers extraversion. It is the lawyers examination of the precepts, ideals, and techniques of the law in the light derived from present knowledge in disciplines other than the law.5
Sociology and Law the Methodological Question
Sociology means, broadly, the study of society of which law is a part.
Faris defines sociology as:
[A] branch of the science of human behaviour that seeks to discover the causes and effects that arise in social relations among persons and in the intercommunication and interaction among persons and groups.
The first serious attempt to apply the scientific method to social phenomena was made by Auguste Comte (1798 1857), who invented the term sociology 6
The methodology of sociology, in relation to the study of law, involves a close analysis of the structure, functions, effects and values of a legal system; this necessitates an investigation of persons, institutions, rules, procedures and doctrines, so that hypotheses and principles might be formulated and tested.
The essence of the sociological jurisprudence - law is a social phenomenon reflecting human needs, functioning in organized system, and embodying within it fundamental principles and substantive rules of the basic values of a society.
The key task of sociological jurisprudence - discovery of the principles governing law as a social phenomenon. 7
Lawyers and Sociologists Views Compared
Sociologist looks at law as the sum-total of legal administration and as a given phenomenon in society (legal sociologist). Lawyer looks at the operation of laws and the conceptual tools of a lawyers equipment in their social and functional setting (sociological jurist ). 8
Nature of Sociological Jurisprudence
It is an intrinsically theoretical approach to the study of the law;It specifically seeks to understand law as a particular social phenomenon, in terms of how it comes into existence, how it operates and the effects that it has on those to whom it applies. This school of law shares similar approach in other analytical schools of thought in jurisprudence, such as Positivism: Its subject matter is the law proper.9
Sociological Jurisprudence and other Schools
What distinguishes it from the other schools of jurisprudence is its methodology.
It seeks to examine closely the workings of society in general, in order to find therein the factors which determine the nature of law. It has historically relied on the findings of social sciences, such as sociology, as well as other disciplines, including historical, political and economic studies, to help explain the nature of law.10
Sociological jurisprudence has a long history.
It emerged from the first time when it was realized that a study of the various aspects of social life could assist in understanding the nature and workings of the law.
Its place in jurisprudential literature can be traced as far back as the writings of David Hume and Montesquieu. 11
David Hume in his Treatise on Human Nature (1740) argued that law was a developing social institution, which owed its origin not to mans nature, but to social convention.
Charles de Montesquieu, in his LEsprit des Lois (The Spirit of Laws) (1748) put forward the view that law originated in custom, local manners and the physical environment. A good law, he maintained, conformed to the spirit of society.
Through the years, theorists on the nature of society, such as Comte, Marx, Weber and Durkheim, further contributed to sociological jurisprudence, putting forward views on how various social phenomena influenced the nature of law.
Central Ideas in Sociological Jurisprudence
A general belief that law is only one of a number of methods of social control. Law is not unique in its functions and place in society.A rejection of the notion that law is a closed system of concepts, standards and structures, and that it can stand on its own in its operation. Sociological jurists reject a jurisprudence of concept. Emphasis on the actual operation of law the law in action arguing that this is where the real nature of the law manifests itself, rather than in textbooks and other elementary sources.
Rejection of the natural law approach which proposes that there are certain sets of principles which describe absolute values and which then become, or should be, the basis of all law. Adoption of relativist approach, which regards law as being the product of a socially constructed reality.A general interest in utilizing the findings of the sociological science in understanding the nature of law and, therefore, to make law a more effective tool of social justice.An abiding concern among sociological jurists with social justice. Views, however, differ as to what constitutes social justice and how best this may be achieved. 14
Sociological Theories or Perspectives
A theory is a systematic explanation for a set of laws and facts, or an attempt to make sense out of observations.
The aim of sociological theory is to gain an understanding of society.
A theoretical paradigm is an established theory that guides thinking and research in sociology.
There are three main theoretical paradigms:
structural functionalism, social-conflict, and symbolic interactionism 15
This is a macro theory (which means it looks to large-scale patterns of society to explain social phenomena).
It views society as a whole unit made up of inter-related parts that function together, rather like a persons body, which has a number of systems/organs. Like the body, when one organ/system does not work properly, the entire body or society becomes sick, or dysfunctional. When the parts work together, society is stable.
The pioneers of structural functionalism were Auguste Comte, Emile Durkheim, Herbert Spencer, Talcott Parsons, and Robert Merton.
Some writers classify this perspective as consensus theory.16
Basic premise - society is composed of competing groups, which are not harmonious.
Focus is on inequalities in society and the struggle to gain control over scarce resources.
Once a group achieves dominance over others, it seeks to use the available mechanisms of social control (law is one of them) to its advantage in order to maintain a dominant position.
Karl Marx (18181883) is the most famous social-conflict theorist Marxist School. Another conflict school is Institutional Theorists.17
Basic premise - symbols, or things to which we attach meaning, are the basis of social life. Language is one of the most important symbols.
It is a micro theory that looks at individuals or small-scale interactions.
It maintains that behaviors can only be understood in the context of the setting and society in which they exist. Meanings arise out of social interactions with others, and symbols make life possible.
Important symbolic interactionists are Max Weber (1864-1920), George Herbert Mead (1863-1931), and Erving Goffman (1922-1982). 18
Application of Social Theories to Law
Marx regards law as a means of securing and legitimizing dominant socio-economic relations. Both Durkheim and Parson reflect on state laws role as a mechanism of normativ